Wong Hong Nin Edwin v. Swire Properties Management Ltd

DCEC 378/ 2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 378 OF 2002

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IN THE MATTER OF AN APPLICATION

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JUDGMENT

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INTRODUCTION

1.The applicant claims against the respondent compensation under sections 8, 9, 10 and 10A of the Employees' compensation Ordinance, Cap. 282 ("the Ordinance"). The respondent has admitted liability. This Court has to assess the quantum of compensation.

ACCIDENT

2.The applicant at the material times was employed as a technician by the respondent. In the morning of 23rd August 2001 while the applicant was working inside the pump room on 21st floor of Cornwall House, Taikoo Place, 979 King's Road, Quarry Bay, Hong Kong, his back hit against an iron bar as he rose from a squatting position ("the accident").

PERSONAL BACKGROUND

3.The applicant was born on 23rd April 1979 and at the time of the accident, he was aged 22 years. He is aged 24 at the time of present trial.

4.Before the accident, the applicant was employed by the respondent as an air-conditioning technician earning a basic monthly wage of $10,700 plus various allowances. It is not in dispute that the applicant's average monthly income for the past 12 months immediately preceding the date of accident was $12,394.53 (i.e., $148,734.33 / 12).

5.By reason of the accident, the applicant is unable to return to his pre-injury work.

6.Prior to the accident, the applicant was a normal and healthy man who used to go to hike in the countryside or go to swim.

7.The applicant's present major complaints include pain at his back and right lower limb. Such pain makes it difficult for him to run or walk fast or sit for more than 20 minutes.

QUANTUM

Section 8 - care and attention

8.The applicant's case is that: -

He was unable to perform some essential daily activities without the attention of another person. For instance, he was unable to twist towel in one hand which was part of the entire procedure of washing face. It is reasonable for the applicant to employ a domestic helper to help him. He claims a total of such expense for the 8 months between June 2002 and January 2003. The sum is $29,360 (i.e., $3,670 x 8). He had no receipts for such expense for the 4 months between June 2002 and September 2002. Besides, the applicant was not the employer as named in the receipts for the 4 months between October 2002 and January 2003.

9.The respondent's case is that: -

(1) The applicant's alleged needs fall outside the ambit of section 8 of the Ordinance. The respondent refers to the case of Lau Ka Shui v. Yiu Wing construction Co. Ltd. TWECC 129/90 for the proposition assistance required for dressing and washing his face is "of an intermittent nature" that is outside the ambit of section 8. The respondent is nowhere near being unable to perform the essential actions of life.

(2) The applicant had not needed such assistance from 23rd August 2001 to May 2002.

(3) Dr. Chow suggests that the applicant would be able to perform the work of a shop assistant, typist or clerk. It follows that he does not need assistance in the basic and essential actions of life.

(4) Dr. Lam regards the applicant as capable of resuming his pre-injury work 3 months after the accident.

(5) The surveillance video tape ("the tape") taken on 4th March 2003 demonstrates that the applicant would be fully capable of performing the essential actions of life.

Section 9 - permanent incapacity

10.The applicant's case is that: -

(1) Dr. Chow regards that the applicant is unfit to return to his pre-injury work but fit to do light duties that do not require lifting weight or frequent walking. He will be less able to compete with others in the job market.

(2) The tape depicts only intervals of time of few minutes. Dr. Chow or this Court does not have a full picture of what happened to the applicant to explain his actions as taped.

(3) Dr. Chow was aware of, and did take into account, the applicant's exaggeration when he wrote his medical reports.

(4) The applicant's suffers a 43% loss of earning capacity.

11.The respondent's case is that: -

(1) The applicant's claim for 43% loss of earning capacity is not supported by objective medical evidence. Nothing was revealed on the X-ray, bone scan or MRI scan, except the presence of a mild disc prolapse.

(2) Two years on from the accident, the applicant still says that he is so much pain that he cannot walk properly, cannot wash himself, clothe himself, or concentrate. Both Dr. Chau and Dr. Lam agree that his mild disc prolapse cannot account for this pain. There is no other objective pathology which can account for the pain. Dr. Chow says in a later stage in cross-examination that he had possibly some muscle contraction which had some other, maybe minor, causes.

(3) Dr. Chow's evidence lacks impartiality as he was the one in receipt of regular monthly consultation fee from 4th March 2002 to 23rd May 2003 whereupon he issued continuous monthly sick leave certificates.

(4) Dr. Chow's physical examination lacks objectivity. His findings were based purely on the applicant's oral complaints and physical tests (such as muscle spasm/ contraction test) which the applicant could manipulate for the desired results.

(5) As can be seen from the respondent's papers respectively entitled "Medical Evidence Contrary to the Applicant Claims" and "Ailments Chart" (see the Annexure of this Judgment), the applicant's oral complaints and Dr. Chow's physical tests and findings are mostly unreliable.

(6) Dr. Chow improperly opted for the range-of-movement test when the correct approach would be to put the applicant's condition in the DRE Lumbar Category as the applicant suffered a disc prolapse. The said Category would include all related aspects of pathology, such as soft tissue.

(7) On the contrary, Dr. Lam's evidence is both objective and reliable. He is impartial as he has no conflict of interest. During the physical examination, he found signs of exaggeration, inconsistencies in the description of ailments and sub-maximal efforts on the applicant's part.

(8) Dr. Lam finds that the accident was a low-impact one; the applicant suffers a mild disc prolapse and possibly some mild, if any, muscle contusion; there were no haematoma or oedema being displayed on the MRI tests; fractured bones would take 6 weeks to heal and 3 months to consolidate; muscle contusion would only take weeks to heal; overall speaking 3 months would be the maximum healing period. After that, the applicant could return to his pre-injury work.

(9) He assesses the applicant's loss of earning capacity at 3%, if not less.

Section 10 - temporary incapacity

12.The applicant's case is that: -

(1) He was granted sick leave by 8 government doctors from 23rd August 2001 to 21st June 2002 (about 10 months), by Dr. Chow from 20th June 2002 to 23rd June 2003 (1 year).

(2) Dr. Chow says that he already took into account the applicant's exaggeration of his injuries in his 2 medical reports and that the applicant exaggerated more in the joint examination on 4th March 2003 than that on 23rd August 2002. It is unreasonable and speculative to say that Dr. Chow was biased in granting the sick leave.

(3) If Dr. Lam's opinion of a 3-month full recovery had been correct, the respondent would have stopped all periodical payments 3 months after the accident, alternatively after Dr. Lam's medical reports, or after Dr. Lam's viewing of the tape. The respondent just kept paying the applicant. Apparently it did not regard Dr. Lam's opinion as reliable.

(4) The respondent has already tendered periodical payments to the applicant in the sum of $202,007.98. According to the applicant's case, the respondent still needs to pay $16,135.66 (i.e., $218,143.64 - $202,007.98).

13.The respondent's case is that: -

If Dr. Lam's evidence is accepted by this Court, the respondent's liability for periodical payments shall be limited to 3 months after the accident.

Section 10A - medical expenses

14.The applicant's case is that: -

(1) The applicant's statutory maximum was $200 per day.

(2) The applicant is entitled to all medical expenses from 23rd August 2001 to 23rd May 2003 in the sum of $6,734.

15.The respondent's case is that: -

(1) The applicant's statutory maximum ought to be $175 per day. The revised figure of $200 (in March 2003) does not apply to the present case, which involved medical expenses from August to November 2001.

(2) If Dr. Lam's evidence is accepted by this Court, the applicant cannot recover any medical expenses incurred after 22nd November 2001.

This Court's Findings

16.I find the applicant to be dishonest and unreliable when he orally and physically responded to Dr. Chow during the physical examination sessions, as much as when he gives evidence in this Court. The inconsistencies and improbabilities of his evidence are abundant, as pointed out in that part of Ms. Molloy's submissions as annexed hereto.

17.The tape is played back in court. It featured the applicant walking for 10 minutes. The applicant was as agile as most other pedestrians in his movements, some of which were said to be impossible according to Dr. Chow and himself. Dr. Chow, however, says in his evidence that there were 4 to 5 steps which the applicant had taken with the right heel 1/2 to 1 cm off the ground. Dr. Chow says this to justify his findings of 4th March 2003 that the applicant "walked with his right heel off the ground most of the time". Dr. Chow's findings in his report on this aspect are patently unreliable.

18.Dr. Chow does not explain how and to what extent he discounted the applicant's incapacity due to exaggeration. Besides, he just asked his nurse, who did not have any specific training in the field, to observe how the applicant walked away from his clinic to take the lift. He relied on such oral description, among others, to discount for exaggeration. He does not even include this nurse's observation in his reports.

19.Given the applicant's inconsistent and exaggerating complaints as he responded to Dr. Chow, and given Dr. Chow's unreliable findings, I reject Dr. Chow's evidence entirely. There was no sound basis for him to issue the sick leave certificates in favour of the applicant.

20.I do not know why the 8 preceding government doctors were minded to issue sick leave certificates to the applicant. It is for the applicant to prove that sick leave was granted on a sound basis. If called to testify, these government doctors might well have told this Court why they had granted the sick leave and then the respondent could have questioned them. At any rate, this Court should not guess what evidence will come up. At the present moment, it suffices for me to say that there is no such evidence from the applicant.

21.I find Dr. Lam to be honest, reliable and authoritative in his evidence as an expert. I accept his entire evidence. I am satisfied that the applicant could have returned to his pre-injury work 3 months after the accident, would not have needed a domestic helper between June 2002 and January 2003, would not have required further medical consultation sessions after 22nd November 2001, and that the loss of earning capacity would be 3%.

This Court's Computations

22.In the premises, Ms. Molloy's computations for sections 8, 9 and 10 as set out in paragraph 77 of her Closing Submissions are correct: -

(1) Section 8	nil
(2) Section 9 (3% loss of earning capacity)	$35,696.25
(3) Section 10 (3 months x $12,394.53 x 4 /5 )	$29,746.87

22.However, I differ from her computations for section 10A as set out therein. My computations are as follows: -

Section 10A, up to 22nd November 200 ($175 max. per day as follows: )

(a) 23-28 Aug. 01 PYNEH	5 days,	$408 (actual)
(b) 30 Aug. - 3 Sep. 01 Baptist	5 days,	$875 (max.)
(c) 28 Sep. - 4 Oct. 01 PYNEH	7 days,	$1,225 (max.)
(d) 5 Oct. 01 PYNEH	1 day,	$60 (actual)
Sub-total:		$2,568.00

23.The total compensation ought to be $68,011.12 (i.e., the sum of all three figures in bold type).

Refund

24.The applicant has received $202,007.98 from the respondent. Ms. Molloy requests for an order for refund of overpayment, if any. My computations as above would mean an overpayment of $133,996.86 (i.e., $202,007.98 - $68,011.12). Nonetheless, I have no power to order a refund in the present case.

Costs

25.I make an order nisi for costs, with certificate for counsel, to the respondent. This will be made absolute 14 days from today.

Dated this 26th June 2003