Tsang Man Hoi William v. Utec Ltd

DCEC 546/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 546 OF 2001

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram: Her Honour Judge Yuen in Court

Dates of Hearing: 28 November 2003 and 1 December 2003

Date of Handing down of Judgment: 3 February 2004

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JUDGMENT

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1.This is an employee compensation claim. Parties' written submission concluded on 15 December 2003.

2.Quantum has been agreed between the parties at HK$58,619. The issue to be adjudicated upon is an issue of liability.

3.According to the applicant, he sustained injury on 7/7/00 whilst at work. Parties took no issue about the fact that the applicant was working in the course of his employment during the alleged accident. It was the respondent's case that the accident did not happen. Alternatively, if the accident did happen the applicant sustained no injury as a result of the accident. The respondent did not seek to challenge the medical findings about the injuries sustained by the applicant but sought to doubt the truthfulness of the applicant's recount of the events on account of the conversations the applicant had with the manager of the respondent after the accident.

The Evidence

4.It was the applicant's evidence that on 7/7/00 he and his colleague Mr. KUNG were lifting a heavy metal manhole with the use of the lifting device. As the lifting device held by Mr. KUNG slipped out of the manhole cover, the entire weight of the manhole cover dragged on him. As a result of the sudden unexpected dragging force, the applicant suffered a sprained back injury.

5.The applicant described in his witness statement, " I felt some discomfort in my lower back and gave out a cry. As I did not feel particularly painful, I continued with my work. It was not until some time very close to the time for off-duty when I started to feel painful in my lower back. The pain quickly intensified and soon I felt so painful that I could not straighten my back. Upon the advice of Kung and other colleague, I drove the van with them to the Accident and Emergency Department of the Prince Wales Hospital. Kung and other colleague went on to return to the office of the Respondent, leaving me alone at PWH."

6.Whilst giving evidence in court the applicant said his pain sensation remained with him throughout the day on an on-and-off basis. When the working hours was coming to an end he found his pain intolerable. He could not straighten his back. He decided to drive to the Prince of Wales Hospital in Shatin for medical consultation.

7.Johnson Lee, the operation manager of the respondent company, gave evidence to say the company had resolved to dismiss the applicant on 6/7/00, a day before the alleged accident. He recalled the applicant calling in on 7/7/00 to say he sustained injury whilst at work and the respondent could not terminate his employment.

8.According to Lee, the applicant returned to the office of the respondent a day after the incident on 8/7/00. Mr. Lee met the respondent in private and agreed to help the applicant to retain his job provided the applicant told the truth about accident. Upon getting Lee's promise the applicant admitted to Lee that he "faked the injury" for the purpose of protecting himself. The respondent carried out no investigation to ascertain the extent of the applicant's injury.

9.Lee believed no accident happened and no injury resulted as he had spoken to the applicant's colleague Kung over the phone shortly after the incident. Kung did not tell Lee he saw the incident. Kung's reply over the telephone was, "Whatever Ah Hoi ( the applicant ) said, I would be saying the same."

10.On account of the applicant's admission to the respondent that he faked his injuries, the respondent made no report of industrial accident to the Labour Department, nor had the respondent informed its insurance company of the applicant's claim of industrial injury.

11.On 3/8/00 the applicant agreed with Lee to amend his work record to that of sick leave instead of industrial injury leave.

12.As the respondent was unsure whether the applicant did or did not sustain injury whilst at work, the respondent withdrew its decision to dismiss the applicant. On 29/9/00 the respondent dismissed the applicant when the applicant was found to have lied about engaging in a piece of work which was completed 2 days before the reported work.

13.Dr. Yuen of the casualty department of the Prince of Wales Hospital examined the applicant shortly before 7pm on 7/7/00. The doctor found the applicant to have suffered no neurological deficit, the applicant range of movement of his back was normal but there was pain over the applicant's lower back. According to Dr. Yuen, the applicant's injury was compatible with a sprain injury. According to Dr. Yuen, permanent disability was not expected of the applicant. The applicant was treated and discharged on the same day with 6 days of sick leave recommended.

14.Medical record also showed the applicant to have started to receive physiotherapy treatment since 27/7/00. In the report prepared by physiotherapist Sharon Tsang on 8/8/01, Ms Sharon Tsang wrote:-

" The above-named had sustained a neck and back sprained injury on 7 July 2000 whilst on (at) work. He was referred to our department for physiotherapy by Accident and Emergency Department, Prince of Wales Hospital on 27 July 2000.

In the initial treatment given on 16 August 2000, Mr. Tsang showed some limitations on both neck and back mobility with pain reported. Pain upon compression was found over central neck and left side of back regions. His arms and legs were generally slightly weaken.

Physiotherapy given to him included pain relieving treatment by electrotherapy; postural advice, mobilization and strengthening exercises for both neck and back areas. Gradual improvement was shown with treatment given.

Totally he received 19 sessions of treatment, pain was minimal and occasional then. He regained mobility at back and neck to the end of motions. The treatment was stopped on 2 January 2001 with strengthening exercises and postural care encouraged for self practice."

15.The applicant was recommended a total of 60 days of sick leave by the medical practitioners as a result of the accident.

16.The applicant was assessed by the Employees' Compensation Assessment Board in August 2002 and was assessed to have suffered a permanent loss of 4% his earning capacity as a result of his neck pain, back pain and stiffness.

Fact Findings

17.The respondent does not rest it footing on the contention that the diagnosis by the doctor was erroneous or that the incident described by the applicant could not possibly have given rise to an injury which necessitated consultation, follow-up physiotherapy treatments or to days of sick leave.

18.It is the respondent's case that the applicant lied about sustaining injury. According to the respondent, the applicant has learnt about the respondent's decision to dismiss him through his colleagues before he went on duty on 7/7/02. The applicant faked the said injury to circumvent his dismissal.

19.I accept Mr. Lee of the respondent to be truthful in recounting what he was told by the applicant, namely that the applicant has faked his injuries. Despite of what the applicant has told Lee, medical evidence confirmed the applicant to have a low back pain which was consistent with a sprained back injury. Dr. Yuen's medical evidence was not challenged nor supplemented by other medical opinion to account for partiality or inaccuracy.

20.All along the injury reported by the applicant in his own statement and that diagnosed by Dr. Yuen of the Accident and Emergency Department of Prince of Wales Hospital on the day of the accident was low back pain. Whilst in court, the applicant confirmed his condition was at its worse when he was going off duty on 7/7/00. There was no explanation why his injury suddenly escalated to include a neck pain when he was examined by Dr.Chan of Tsuen Mun Hospital on 3/9/01, some 14 months after the accident.

21.Despite of his intolerable pain, the applicant's election not to seek medical consultation at the nearby Queen Mary Hospital but to drive during the peak hours from the Western District of the Hong Kong Island to Shatin in the New Terrorities for medical treatment was again unconvincing.

22.The amendment of the "industrial injury leave" entry in the applicant's work record to that of "sick leave" rendered the applicant's case suspicious.

23.The medical report by Dr. LAU Chi Yuk of Tuen Mun Hospital was challenged for the lack of signature. I accept, without the signature the statement maker has not confirmed the contents therein. This court should not accept it as a proper medical report. Further the causation of "chronic low back pain associated with stiffness, diminished lumbar lordosis and back excursion" was not explained. I accept this court should not act on the contents in Dr. Lau's report without elaboration from the doctor.

24.On the available evidence, I accept the applicant has been less than frank about events and the extent of the injuries he suffered. Medical evidence confirmed his injury on 7/7/00 was consistent with a sprained injury. Falling short of other evidence to explain the medical finding which confirmed the presence of low back pain, I accept the slipping of the manhole cover did happen on 7/7/00, the applicant did sustain a sprained back injury on his lower back as diagnosed by Dr. Yuen.

25.I also accept it is likely that the applicant has exaggerated the extent of his injuries to the medical practitioners who subsequently examined and treated him. There was no explanation on the likely causation of "diminished lumbar lordosis and back excursion". On account of the long lapse of time between the accident and the ultimate diagnose by the subsequent doctors, one simply cannot be sure what happened in the interim. Whether "diminished lumbar lordosis and back excursion" is a natural progression from a sprained back injury is again unknown.

Quantum

26.Despite of objection, the respondent lodged no appeal against the assessment by the Assessment Board.

27.This court has not been called upon to adjudicate on the quantum of compensation.

28.Having ruled in favour of the applicant in respect of the accident and accepting that he did suffer the injury as diagnosed by Dr. Yuen of the

Prince of Wales Hospital as a result of the accident, I enter judgment in favour of the applicant in accordance with the agreed quantum of HK$58,619.

29.Costs order nisi is granted in favour of the applicant with certificate for counsel for the hearing. The applicant's own costs to be taxed in accordance with the Legal Aid regulations.

Representation:

Mr. Herbert H.W. Au-Yeung instructed by D.L.A. for the Applicant.

Ms Joanna Molloy instructed by Messrs. Deacons for the Respondent.