Mallarievelyn Acosta v. Chan Ka Po

DCEC 337/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 337 OF 2002

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IN THE MATTER OF AN APPLICATION BETWEEN:-

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Before:  His Honour Judge Muttrie in Court

Date of Trial:  14 – 17 September 2004

Date of handing down of Judgment:  18 October 2004

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JUDGMENT

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1.The applicant was employed by the respondent as a domestic helper. On 17 October 2001 she suffered a road accident arising out of and in the course of her employment. Having taken her employer’s child to board the school bus, she had to go back to the house to collect the child’s lunch box, which had been left behind; she had to cross a road to get there, and while so doing she was knocked down by a car and suffered a severe head injury. Liability is not in dispute. She claims under sections 9 and 9(1A), 10 and 10A of the Employees Compensation Ordinance, Cap. 282.

2.What is in dispute here is primarily the degree of permanent partial incapacity suffered by the applicant. On 31 December 2003 the Compensation Board issued a Form 9 Certificate of Review of Assessment, certifying the sick leave period from 17 October 2001 to 28 August 2003 and the loss of earning capacity at 11%. Both sides appeal against the Certificate. The applicant’s case is that she is now incapable of returning to work as a domestic helper in Hong Kong. The respondent’s case is that she was fit to resume duty by about 18 months after the accident. In addition the applicant claims that she is entitled to more than two years’ sick leave payments, under section 10(5), which is of course disputed; and the claim for medical expenses is not admitted, or not admitted in its entirety.

3.Various facts have been admitted on notice, namely that

a)    the applicant was injured on 17 October 2001 and was 32 years of age at the time of the accident;

b)    she was employed by the respondent under a contract of employment;

c)    she was granted sick leave for 681 days from 17 October 2001 to 28 August 2003;

d)    while employed by the respondent she worked about 26 days per month, from Monday to Saturday;

e)    she had to serve on a regular basis two adults and two minors aged between 5 and 18 years;

f)    her duties included household chores, baby-sitting and child-minding;

g)    the respondent did not re-employ her after the termination of her contract; and

h)    the respondent employed the applicant’s sister-in-law as a domestic helper in January 2004.

Medical Reports

4.I turn to the medical and other evidence of the treatment which the plaintiff received as it appears from the various hospital medical and other reports.

5.The applicant suffered a head injury. She was admitted to the Caritas Medical Centre after the accident, with a Glasgow Coma Score of between 9 and 12 points on the 15-point scale. She had a laceration wound over the left occipital area and bleeding from the right ear. She was found to have a right occipital fracture with left frontal and temporal brain contusion and left parietal acute subdural haematoma.

6.She was intubated and ventilated and transferred to Kwong Wah Hospital where she had an operation for removal of the haematoma. She remained intubated for four days. On 5 November 2001 she had a cranioplasty, i.e. an acrylic plate was inserted to cover the hole in her skull made by the craniectomy. She was given a prophylactic anti-convulsant drug, dilantin, and was discharged on 14 November 2001.

7.The applicant was re-admitted to Kwong Wah Hospital on 6 December 2001, complaining of dizziness, headache and right side hearing loss. A brain scan showed no new abnormality, but she had a blood clot in her right ear. Her eardrum was intact and on test there was nothing wrong with her hearing. She was discharged on 12 December 2001 but was still complaining of headache and dizziness when she went for out-patient follow-up on 27 December 2001.

8.There are some indications in the hospital doctor’s notes made at that time that the question was considered of whether the applicant had suffered from a convulsion, but there is no specific finding to this effect. 

9.The applicant commenced a course of physiotherapy from 19 February 2002 until 3 October 2002. The physiotherapist’s report shows that she commenced with mild weakness of the left wrist, left leg and some weakness over the right hip and knee. She had decreased grip strength in the left hand. She had to walk with a stick at that stage. By 10 September 2002 she was found to have full strength in all four limbs and equal grip strength in both hands. She was able to walk without a stick, although a little slower than the expected normal comfortable walking speed. She had a full score in capability in the performance of basic activities of daily living as measure by a test devised for stroke patients.

10.The applicant also had 69 sessions of occupational therapy from 21 February 2002 to 26 February 2003. By the end of the course, she showed improvement in various conditions and abilities but the therapist reported that “she may not be able to completely resume her pre-morbid job which imposes significant requirements of carrying things, climbing up or bending for cleansing and walking for a long distance.”. 

The Applicant’s Evidence

11.The applicant was born in the Philippines on 31 May 1969. She graduated in 1993 in the Philippines with a bachelor’s degree in biology. She worked in catering in the Philippines since about 1996 and on graduating was promoted to manager in which post she earned the equivalent of HK$1,200 per month. In 1996 she came to Hong Kong where she worked as a domestic helper for three different families.

12.The applicant signed a 2 year contract with the respondent on 22 December 1999. It is now agreed that her total earnings for the purpose of calculating entitlement to compensation were $5,300.00 per month. She says that her duties involved cooking, shopping at markets and supermarkets and carrying the groceries home, cleaning, including kneeling to wash floors with a cloth and cleaning two motor cars. She also had to take care of two children, including feeding them, dressing them, collecting them from school and carrying their school bags and taking them to extra-curricular activities.

13.The applicant’s own evidence of her present condition, as it appears from evidence-in-chief and an adopted written statement dated 30 November 2003 is as follows. She feels dizzy every day and has vertigo from time to time; and if she moves her head to the right and to the left, she feels dizzy. If she has to look down, to do domestic work, she feels dizzy and cannot do anything. She has headaches every day and she vomits frequently. In August 2004 she felt as she did when she had just come out of the operating theatre, and felt vertigo all day until 19 August 2004, when she sought medical attention; and she has been scheduled for another CT scan in November this year. She suffers frequent headaches; she cannot dance, which is something she used to enjoy, and she cannot turn fast, because if she does she falls over. She is afraid because of her headaches. She cannot walk as fast as she did and her body movements are not the same as before.

14.She says that she has a lack of power in her right hand. This has improved since she gave her statement, but she is still unable to carry heavy things. If she does the left side of her head aches. She cannot carry a child as before, and she cannot do continuous housework like ironing and cleaning. She has insomnia though this seems to have improved recently, and she is forgetful. Now, if she reads something, she has to read it two or three times to remember it.

15.Under cross-examination the applicant was somewhat self-contradictory. For instance, at one point she said that she had headaches daily and at another, that they were only frequent but not daily. This later became dull headaches daily with more severe headaches every few days. There were various discrepancies between her evidence and what she had told attending doctors as well as experts. But overall she maintained that her condition now was not good; she could do little of the work she used to do pre-accident, because any exertion would produce headaches and dizziness and she would have to stop and rest.

16.The applicant was seen by her own expert, the well-known neurologist Dr. Fali J. Shroff on 7 May 2002. He recorded her symptoms as headaches occurring occasionally associated with nausea and previously with vomiting as well; severe balance problems requiring the use of a walking stick; impaired concentration and memory, and at least one attack of generalised convulsions requiring admission to hospital. This last refers to the hospital admission in December 2001.

17.Dr Shroff gave his opinion that there is a 31% chance of post-traumatic epilepsy occurring within 4 years where there has been a history of intracranial haemorrhage. He thought it appeared that there had been one such attack already. Post-traumatic epilepsy is difficult to treat and may recur after a few years. Persons who suffer from it are restricted in their choice of jobs. Working in a kitchen or carrying babies or children is undesirable for such a person.

18.Dr Shroff recommended that the applicant be examined by a clinical neuropsychologist and she was seen in October and November 2002 by Professor Agnes Chan, who is an expert in that field. On the basis of his own earlier report and Professor Chan’s report Dr Shroff gave his opinion in December 2002 that the applicant was unemployable as a domestic helper. He had regard to the high possibility of an epileptic attack; poor dexterity of the right hand and attention problems, both of which would make it difficult for her to do kitchen work; and attacks of dizziness, resulting in severe balance problems, also enhanced by psychological distress. He estimated impairment of the whole person at 25% and permanent loss of earning capacity at 35% to 40%.

19.In evidence Dr Shroff said that having heard evidence and seen more recent reports, he would put the loss of earning capacity at 25% as at the present time. He insisted that the likelihood of an epileptic fit remains at 31% up to the fourth anniversary of the accident, particularly where there has been a subdural haematoma as in this case; and thereafter it falls to about 5%. Ultimately he agreed under cross-examination that the applicant should be able to return to work as a domestic helper, once this four-year period had elapsed.

20.Professor Agnes Chan found on testing the applicant that her cognitive function in the domains of memory, language, visual abilities and executive functions were within normal limits but she was impaired in motor function and attention. In particular the motor speed and dexterity of her right hand was severely impaired. For her left hand, motor speed was severely impaired but dexterity mildly impaired. Auditory attention was borderline, as was sustained attention; and visual attention was mildly impaired. The applicant tended to make omission errors when required to focus her attention for long periods of time.

21.Professor Chan found no evidence of malingering during the course of the evaluation. She said that the applicant could probably live independently and manage basic activities of daily living. Her motor function and attention impairments were estimated to be 100% related to the accident. Because of these impairments, the applicant would be “less competitively employable as a domestic helper”. She also suffered from considerable psychological distress and family problems as a result of the accident, her impairments and her inability to work.

22.In evidence Professor Chan maintained her opinion. Overall she said that people might think that the applicant was slow and clumsy. She could return to work, if her employer did not mind that she was a little slow and had headaches all the time, and may have attention deficit problems. It would be more difficult for her to find a job; but that would depend on the job market rather than her ability to return to work.

23.The applicant was seen by the respondent’s expert, Dr Edward Woo, who is another well-known expert neurologist, on 23 April 2003. By this time it appears that the applicant was complaining of headaches on looking down, turning her head to the left or reading a book. The headache was said to recur about twice a week and to last for a few minutes only. It may be associated with giddiness, but no nausea or vomiting.

24.On mental state examination the applicant demonstrated only mild impairment of memory. Other tests of cognitive function, including orientation, calculation, concentration, registration, general knowledge and abstract thinking were normal. In evidence Dr Woo produced his test results in support of this. He also said that there was no nystagmus; the applicant had normal dexterity and co-ordination in her hands; and she could write legibly.

25.Dr Woo said that although the applicant was complaining of residual headache, giddiness, impaired memory and weakness in her right lower extremity (the right hand is not mentioned) her neurological examination demonstrated many unusual features. In particular, she demonstrated moderate weakness in the muscles of both legs but this weakness was characterised by an equal involvement of the agonist and antagonist muscles at each joint. In evidence he said that the same applied to the arms. This is not the picture which the neurologist expects, if the weakness is neurological; the patient is expected to be stronger in flexion in the arms and in extension in the legs. But in the applicant’s case the weakness was equal in all cases. Also there was no increase in muscle tone or hyperactive reflexes such as would be expected if the limb weakness had a neurological cause. Further a positive Hoover’s sign on bilateral hip flexion indicated a significant degree of under-performance in the motor examination.

26.These examination findings led Dr Woo to the view that the applicant’s deficits were feigned or grossly exaggerated. The results cast serious doubt on the genuineness and integrity of her complaints. In other words, he thought she was malingering.

27.While Dr Woo accepted that residual headache, non-specific giddiness and impaired memory may remain after a normal recovery period of 12 to 24 months, he said that these should not account for permanent impairment of the whole person greater than 1%. The applicant should have been able to return to work after a year, with a loss of earning capacity of only about 1%. However in the course of evidence Dr Woo accepted that an appropriate sick leave period before return to work could be as much as 18 months.

28.So far as the risk of epilepsy was concerned Dr Woo took the view that it was very low. Although Dr Shroff had thought that the applicant’s episode in December 2001 was probably an epileptic seizure aborted by reason of the anticonvulsant drugs which she was taking, Dr Woo did not accept this. He saw no evidence of it in what the applicant said or in the hospital notes. He accepted that there is a risk of post-traumatic epilepsy after head injury, and that if a patient has a convulsion he is more likely to have another, but he said that the risk decreases with the passage of time. On the basis of statistics which he appended to his report he put the likelihood of a seizure in the applicant’s case at less than 1%.  

29.Much time was spent at the trial on this question of whether the applicant is likely to suffer from an epileptic convulsion in the future. Both experts agree that there is always a risk of epilepsy after head injury particularly with intracranial haematoma. Where they part company is on the likelihood of convulsion as it applies to the applicant.

30.Both neurologists referred to a textbook, Management of Head Injuries by written in the 1980s by Professor Jennett and Dr Teasdale, eminent neurologists in the University of Glasgow and directors of the Head Injury Research Programme of the Medical Research Council in the United Kingdom. It appears from this work that one of the main factors increasing the incidence of late post-traumatic epilepsy is haematoma, which of course the applicant suffered. Dr Shroff relied in particular on this. Early epilepsy also increases the incidence; Dr Shroff suggested that this had happened, but Dr Woo did not accept that. Given that there is no actual finding of convulsion in the hospital notes it seems that this is unlikely. So it seems that the applicant must be treated as not yet having had any post-traumatic epileptic convulsion. Another table in Professor Jennett’s book shows that of a sample of patients who had a late post-traumatic fit after non-missile injury, 56% had the first fit in the first year, but the rate decreased markedly after the third anniversary. Also it appears that the applicant has not been receiving out-patient treatment, and not therefore taking anticonvulsant drugs for over a year before the trial.

31.I have to say that I found Dr Shroff’s insistence that the likelihood of epilepsy would remain static at about 31% until the fourth anniversary of the accident, but thereafter fall to a very low level, rather difficult to comprehend in the light of this last matter which appeared in the textbook on which he relied for his figures. Dr Woo’s explanation of how the statistics should be regarded over the long period, so as to estimate the likelihood in the individual case, rather than the overall likelihood in the general population, seemed to make better sense and to be more believable.

32.As far as the risk of epilepsy is concerned, I prefer the evidence of Dr Woo and on the basis of his evidence find that it is very slight.

33.For the purpose of the applicant’s section 9 claim it is necessary to consider first whether she has a permanent partial incapacity, which is defined in the Employees’ Compensation Ordinance as being such incapacity as reduces the earning capacity of an employee, present or future, in any employment which he was capable of undertaking at the time of the accident.

34.The Board of course found a permanent loss of earning capacity of 11%. The latest assessment is dated 31 December 2003. This was based on a finding of “head injury resulting in post-concussional headache and dizziness and complex integrated cerebral function disturbances (still can carry out daily living tasks”. There was no mention of the risk of epilepsy. That is not surprising if there was never any positive record of a convulsion; but no doubt the Board had in mind the general risk of post-traumatic epilepsy after any serious head injury.

35.In assessing the applicant’s present condition regard must be had to the fact that the different experts saw her at different times. Overall there is a history of improvement. There is a definite improvement on the cognitive function tests as between those carried out by Professor Chan and those carried out by Dr Woo. Dr Shroff accepts that there has been improvement, to the extent of reducing his original figure for the loss of earning capacity.

36.To the extent that the applicant in evidence suggests that she is not improving or has not improved, that does not agree with the cognitive function test results. Nor does it agree with Dr Woo’s neurological test results. Nor, I think, is there any real support for the claimed weakness of the right hand up to date. In the beginning the applicant was complaining of left hand weakness; something which Dr Woo considered strange given that the injury was to the left side of the brain, and generally an injury on the left side of the brain should produce a neurological deficiency on the right side of the body. Later of course Professor Chan found greater problems with speed and dexterity of the right hand but as she says, she was not testing for muscle weakness; that is a different test. In any event it appears that the strength of both hands was normal after the completion of the physiotherapy and occupational therapy courses, and found to be so by Dr Shroff; and Dr Woo also found the strength of both hands to be normal. So if the applicant has a weakness in her right hand now, she is either making it up or else it comes from some other cause than the accident.

37.I think I have to accept that there is an strong element of exaggeration in what the applicant says. Dr Woo thought that her deficits were feigned or grossly exaggerated and this is not surprising given the positive Hoover’s sign. Having heard the applicant I not get the impression that she was deliberately feigning deficits to deceive either the doctors who examined her or the court, but rather that she feels that her condition is bad and so she exaggerates. Ultimately she was quite firm that she still has headaches, dizziness and memory problems. These complaints are not inconsistent with what she has been saying all along. Even Dr Woo cannot say that there are no headaches or dizziness, and even he found memory loss. I accept therefore that the applicant is suffering from these complaints and that they are permanent.

38.The next question is whether the applicant can return to work as a domestic helper. Dr Shroff said that she could not when he first saw her but ultimately he seems to accept that she could, if only after the fourth anniversary of the accident. Professor Chan says that she can, though she will be at a disadvantage. Dr Woo says that she can and that the headache and dizziness problems are not significant.

39.Mr Ramanathan, counsel for the respondent, argues that if the applicant can return to work as a domestic helper, there will be no loss of earning capacity. As I understand it this is because she is a domestic helper on a fixed minimum wage. The plaintiff’s solicitor, Mr Nasir, appears to argue in effect that if there is anything wrong with a foreign domestic helper at all, she cannot go back to work, because the hours are long and the work stressful, and fitness is required; not only is fitness required in practice but the helper has to pass a medical examination before she can be employed. On this basis it is said that section 9(1A) should apply.

40.I do not see that it can be said that if a domestic helper or indeed anyone else who receives a fixed salary can return to his pre-accident job without suffering any change in that salary, that means there is not loss of earning capacity. Disadvantage in the labour market, if the employee subsequently loses his job is certainly regarded as giving rise to a loss of earning capacity in common law claims. Nor do I see that the other argument applies. Of course working as a domestic helper may be stressful, and such persons commonly work long hours. But that is very much the luck of the draw. A domestic helper working for a middle-aged couple living in a small apartment with adequate accommodation for the helper will not be as stressed, or work such long hours, as one who works for a family with small children and has to sleep under the kitchen table, though both may be paid the same minimum wage. The first may be able to cope, even if she has some disability which may, when she goes on the labour market again, make it harder to find an easy job. I am not impressed by the argument based on the requirement to pass a medical examination either. An examinee who is neither naïve nor a saint is hardly likely to disclose symptoms which might disqualify her. In any event whether she is passed as fit depends on the opinion of the examining doctor. Different doctors may take different views of fitness for work, as in this case where two eminent neurologists widely differ on some points.

41.I think it must be accepted on the basis of the medical evidence that the applicant can return to work as a domestic helper, but with some loss of earning capacity. The only question is how much. Dr Shroff says 25% now, but that it still on the basis of his views of probability of convulsion which I have not accepted. The Board says 11%. Dr Woo puts the figure at 1%. This seems to be based on his assessment of a 1% impairment of the whole person following the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5^th Edition to which he refers although he does not specifically say so. What he says is that the impaired memory may limit her performance at work, while the headache and giddiness may compel periodic rests through the day.

42.With respect, it seems to me that Dr Woo’s assessment is very low, given the nature of the work. An employer is unlikely really to want a domestic helper who, once taken on, is found to have impaired memory, frequent headaches and has to take periodic rests throughout the day. The employer may put up with this but he may not. It is easy for an employer to terminate the helper’s contract; only a month’s notice is needed under the standard foreign domestic helper contract. So the chance of a helper with these deficits finding herself out of a job is fairly high. In the circumstances it seems to me that the percentage assessed by the Board is more realistic and I accept it.

43.So far as the section 9 claim is concerned, section 9(1A) does not come into the picture and the award under section 9(1) will be 96 x $5,300 x 11% = $55,968.00.

44.As far as the section 10 claim is concerned the Board certified 681 days’ absence from duty as necessary as a result of the injury, or about 22 months. Given my finding on the low probability of convulsion, I cannot accept Dr Shroff’s view that the sick leave period should be 4 years or indeed any more than that assessed by the Board. Dr Woo amended his original view to accept a sick leave period of 18 months. This is not far off what the attending doctors allowed in terms of the sick leave and is really rather a figure plucked from the air. I accept that the correct period is 681 days and I also accept Mr Nasir’s calculation thereon of $94,930.00. However the applicant has received advance payments totalling $62,000 and credit must be given for this so the final figure under section 10 is $30,930.00.

45.The section 10A claim is made out, on the applicant’s evidence and the documents, at $5,736.00.

46.The result is that the applicant is awarded compensation of $92,634.00. Interest is awarded at half the judgment rate from the date of the accident until judgment and thereafter at the judgment rate until payment. The applicant is awarded the costs of the action to be taxed if not agreed and her own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr. Amirali B. Nasir of Messrs. Nasirs for the Applicant.

Mr. Kumar Ramanathan instructed by Messrs. Clyde & Co. for the Respondent.