Hong Kong - Asia Monitor Resource Centre 4- Hong Kong.pdf · Hong Kong, and to crew members of a Hong Kong ship, and any ... A3 Dysbarism, including decompression sickness, barotraumas

I. Legal framework for employees’ compensation

1.1 Employees’ Compensation Ordinance

Employees in Hong Kong are protected by the Employees’ Compensation Ordinance (ECO) (Chapter 282 of the Laws of Hong Kong) when they sustain an injury or die or suffer from an occupational disease.

The ordinance, which was enacted in 1953, explains the rights and obligations of employers and employees, regarding injuries or death caused by accidents during the period of employment, or by prescribed occupational diseases listed under the ordinance. There are 52 kinds of occupational diseases covered by the compensation system. However, two diseases, pneumoconiosis and mesothelioma, are covered separately under the Pneumoconiosis (Compensation) Ordinance and occupational deafness under the Occupational Deafness (Compensation) Ordinance). In addition, the Pneumoconiosis Compensation Fund Board administers compensation to sufferers of pneumoconiosis and mesothelioma; and the Occupational Deafness Compensation Board administers occupational deafness’ compensation.

An employer must be in possession of a valid insurance policy to cover his liabilities both under the Employees’ Compensation Ordinance and under common law for the work injuries for his employees. This means that any compensation paid will come from this insurance.

1.2 Application of the Ordinance 1

The Employees’ Compensation Ordinance applies to all full-time or part-time employees who are employed under contracts of service or apprenticeship, during working hours, at the work place and/or in the

1 Taken from A Concise Guide to the Employees’ Compensation Ordinance, Hong Kong.

Hong KongBy Chan Kam Hong

OSH Legal Resources Handbook74

course of employment, and sustain an injury or occupational disease or die as a result of an accident.

The Ordinance also applies to employees who are employed in Hong Kong by local employers and injured while working outside Hong Kong, and to crew members of a Hong Kong ship, and any person employed in any capacity on board of a Hong Kong ship. If the crew member of a foreign ship sustains a personal injury outside of Hong Kong and he/she has been recruited or engaged in Hong Kong, the ordinance also applies once the employer submits to the jurisdiction of the courts of Hong Kong.

There are two more situations in which this ordinance applies: employees who are traveling or driving a vehicle operated or arranged by the employer are covered; and employees are also covered if they are injured when traveling to or from work within four hours of the announcement of dangerous weather conditions, namely the hoisting of a typhoon signal No.8 or a higher signal and the announcement of a red or black rainstorm warning.

The Ordinance does not apply to: casual employees (unrelated to the employer’s job nature); freelance workers, e.g., those who work outside of the workplace, such as machining parts at home; members of the employer’s family who live with him but do not work for the organisation.; and self-employed persons.

Liability of the Employer

If an employee sustains an injury, occupational disease or dies as a result of an accident arising out of and in the course of his employment, his employer is in general liable to pay compensation, even if the employee might have been at fault or negligent. In most cases, employers must obtain insurance cover for their employees.

According to Section 15 of the ordinance, an employer must give notice of an accident to the Commissioner for Labour. In cases of injury or occupational disease, the employer must notify the Commissioner for Labour within 14 days. If an employee dies as a result of accident, the employer must notify the Commissioner for Labour within 7 days. If the employer fails to fulfil the above requirements, or makes or furnishes any false or misleading statement to the Commissioner for Labour, he or she will commit an offense and is liable to a maximum fine of $50,000.

In most cases, there are four ways in which an employee’s compensation claim may be settled. They are 1) direct payment by employer; 2) determination of compensation by agreement according

Country Report: Hong Kong 75

to the Ordinance; 3) by Certificate of Compensation Assessment issued by the Commissioner for Labour; and 4) a determination by the court.

Liability of the Employee

The employee is also responsible as regards the notification of an accident. After being injured, the employee should notify the employer of the accident as soon as possible. Failure to give immediate notice may delay and jeopardize the employee’s claim for compensation.

1.3 Compensation Terms

Compensation cases and terms are classified in two categories: fatal cases and non-fatal cases. In the case of a death, the amount is determined with reference to the age and monthly earnings of the deceased employee as follows:

Age of Deceased Employee Amount of Compensation

Under 40 84 mths’ earnings

40 to under 56 60 mths’ earnings

56 or above 36 mths’ earnings

However, it should be noted that the maximum monthly pay used in calculating compensation for death is HK$23,580. Meanwhile, the minimum (total) amount of compensation for death as a result of a workplace injury or disease is $340,040. The employer is also responsible for reimbursing the expenses of funeral and related medical fees up to a maximum of $70,000.

Cases of occupational injury or disease are included in non-fatal cases. No matter how the employee is injured, he or she will receive four-fifths of his or her monthly earnings during the period of temporary incapacity. Unless an employer can provide adequate free medical treatment to the employee, the employer must pay the medical expenses, including fees for consultation, any surgical or therapeutic treatment, nursing costs, and hospital accommodation as an in-patient, medicines, curative materials and medical dressings. The maximum amounts of daily medical expenses for which the employer is responsible are as follows:

or minimum amount of compensation, whichever is higher


The medical expenses for each day of stay in the $200hospital where an employee is given medical treatment as an in-patient

The medical expenses for each day on which an $200 employee is given medical treatment other than as an in-patient in a hospital

The medical expenses for each day on which an $280 employee is given medical treatment both as an in-patient in a hospital and other than as an in-patient in a hospital

The amount of compensation paid to an injured employee is calculated based on the degree of incapacity. Compensation for permanent total incapacity due to a work injury will be calculated as follows:

Age of Injured Employee Amount of Compensation

Under 40 84 mths’ earnings

40 to under 56 60 mths’ earnings

56 or above 36 mths’ earnings

When there is permanent partial incapacity resulting from the injury, the amount of compensation is a percentage of the compensation payable for permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury. The formulae will be “amount of compensation due to permanent total incapacity times the percentage of permanent loss of earning capacity”.

Under the ordinance, if an employee sustains an injury and requires a prosthesis or surgical appliance, his/her employer is liable to pay the initial costs of supplying and fitting the prosthesis or surgical appliance, subject to a maximum amount of $33,460 and the estimated costs for repairing and renewing the item during a period of 10 years after the initial fitting of the item, capped at a maximum amount of $101,390. Furthermore, the specified treatment subsidy will be paid up to a maximum amount of $422,000.

or minimum amount of compensation, whichever is higher


1.4 List of occupational diseases

In addition to pneumoconiosis, mesothelioma and occupational deafness, the Employees’ Compensation Ordinance lists the following occupational injuries and diseases.

A. Injuries caused by physical agentsA1 Inflammation, ulceration or malignant disease of the skin

or subcutaneous tissues or of the bones, or blood dyscrasia, or cataract, due to electro-magnetic radiations (other than radiant heat), or to ionizing particles

A2 Heat cataractA3 Dysbarism, including decompression sickness, barotraumas

and osteonecrosisA4 Cramp of the hand or forearm due to repetitive movementsA5 Subcutaneous cellulites of the hand (Beat hand)A6 Bursitis or subcutaneous cellulites arising at or about the

knee due to severe or prolonged external friction or pressure at or about the knee (Beat knee)

A7 Bursitis or subcutaneous cellulites arising at or about the elbow due to severe or prolonged external friction or pressure at or about the elbow (Beat elbow)

A8 Traumatic inflammation of the tendons of the hand or forearm (including elbow), or of the associated tendon sheaths

A9 Carpal tunnel syndrome

B. Caused by biological agentsB1 AnthraxB2 GlandersB3 Infection by leptospiraB4 Pulmonary disease due to the inhalation of the dust of

mouldy hay or other mouldy vegetable produce, and characterized by symptoms and signs attributable to a reaction in the peripheral part of the bronchopulmonary system, and giving rise to a defect in gas exchange

B5 Infection by organisms of the genus brucellaB6 TuberculosisB7 Parenterally contracted viral hepatitisB8 Infection by streptococcus suisB9 Avian chlamydiosisB10 Legionnaires’ disease


B11 Severe acute respiratory syndromeB12 Avian influenza A

C. Caused by chemical agentsC1 Poisoning by lead or a compound of leadC2 Poisoning by manganese or a compound of manganeseC3 Poisoning by phosphorus or an inorganic compound of

phosphorus or the anti-cholinesterase or pseudo anti-cholinesterase action of organic phosphorus compounds C4Poisoning by arsenic or a compound of arsenic

C5 Poisoning by mercury or a compound of arsenicC6 Poisoning by carbon bisulphideC7 Poisoning by benzene or a homologue of benzeneC8 Poisoning by nitro-or amino-or chloro-derivative of benzene

or of a homologue of benzene, or poisoning by nitro-chlorobenzene

C9 Poisoning by dinitrophenol or a homologue or by substituted dinitrophenols or by the salts of such substances

C10 Poisoning by halogen derivatives of hydrocarbons of the aliphatic series

C11 Poisoning by diethylene dioxide (dioxan)C12 Poisoning by chlorinated naphthaleneC13 Poisoning by oxides of nitrogenC14 Poisoning by beryllium or a compound of berylliumC15 Poisoning by cadmiumC16 Dystrophy of the cornea (including ulceration of the corneal

surface) of the eyeC17 Primary epitheliomatous cancer of the skinC18 Chrome ulceration including perforation of nasal septumC19 Primary neoplasm of the epithelial lining of the urinary

tract, (renal pelvis, ureter, bladder and urethra) including papilloma, carcinoma-in-situ and invasive carcinoma

C20 Peripheral poly-neuropathyC21 Localised new growth of the skin, papillomatous or keratoticC22 Occupational vitiligo

D. Caused by miscellaneous agentsD1 Inflammation or ulceration of the skin produced by dust,

liquid or vapour (including the condition known)D2 Inflammation or ulceration of the mucous membrane of the

upper respiratory passages or mouth produced by dust, liquid or vapour


D3 Carcinoma of the nasal cavity or associated air sinuses (nasal carcinoma)

D4 ByssinosisD5 Occupational asthma

II. Applying for compensation

The employer must notify the Labour Department of a worker’s injury within 14 days, otherwise the worker must report to the Labour Department himself/herself after 14 days. If a doctor certifies that the worker needs to take a certain period of sick leave, then the injured worker will receive 80 percent of his/her salary during this period of sick leave. Once the doctor judges the injury of the employee is becoming more stable, the case will be transferred to the Employees’ Compensation Assessment Boards that are appointed by the Commissioner for Labour. The percentage of the loss of earning capacity due to the injury or injuries of the employee will be examined and accessed.

The procedure to obtain compensation for an occupational illness or disease is the same as that for an occupational injury.

2.1 Non-fatal cases

The procedure for the notification of an accident once the employee sustains an injury or occupational disease is as follows:

1) Notify the Commissioner for Labour2) Receive four-fifths of one’s monthly earnings during the

period of temporary incapacity3) Accept permanent incapacity assessment. If the employee is

satisfied with the result, he/she will get the compensation and the case will be closed.

Should the employee want to apply for a re-assessment of his or her injury, he should follow these steps:

If he or she is not satisfied with the result, the employee must apply for re-assessment to the Labour Department by filling a simple form within 14 days. If satisfied with the result of the re-assessment, the employee will receive the compensation and the case will be settled. If the employee is not satisfied the result, the employee must appeal to the district court within six months directly or through a lawyer representative.


2.2 Death in the workplace

The procedure in the case of a fatality at work is the same as that for non-fatal cases. The employer must notify the Commissioner for Labour. Then, the family of the victim needs to decide whether to settle the case through the Commissioner for Labour or in court. In either case, if the family is satisfied with the results, the family will receive the compensation and the case is concluded

Generally, an application for compensation in an injury case or in the case of a fatal accident will be settled by Labour Department within 24 months.

2.3 Alternate route to seeking compensation – Civil suit

Whereas the cases above are handled by the administrative branch of government (i.e., the Commissioner for Labour), the victim of an occupational disease or injury or the victim’s family may choose to seek redress through the courts in a civil suit.

If the victim thinks that the employer must take responsibility for his or her injury, in cases where, for example, the employer failed to provide suitable tools and thereby caused the accident directly or indirectly, the victim themselves have the rights to claim for Negligence Compensation through the courts. Claim for Damages by Action at Common Law will be settled by Labour Department within 36 months of the accident causing the injury, or in the case of a fatal accident.

However, sometimes cases are more complex than usual if the employer doubts the victim’s claims about his or her injury. The following case is one such example.

Case study 1 – Employer disputes the victim’s claim

Mr. Wong worked as a cleaner in a school. One day, he strained his back when he was carrying some heavy cases. His lower back in the waist area was painful, but he did not tell anyone since he thought he would be fine after a rest and after putting some liniment on it. He continued to work for the rest of the day. However, after a few days, his back became more and more painful, so he went to see a doctor. When he reported to the employer that he had hurt his back a few days ago during working hours, his employer was suspicious and believed that Mr. Wong had injured himself at home or at a place other than the school, his workplace.


After receiving this response from his employer, Mr. Wong reported his injury to the Labour Department which then investigated the case. However, the result of the Labour Department’s investigation was “neutral”. Thus, Mr. Wong took his employer to court to settle the case under Common Law. Finally, the case was settled with a compromise. Mr. Wong received a lump-sum amount in compensation.

The Association for the Rights of Industrial Accident Victims assisted Mr. Wong in applying for Legal Aid to hire a lawyer. (For details on Legal Aid in Hong Kong, see Annex II.) In cases similar to this one, because of the existence of unfavourable factors, victims need to fight for compensation in court and not via the Labour Department but through a civil suit. Victims need to put out extra time, money and energy on the process of compensation. It definitely shows that once getting injured, the employee must report to the employer at once to avoid unfavourable factors.

2.4 Compensationtermsforspecificoccupationaldiseases

In general, compensation for most occupational diseases is as same as the compensation for a workplace injury or death, except in the case of pneumoconiosis and mesothelioma and occupational deafness.

Pneumoconiosis and mesothelioma

In Hong Kong, most pneumoconiosis and mesothelioma patients are construction workers who have contracted these diseases after long and short periods of inhaling dust while working on a construction site.

A person who is suffering from pneumoconiosis and/or mesothelioma and has been a resident of Hong Kong for five years or more at the date of the notification of the claim, or has been a resident in Hong Kong for less than five years at such date, if he contracted pneumoconiosis or mesothelioma (or both) in Hong Kong, then he or she is eligible for the following compensation:

Monthly compensation for pain, suffering and loss of amenitiesMonthly compensation for incapacityCompensation for a period prior to the date of diagnosisCompensation for care and attentionExpenses for medical treatmentExpenses for medical appliancesCompensation for death resulting from pneumoconiosis or


mesothelioma (or both)Compensation for bereavement; andFuneral expenses

Contributions to the fund which is administered by the Pneumoconiosis Compensation Fund Board are mostly derived from levies on the employing construction company, which has direct responsibility for the welfare of their workers.

The Pneumoconiosis Compensation Fund Board

This board was established in 1980 under the Pneumoconiosis and Mesothelioma (Compensation) Ordinance. According to the ordinance, the board has the following functions:

To administer the fund;To make recommendations to government with respect to the rate of levy;To conduct and finance educational, publicity, research and other programmes to prevent pneumoconiosis and mesothelioma;To conduct and finance programmes for the rehabilitation of persons suffering from the above diseases;To administer funds received from government and designated by government as ex gratia payments to persons diagnosed before 1 January 1981 to be suffering from pneumoconiosis;To perform other duties as are imposed on it by the ordinance;

The fund board is also charged with assessing the amount of levy, due from the contractor in respect of the construction operation/work or the stage of construction operation/work. A demand note is then issued. The contractors and quarry operators must pay the levy to the Pneumoconiosis Compensation Fund Board. The levy rate is 0.15 percent in respect of the construction operation/work or the stage of construction operation/work. For victims suffering from pneumoconiosis and mesothelioma since 1981 or before, compensation is paid directly by government. For victims contracting the disease after 1980, their compensation is derived from the contractors’ levy.

Occupational deafness

Occupational deafness is a kind of sensorineural hearing loss. It is caused by prolonged exposure to noise at work which results


in damage to the nerve cells of the inner ear. Once destroyed, these nerve cells would not recover. The resulting hearing impairment will be permanent, leading to hearing loss. When a person works in a noisy environment, the damage caused to his hearing will be in direct proportion to the intensity of the noise and the duration of exposure time.

According to the Occupational Deafness (Compensation) Ordinance, a claimant should have had at least 10 years of employment in aggregate in specified noisy occupations in Hong Kong or at least five years in the case of four occupations that are particularly noisy.

The calculation of permanent incapacity compensation is as follows:

Age of claimant Amount of Compensation

Under 40 96 months’ earnings X % of permanent incapacity

40 to under 56 72 months’ earnings X % of permanent incapacity

56 or above 36 months’ earnings X % of permanent incapacity

There is an additional $36,000 subsidy for the purchase, fitting, repair or maintenance of hearing devices.

The Occupational Deafness Compensation Board

This board was established under the Occupational Deafness (Compensation) Ordinance, Chapter 469, on 1 June 1995. Its functions are as follows:

Administer the Occupational Deafness Compensation Fund;Process and determine applications for compensation in respect of occupational deafness;Conduct or finance educational and publicity programmes for the purpose of preventing occupational deafness;Reimburse or directly pay any expenses reasonably incurred in the acquisition, fitting, repairing or maintenance of hearing assistive devices for occupational deafness;Conduct or finance programmes for the rehabilitation of persons suffering from occupational deafness.

The Occupational Deafness Compensation Board is financed by a levy on the employees’ compensation insurance. The government,


as an employer, also makes a contribution to the board. Furthermore, a levy is also placed on the employees’ compensation insurance and government’s contribution. The Employees’ Compensation Insurance Levies Management Board is to distribute a portion of its net resources to the Occupational Deafness Compensation Board on a quarterly basis. The resources of the Employees’ Compensation Insurance Levies Management Board consist of a levy imposed on all employees’ compensation insurance premiums. The present rate of levy is 5/8 of a percent on or after 1 July 2010.

2.5 Statistics

Occupational deaths and injuries

The number of occupational fatalities has been on the rise in the past three years, after dipping to a 10-year low in 2009 with the fall in the level of economic activity in that year. (See Figure 1 below.)

Figure 1

Source: Labour Department of Hong Kong

Occupational Fatalitiy RateNo. of Occupational Fatalities

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

No. of Occupational Fatalities

Fatalitiy Rate per1000 Employees

240

220

200

180

160

140

Number of Occupational Fatalitiesand Fatality Rate per 1000 Employees

2002 to 2011

210

171

187 187 187

172

181

165

183

191

0.11

0.10

0.09

0.08

0.07

0.06

0.086

0.072

0.0770.075 0.073

0.0660.068

0.063 0.068 0.069


Then, the number of occupational fatalities remained the same from 2004 to 2006, while the fatality rate per 1,000 employees dropped from 0.075 to 0.073. Afterwards, there was a significant decrease in both numbers. However, starting from 2009, an increase in the number of occupational fatalities was seen, rising from 165 to 191.

An analysis of those figures shows that in 2011, there were 191 occupational fatalities, a 4.4 percent rise over 2010, but a 9.0 percent fall from the 210 fatalities in 2002. However, the 2011 figure is 7.1 percent higher than the average of the past five years (178.4). In 2011, the number of industrial fatalities in the construction industry was 23, higher than 9 in 2010. Thus, it is very obvious to see that the numbers of occupational fatalities and fatality rate per 1,000 employees has increased in the recent three years.

The number of occupational injuries and the injury rate per 1,000 employees in Hong Kong has been in a downtrend from 2006 to 2011, the last year for which full year figures are available. (See Figure 2 below.) In addition, the 2011 statistics suggest a big improvement in occupational health and safety in Hong Kong since 2002. In 2011, there were 40,578 cases of occupational injuries, a decline of 13.7 percent compared to 47,023 cases in 2002. The injury rate also fell to 14.6 percent from 19.2 percent, a drop of nearly 24 percent, suggesting that despite a rise in the workforce, accidents and injuries have declined substantially.

Figure 2


Number of Occupational Injuriesand the Injury Rate per 1000 Employees

2002 to 2011

No. of Occupational Injuries Occupational Injury Rate

No. of Occupational Injuries

Injury Rate per1000 Employees

70 000

60 000

50 000

40 000

30 000

20 000

10 000

0

50454035302520151050

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

47 02342 022

44 025 44 267 46 937 43 979 41 90039 579

41 907 40 578

19.2 17.7 18.1 17.8 18.4 16.9 15.815.0 15.5 14.6


Of the 40,578 occupational injuries in 2011, 84 percent were seen in the following major economic sectors of Hong Kong: Import/export, wholesale and retail trades, accommodation and food services 33.4 percent; public administration, social and personal services 20.4 percent; financing, insurance, real estate, professional and business services, 16.9 percent; transportation, storage, postal and courier services, information and communications 13.3 percent; and other 16.0 percent.

Figure 3


In the first three quarters of 2012, the total number of occupational injuries was 30,152, while there were 134 cases of fatalities. (See Figure 4 below.) Compared with the first three quarters of 2011, there appears to be a decrease of 0.3 percent.

PublicAdministration,

Social and PersonalServices 20.4%

FinancingInsurance, Real

Estate, Professional and Business

Services 16.9%

Import/export,Wholesale andRetail Trades,

Accommodation andFood Services

33.4%

Transportation,Storage, Postal andCourier Services,Information andCommunications

13.3%

Others16.0%

Occupational Injuries in All Workplaces- Distribution by Major Economic Activities

2011


Figure 4

Summary of Occupational Safety and Health Statistics of 1st Three Quarters of 2012

1st Three Quarters 1st Three Quarters Percentage of 2011 of 2012 change in No. of Cases No. of Cases figure

(a) Industrial Accidents

Construction 2301(16) 2354 (13) +2.3%

Food and Beverage 5376 4680(1) -12.9% Services

Manufacturing 1472(4) 1510 +2.6%

Others 1080 (2) 966 (1) -10.6%

Total 10229 (22) 9510 (15) -7.0%

(b) Occupational Injuries 30256 (147) 30152 (134) -0.3%


A breakdown of the 2011 and 2012 figures shows that the highest number of workplace accidents resulting in injuries was seen in the Accommodation and Food Services sector, followed by the Public Administration and personal and social services sector. (See Figure 5 below.)

Industry Section 1 st Three Quarters of 1st Three Quarters of 2011 2012

Agriculture, forestry and fishing 14 13

Mining and Quarrying 1 0

Manufacturing 2053 (13) 2111 (8)

Electricity, gas and waste 155 (3) 124 management

Construction 2359 (31) 2426 (27)

Import/export, wholesale 3251 (9) 3327 (21) and retail trades

Transportation, storage, 3809 (24) 3654 (11)postal and courier services

Accommodation and food services 6837 (8) 6157 (8)

Information and communications 282 283 (1)

Financing and insurance 155 185 (1)

Real estate 1530 (7) 1731 (10)

Professional and business services 3450 (30) 3627 (33)

Public administration, and social 6120 (18) 6247 (11) and personal services

Other industries 240 (4) 266 (3)

TOTAL 30256 (147) 30152 (134)

Note: Figures in brackets denote the number of facilities.


2.5.2 Occupational diseases

The Hong Kong ordinance lists 52 kinds of occupational diseases which are entitled to receive the same compensation as that payable to an employee injured or killed at work. In 2011, there were 353 cases of confirmed occupational diseases, compared with 229 in 2010. (See Figure 6 below.) In the first quarter of 2012, there were 227 cases of confirmed occupational diseases. This is 11.0 percent less than in the nine months of 2011, when there were 255 cases. (See Figure 7 below.) However, the list excluded many chronic health problems which are clearly work-related and these sufferers are not entitled to compensation. For example, varicose veins are very common among teachers. However, varicose veins are not listed as an occupational diseases. The government has said it is difficult to proof a direct relationship between their occupation and the disease. The same situation is seen in the catering sector. Thus, activists must to fight to expand the list of occupational diseases which receive compensation.

Figure 6


500

400

300

200

100

02002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Number of Confirmed Occupational Diseases in2002-2011

364

258 251 256 264

177 204268

229

353


Figure 7Confirmed cases of occupational diseases in Jan-Sept, 2012

1st Three Quarters of 2011 1st Three Quarters of 2011 Percentage No. Cases No. Cases change

255 227 -11.0%


The most common occupational diseases confirmed in 2011 were occupational deafness, tenosynovitis of the hand or forearm and silicosis. (See Figure 8 below.)

Before 2010, the coverage of the Occupational Deafness (Compensation) Ordinance was limited to the binaural hearing loss of workers. However, the Association for the Rights of Industrial Accident Victims fought to have the monaural hearing loss of workers included and receive the same treatment as binaural hearing loss. After lobbying the government to protect them as well, the association was successful and compensation has been extended to all employees suffering from noise-induced monaural hearing loss as of April 2010. In 2011, there were 69 such cases. In the first three quarters of 2012, there were 42 cases. The injury has been common among services and sales workers, elementary occupations, clerical support workers and others.

Tenosynovitis of the hand or forearm was the second most common (confirmed) occupational diseases in 2011. Excessive movements of the muscles and tendons of the hand or forearm that result in traumatic inflammation of the tendons or tendon sheaths will cause this disease. “Tennis elbow” and “golfer’s elbow” are two types of this disease that are commonly seen. The risk of developing this disease increases once there are quick, repetitive and strenuous movements of hands or forearms in inappropriate postures for prolonged periods.


Figure 8

Confirmed Occupational Diseases, 2009 to 2011

Occupational Disease 2009 2010 2011

Occupational Deafness 77 70 157

Tenosynovitis of the Hand or Forearm 39 48 70

Silicosis 86 61 63

Tuberculosis 18 11 17

Mesothelioma 15 12 13

Gas Poisoning 17 17 11

Asbestosis 5 1 9

Occupational Dermatitis 10 5 7

Streptococcus suis Infection 0 3 1

Others (including Compressed Air Illness, 1 1 1

Leptospirosis, Avian Chlamydiosis)

Total 268 229 353


At the same time, the number of confirmed occupational diseases has been increasing. (See Figure 9 below.) The occupational disease code of tenosynovitis of the hand or fforearm is 8. Comparing to the 1st three quarters of 2011, the number of cases of this disease rose from 45 to 55. Victims who suffer from this disease mostly work for public administration, and social and personal services, manufacturing and accommodation and food services.


Fig. 9 Statistics of Confirmed Occupational Diseases (excluding Silicosis, Asbestosis, Mesothelioma, Occupational Deafness amd Gas Poisoning) by

Industry in 1st Three Quarters of 2012

Occupational Disease Codes3 = Compressed Air Illness8 = Tenosynovitis of the Hand or Forearm11 = Leptospirosis14 = Tuberculosis16 = Streptococcus suis Infection27 = Poisoning by halogen derivatives of hydrocabrons of the aliphatic series40 = Occupational Dermatitis48 = Carpel Tunnel Syndrome

Notes:1) For information on silicosis, asbestosis and mesothelioma, please refer to the

Pneumoconiosis Compensation Fund Board.2) For information on occupational deafness, please refer to the Occupational

Deafness Compensation Board.


Industries

Agriculture, forestry and fishing

Miming and quarrying

Manufacturing

Electricity, gas and waste management

Construction

Import/export, wholesale and retail trades

Transportation, storage, postal and courier servicesAccommodation and food sevices

Information and communications

Financing and insurance

Real estate

Professional and business services

Public administration, and the social and personal services

Other industries

Total

Occupational Disease Codes (1 st Three Quarters of 2011) Occupational Disease Codes (1 st Three Quarters of 2012)

3 8 11 14 16 27 40 48 Total 3 8 11 14 16 27 40 48 Total

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

0 4 0 0 0 0 0 0 4 0 6 0 0 0 5 0 0 11

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

1 0 0 0 0 0 0 0 1 11 3 0 0 0 0 0 0 14

0 4 0 0 1 0 0 0 5 0 3 0 0 1 0 0 0 4

0 1 0 0 0 0 0 0 1 0 3 0 0 0 0 0 0 3

0 11 0 0 0 0 1 0 12 0 4 0 0 0 0 0 0 4

0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 2

0 3 0 0 0 0 0 0 3 0 1 0 0 0 0 0 0 1

0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 2

0 2 0 0 0 0 0 0 2 0 4 0 0 0 0 1 1 6

2 20 1 12 0 0 6 0 41 0 27 0 13 0 0 1 0 41

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

3 45 1 12 1 0 7 0 69 11 55 0 13 1 5 2 1 88


III. Analysis of the compensation system

The Employees’ Compensation Ordinance (ECO) has its limits. The areas of application are not comprehensive and the compensation provided is insufficient.

3.1 Limitations and non-coverage of the ordinance

The ordinance does not offer protection to the following workers:

1. Workers who get injured or die on their way to the workplace from home (except during certain bad weather conditions)

2. Self- employed persons.3. Only 52 kinds of occupational diseases are on the

compensation list.

The limitation of the coverage of the ordinance was seen when two serious traffic accidents occurred, the first, the Ting Kau Bridge traffic accident in 2003, and the second, the Lok Ma Chau traffic accident in 2009.

Case Study 2: Ting Kau Bridge traffic accident

On 7 November 2003 morning, a double-decker bus fell from the Ting Kau Bridge in the northwest area of Hong Kong, causing 21 passengers fatalities and injuring 20 others As this was early morning, there were many teachers and students on the bus on their way to school. The government, however, ruled that the teachers and other workers were not covered by the ECO in this case and thus did not receive any compensation.

Case Study 3: Lok Ma Chau traffic accident

On 23 January 2009, an intoxicated truck driver hit a taxi, resulting in the death of the taxi driver and his five passengers. The passengers were construction site workers. Since the site was far from their homes, they chose to take a taxi. Despite claims that the workers were engaged in a work-related accident, as with the Ting Kau Bridge case, this argument was not upheld and their families did not receive compensation under the ECO.

The victims of these accidents were ordinary workers, making a contribution to their society and their families, who brought compensation claims based on negligence, have been denied all


compensation. We urge the government to expand the application of the ordinance to cover those injured or killed on their way to work.

As regards the limited list of 52 types of occupational diseases , it is clear that in our modern society this list must reviewed, revised and expanded to match the conditions in the present working world.

3.2 Cap on compensation set too low

As of the middle of 2013, the maximum salary level used to calculate compensation in cases of permanent total incapacity was HK$23,580. This is unfair to those people whose salary is higher than $23,580 and cannot calculate compensation based on their actual salary. These might include teachers, some scaffolding workers and managers.

The employer also pays the injured employee periodic payments at the rate of four-fifths of the employee’s monthly income. Clearly, for the injured worker, expenditures must increase and 80 percent of their original monthly income is likely to be insufficient to pay for the extra expenditures, including the medical expenses.

As of the middle of 2013 payment of HK$200 to $280 per day for medical expense was insufficient to meet the actual needs of patients requiring special treatment. In general, special treatment charges are more than $500 per visit and most injured workers cannot afford those charges.

The compensation in 2013 does not include the examination fee, and this will affect the worker’s condition and their recovery. Moreover, some workers need medical equipment to support their recovery programme, especially the pneumoconiosis patients, but the financial support for these patients is still very limited.

The $70,000 for funeral expenses is not enough to meet the actual needs. The cost of a private niche for the urn with the victim’s ashes is more than $100,000 at present; otherwise, families have to wait many years for a public niche. Additionally, the funeral itself as of the middle of 2013 costs around $50,000, giving a total amount of more than $150,000. There is a huge distance between the ordinance and the actual expenses.

The compensation system is run by the Labour Department as the part of administration and the insurers as the part of compensation. That will involve some problems, in particular if the employer has doubts about the accident and discontinues payments. This then requires a lengthy investigation by the Labour Department to deal with the conflict between employer and employee. In many cases, the employee may not be successful.


3.3 Recommendations

Expand the areas of compensation and include more workers under the ECO:

- Include workers who get injured or die on their way to and from the workplace;

- Self- employed persons.- Occupational diseases patients, include those suffering from strain.

Improve the compensation terms

- Cancel the maximum salary level of $23,580 used to calculate compensation.

- Pay in full the employee’s monthly earnings during the period of temporary incapacity instead of four-fifth of his last income level.

- Increase the medical subsidy to $500 per day from $200.- Increase the funeral expenses subsidy and base it on the actual

needs of the family.- Improve the subsidy for medical equipment.

Set up a “Central Compensation Fund”

This fund could be set up as an independent official department to deal with the compensation issues, along the lines of the “Pneumoconiosis Compensation Fund Board” and “The Occupational Deafness Compensation Board”. This department’s functions would be to collect the levy from the employers and pay it to the injured worker and the families in the case of fatalities. The Central Compensation Fund is an effective way to cope with the present problems.


Annex 1

Legal Aid Department

http://www.lad.gov.hk/eng/home/home.html

Victims can claim the employee compensation or negligence compensation with the assistance of a lawyer, whether one privately engaged or from the government’s Legal Aid Panel. In general, to verify a successful case, about three months is required except in the urgent cases. Once applicants pass the eligibility criteria, the applicants may select lawyer from the panel or the Legal Aid Department will assign one. We encourage victims to engage a lawyer with the help of Legal Aid since Legal Aid Department can monitor the lawyers and also act as a bridge between the victims and lawyers.

1) Ordinary Legal Aid Scheme

Eligibility Criteria • Tosuccessfullyapplyfor legalaid,applicantsmustpassthe

merits test and the means test. • Meanstest–Applicantswillbeeligibleifapplicants’financial

resources do not exceed the financial eligibility limit. The current limit is HK$260,000. The Director may waive the upper financial eligibility limit in meritorious cases in which a breach of the Hong Kong Bill of Rights Ordinance or an inconsistency with the International Covenant on Civil and Political Rights is an issue.

• Merits test–Applicantsneed to showthatheor shehasreasonable grounds for taking or defending proceedings.

2) Supplementary Legal Aid Scheme

Scope Under the Supplementary Legal Aid Scheme, legal aid is available

to claims involving personal injuries or death, or medical, dental and legal professional negligence, where the claim is likely to exceed $60,000. It also covers claims brought under the Employees’ Compensation Ordinance irrespective of the amount of the claim.


With effect from 30 November 2012, the Supplementary Legal Aid Scheme has been expanded to cover the following new types of cases where the claim is likely to exceed $60,000 :

• professional negligence claims against certified publicaccountants (practising), registered architects, registered professional engineers, registered professional surveyors, registered professional planners, authorized land surveyors, registered landscape architects and estate agents;

• negligenceclaimsagainst insurersortheir intermediaries inrespect of the taking out of the personal insurance products; and

• Monetaryclaimsagainstvendorsinthesaleofcompletedoruncompleted first-hand residential properties.

It also covers representation for employees in appeals against

awards made by the Labour Tribunal irrespective of the amount in dispute.

Eligibility Criteria

As with the Ordinary Legal Aid Scheme, applicants have to pass the means test and the merits test.

• MeansTest–Applicantwillbeeligibleifapplicants’financialresources exceed HK$260,000 but not HK$1,300,000.

• MeritsTest -Applicantneeds to showthatheor shehasreasonable grounds for taking proceedings.


Annex II

References

Ordinances

Employees’ Compensation Ordinance

Pneumoconiosis (Compensation) Ordinance

Occupational Deafness (Compensation) Ordinance

Employees’ Compensation Insurance Levies Ordinance

Departments and Organizations

Labour Department -- www.labour.gov.hk/tc/news/content.htm

The Pneumoconiosis Compensation Fund Board --www.pcfb.org.hk/index2.html

The Occupational Deafness Compensation Board www.odcb.org.hk/en_index.php

Legal Aid Department --www.lad.gov.hk/chi/home/home.html

Documents

Hong Kong - Asia Monitor Resource Centre 4- Hong Kong.pdf · Hong Kong, and to crew members of a Hong Kong ship, and any ... A3 Dysbarism, including decompression sickness, barotraumas