Work Injuries Claims (Under Employees' Compensation Ordinance or otherwise)

In Hong Kong, if you encounter an accident and suffer an injury in the course of employment, you may seek compensation from your employer under the Employees’ Compensation Ordinance. Generally speaking, the employer should have bought Employees' Compensation Insurance coverage for you, and normally the insurance company would pay out the compensation to you on behalf of your employer.

Common Examples of Work Injuries

• Construction workers who slip and fall, are tripped over, or hit by objects falling from height in a construction site
• Restaurant kitchen staff who cut his or her fingers, slip and fall, are burnt or are tripped over in the kitchen
• Restaurant waiters who are burnt by hot soup, slip and fall or are tripped over inside the restaurant
• Domestic assistants who slip and fall, are tripped over, are bitten or scratched by animals like a pet cat and dog owned by the employers
• Drivers and workers on the transportation vehicles who encounter a traffic accident
• Transportation workers who slip and fall, trip and fall, are hit by objects falling from height etc.

On top of that, if you are diagnosed with occupational diseases defined under the Employees’ Compensation Ordinance, your employer will be liable to compensate you as per the Ordinance.

Example of Common Occupational Diseases

• Office clerical work: Spasm of hand and forearm caused by prolonged periods of handwriting, typing or other repetitive movements of the fingers, hand or arm
• Manual Labour Work: Hand cellulitis caused by severe or prolonged friction or pressure on the hand
• Manual Labour Work: Knee bursitis or cellulitis caused by severe or prolonged friction or pressure on the knee
• Manual Labour Work: Carpal Tunnel Syndrome (CTS) caused by repetitive use of hand-held powered tools whose internal parts vibrate so as to transmit that vibration to the hand
• Medical Staff infecting Severe acute respiratory syndrome (SARS)
• Occupational asthma etc.

How to calculate your compensation?

If you unfortunately suffer from work injuries, you may make a claim under the Employees’ Compensation Ordinance. Compensation is mainly divided into 3 categories:

1. Incapacity
2. Medical-related expenses
3. Compensation for requiring the care and attention of another person

1. Incapacity

The compensation for incapacity is calculated based on the income of the injured. It can be sub-divided into two types, (A) temporary incapacity and (B) permanent incapacity.

Temporary incapacity

If the injury is temporary, the injured can be periodically compensated for the loss of earning during the sick leave period. The compensation formula is based on the income of the injured:

(Monthly income when the accident took place – monthly income after the accident took place) x 4/5

The compensation shall be paid out periodically on normal payday. However, if the period of temporary incapacity exceeds 24 months, or exceeds the extension period allowed by the Court (that extension period cannot exceed 12 months), the injured is no longer entitled to receive the said payment. The employee will then be regarded as suffering from permanent incapacity, and the compensation will have to be re-assessed.

It is noteworthy that victims of work injuries must provide their employers with the original copy of medical certificates. To protect your rights, it is advised to photocopy the certificate for record-keeping.

Permanent incapacity

Depending on the severity of injuries, permanent incapacity can be classified as total and partial incapacity. Compensation is mainly based on the victim’s income, age and other relevant factors.

The formula for calculating the permanent total incapacity is as follow:

*In calculating the compensation, the maximum monthly income is HK$35,650.35,600 .

As to permanent partial incapacity, the calculation is as follows:

(Amount of compensation due to permanent total incapacity) X (Percentage of loss of earning capacity)

The percentage of loss of earning capacity is assessed by the Employees’ Compensation Assessment Board of Labour Department.

Example:

A worker was injured due to a fall during work, resulting in bone fracture of the left heel. After the evaluation of Employees’ Compensation Assessment Board and medical experts, and considering the practical difficulty in his future career, the Court held that the appropriate percentage of loss of earning capacity would be 30%. The employee was awarded HK$375,840 for the permanent partial incapacity.

2. Medical-related expenses

If the injured employee needs to receive treatment, or fabricate prosthetics and other external devices, all incurred costs can be compensated.

Suppose the employer does not provide free medical treatment, the employer is responsible for the all medical expenses for all treatments conducted by registered medical practitioners incurred during the period of the employee's injuries. The employer must also reimburse the said medical fee within 21 days after receiving the medical receipts. The maximum medical fee per day is as follow:

• Hospitalisation OR out-patient clinic: HK$200 or
• Hospitalisation AND out-patient clinic service on the same day: HK$280

The maximum compensation for prosthetic or other external devices is as follow:

• Fee of providing and fabricating the prosthetic or other external devices: HK$41,750; and
• The possible maintenance and repair fee within 10-year after the prosthetic or other external devices are fabricated: HK$126,490.

3. Compensation for requiring the care and attention by another person.

The injured may have an inconvenient life after getting injured in the workplace and may have to rely on other persons to conduct his daily activities. Therefore, the injured can claim for this additional amount which is to be awarded by Court or settled with the employer for a compensation amount which has to be agreed by the Commissioner for Labour. The maximum compensation is HK$599,230.

Example:

A man fell from height in a construction site, resulting in head injuries and multiple fractures. He had to stay at home after discharge from hospital, and had to rely entirely on his mother for daily care for a long period of 18 months. The Court held that he was entitled to $108,000 compensation for the loss of income suffered by his mother.

*(The above information, including, the amount of compensation, is based on the law of Hong Kong as of 9th April 2020)

The Deadline to Report to Labour Department

• 7 days if the workplace accident is fatal
• 14 days if the workplace accident is non-fatal

When workplace injury occurs, the employees’ pre-existing conditions, for example, pre-existing diseases, would not affect the claim and the compensation.

The Deadline to Apply for Employees’ Compensation

The deadline for an employee to apply for compensation is 2 years from the date of the accident. As preparing information and evidence takes time, it is advised to kick start the action as soon as possible.

To facilitate the claim, please keep the following documents:

• Income proof before and after the accident, e.g. income statements and salaries tax returns etc.;
• Receipts of medical expenses, medicine fees, purchase of medical equipment and devices; and
• Receipts and proof of other additional expenses incurred owing to the accident.

What count as an employment relationship?

Generally, the Employment Ordinance only applies to an employee under an employment contract. However, although some people are stated as “self-employed persons”, the Court would look into the terms of employment / engagement, the actual duties and conditions of work etc. to determine if an employment relationship exists. Some factors are listed below:

• The ability to control the scope of work;
• Provider of the necessary equipment and venue;
• The owner of the business for which the scope of work is provided;
• The economic risk that the employee shoulders; and
• All other relevant factors.

CPH Legal is experienced in representing injured workers claiming compensation. We provide each client with professional legal advice and analysis that is fact-sensitive, and deploy appropriate strategies to ensure the best interest of the client is protected.