Singh Harpal v. Najib Transport

DCEC 798/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 798 OF 2005

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IN THE MATTER OF AN APPLICATION

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Coram:  His Hon Judge Leung in court

Date of hearing:  29-30 January 2008

Date of handing down judgment:  13 March 2008

ASSESSMENT OF COMPENSATION

1.In October 2004, Singh (the Applicant) got his right hand trapped in a compressing machine during work for Najib (the Respondent).  He filed his claim for compensation in June 2005 pursuant to the Employees’ Compensation Ordinance, Cap.282.  By consent, judgment on liability was entered in May 2006.  In connection with the assessment of compensation, Singh also appeals the assessment of his loss of earning capacity by the Employees’ Compensation (Ordinary Assessment) Board in January 2006.

BACKGROUND

2.Singh was born in India in August 1984 and was aged 20 at the time of the accident.  He had primary education.  He came to Hong Kong in the 1990’s.  The reported employment history here started in about 2000 when he worked as a packing worker.  By the time of the accident, he had worked for Najib, also as a packing worker, for a few months.  He earned a salary of HK$6,000.

3.After the accident, Singh was sent to the hospital.  According to the medical records of the hospital, there was swelling in his right hand.  X-ray showed no fracture or dislocation.  In view of the swelling and impending compartment syndrome, an emergency operation of fasciotomy was performed.  He was managed with analgesics and dressing care.  He was discharged 5 days later.  When the swelling subsided, he was re-admitted for suturing of the surgical wounds.  He was discharged 2 days later and was referred to physiotherapist for mobilisation exercise.  He was followed up at the outpatient clinic in the following month.  Singh was granted sick leave from the date of the accident to 21 September 2005, slightly over 11 months.

4.For his right hand injury resulting in scarring, pain and numbness, the Board in November 2005 assessed Singh’s loss of earning capacity to be 1.5% (Form 7).  This was reviewed in January 2006, yet the Board maintained such assessment (Form 9).  Singh filed his appeal against the assessment pursuant to section 18 of the Ordinance.

5.The above background is not in real dispute.  Amongst others, the major dispute surrounds the percentage loss of earning capacity for the purpose of assessment – an issue relating to both the section 18 appeal and the applicability of section 9(1A) of the Ordinance.

SINGH’S CURRENT COMPLAINT

6.Singh’s statement did not stand as his evidence.  He gave his evidence in court.  His major complaint is that he could no longer carry out any heavy duties including his pre-accident work.  His hand gets tired, stiff and numb.  After the accident, he managed to do light delivery work involving just a few shirts to shops.  He claimed that but for the accident, he would have wanted to work in construction site in the future.

MEDICAL EXPERT EVIDENCE

7.The medical expert opinion plays a crucial role in the dispute between the parties.  The orthopaedic experts engaged on behalf of the parties actually testified in court, though they also adopted the content of their various reports.  It is therefore necessary to refer to the experts’ evidence in detail.

The evidence

8.Dr David HF Cheng was the orthopaedic expert engaged by Najib’s solicitors.  Dr Cheng first examined Singh in August 2005 and produced his report in October 2005.  Dr Cheng recorded the diagnosis as lacerations of Singh’s right hand on the basis of the bleeding and pain upon the accident.  This was not an entirely complete or accurate account of the actual diagnosis.  However this could partly be explained by the fact that Dr Cheng did not have the medical records of the hospital at that time.

9.Nevertheless, Dr Cheng observed that the wounds had healed satisfactorily.  The hand function was fully restored.  There was no need for further treatment.  Dr Cheng detected no permanent physical impairment.  The possibility of some residual pain would amount to 1% whole person impairment and 1% loss of earning capacity.  Since Singh’s physical condition was hardly affected, he was considered to be capable of resuming his pre-accident job.  No job restriction or change of job on medical grounds would be necessary.

10.Dr Patrick KS Wong, the orthopaedic expert engaged by Singh’s solicitors, examined Singh in March 2006.  This led to the expert’s report in the following month.  For the purpose of his assessment, Dr Wong referred Singh to undergo nerve conduction tests to ascertain any nerve damage to his injured hand.  Dr David KF Chin, a neurologist, carried out such test.  Dr Chin’s report was also produced.

11.Dr Wong’s physical examination of Singh showed mild reduced right forearm muscle bulk and stiffness with active movement, reduced sensation in fingers, reduced grip strength and intrinsic muscle bulk.  From the nerve conduction tests, Dr Chin discovered mild impairment of right median sensory nerve conduction and distal motor latency of right median nerve.  There was also mild residual damage of right median nerve at the right wrist level.  Taking such test result into account, Dr Wong estimated Singh to have: (1) 20% impairment of the nerve function or 9% upper extremity impairment; (2) 2% upper extremity impairment for the joint stiffness; and (3) 1% upper extremity impairment for the multiple scars.  This gave a total of 12% upper extremity impairment or 7% of the whole person.  Using the reference figure of 80% loss of earning capacity for the loss of the dominant upper extremity, the loss of earning capacity in Singh’s case would be 12% of 80% and therefore 9.6%.  Dr Wong considered 1 year’s sick leave would be appropriate.

12.Having perused the medical records of the hospital and Dr Wong’s report, Dr Cheng produced a supplementary report in September 2006.  Dr Cheng expressed his reservation about Dr Wong’s quantitative interpretation of the result of Dr Chin’s nerve conduction test – mild nerve impairment – to be 20% impairment of the nerve, while physical findings in support of such extent of damage were absent.  Himself refraining from interpreting the neurologist’s test result, Dr Cheng suggested further test to be done by neurologist before he expressed his further opinion.  This was subsequently done by way of a joint neurological expert report in February 2007.

13.The neurological experts were Dr Edmund K W Woo and Dr Brian Choa.  The former was engaged by Singh’s solicitors and the latter was engaged by Najib’s solicitors.  Nerve conduction study of the motor and sensory nerves was carried out.  The findings and opinion of the neurological experts turned out to be largely ad idem.

14.From the test, the mild prolongation in distal motor latency and reduction in sensory amplitude in the right median nerve indicated its mild dysfunction at the level of the carpal tunnel of the wrist.  The right ulnar and the right radial nerves were normal.  However, Singh demonstrated diffuse weakness in all the intrinsic hand muscles innervated not only by the median but also by the ulnar radial nerves.  He also demonstrated weakness in the forearm muscles proximal to the level of injury at the wrist.  Dr Woo found that such distribution of the sensory loss affecting all digits in the entire hand was too extensive to be accounted for by an isolated median nerve lesion.  The tremor demonstrated by Singh also could not be explained by any neuropathological disorder and its distractibility militated against an organic lesion.  Dr Woo found all these to be defying neurophysiological principles.

15.The electrophysiological evidence of a mild median nerve dysfunction in the carpal tunnel suggested that there had probably been some compression on the median nerve at or shortly after the accident.  Dr Woo accepted that.  But Dr Woo opined that it had most probably recovered.  There was now only mild electrophysiological evidence of a median nerve entrapment without supporting physical deficits.  Such mild abnormality should account for at most some sensory discomfort in the median 3 and a half fingers but motor loss was not expected.  This led to 2% impairment of the upper extremity or 1% of the whole person.  The loss of earning capacity as a result should not exceed 1%.  Dr Woo suggested no further pharmacological or surgical treatment; and considered 6 months of sick leave (from the neurological perspective) to be appropriate.  The current deficits of Singh were caused by the stiffness and scarring in the soft tissues in the hand and the wrist.

16.Dr Choa agreed entirely with Dr Woo’s assessment.  The expert added that the mild degree of impairment should not affect Singh’s ability to resume his pre-accident job.  Loss of earning capacity should be nil.

17.The orthopaedic experts were consulted again, now in the light of the findings and the opinion of the neurological experts engaged on behalf of both parties mentioned above.  Dr Wong first gave his further opinion in February 2007 but without seeing Singh again for this purpose.  Dr Wong admitted that he took the liberty of interpreting the mild median nerve impairment described by Dr Chin in his test report to mean 20% impairment of the nerve.  In view of the neurological experts’ contrary opinion, Dr Wong reported that he consulted Dr Chin for confirmation.  Dr Chin was said to agree with Dr Wong’s quantification.  Dr Wong strongly believed that he had not grossly over-estimated Singh’s impairment.  He added that the difference could be explained either by the significant improvement of Singh’s condition since he last examined him or by the lack of a standard in converting the nerve test result into percentage impairment of the upper extremity.  But Dr Wong accepted that the joint neurological expert opinion had definitely an impact on his opinion.

18.The updated examination of Singh was arranged and held jointly by Dr Cheng and Dr Wong in June 2007.  This led to their joint report in July 2007.

19.Dr Wong categorised the different assessments by the neurologists a dispute as to how to quantify mild nerve impairment into percentage; and stressed that one should not be confused or distracted by such dispute to think that the median nerve impairment was the only residual impairment.  It was merely part of the overall orthopaedic impairment.

20.Dr Wong noted that Singh’s complaints remained more or less the same as before.  From this examination, the expert acknowledged that the tremor right hand, reduced active movement, weakened grip, subjective numbness demonstrated by Singh were not supported by objective positive finding such as muscle wasting, joints contracture or trophic skin change.  However, Dr Wong considered these factors: (1) Singh’s right hand crush injury was severe in nature; (2) Singh’s subjective complaints could not be fully substantiated by objective findings of physical examination but it was likely because of the element of functional (or psychological) component and therefore magnification of the symptoms; (3) Patients with such injury were expected to have some residual pain, stiffness, weakness and numbness, the severity of which would depend on factors such as the force of the crush, timing of the fasciotomy and the effectiveness of rehabilitation; (4) Singh should have made reasonable recovery from the severe crush injury and was expected to have mild residual pain.  As a result, Dr Wong updated his assessment of Singh’s impairment and loss of earning capacity to 5%.

21.On the other hand, Dr Cheng observed that Singh’s condition has hardly changed since the last examination 2 years ago.  Singh’s complaint was not supported by objective physical findings.  The hand function was objectively quite normal.  Also referring to the joint neurological expert opinion, Dr Cheng opined that Singh has recovered well from his hand injury.  There is little physical impairment and possible residual pain and discomfort.  Yet the hand function is not significantly affected.  Dr Cheng therefore maintained his previous assessment of 1% of the whole person and the same degree of loss of earning capacity.  Likewise, Singh should be able to resume his pre-accident job and there is no need for work restriction or job change on medical grounds.

Discussion

22.Considering the medical expert evidence, I have difficulty in accepting Singh’s case on the basis of Dr Wong’s opinion.

23.I cannot agree with Dr Wong’s categorisation of the difference between the neurologists as a dispute as to how to quantify the mild impairment into percentages.  The so-called quantification exercise was carried out only by Dr Wong, who took ‘mild’ to mean 20%.  None of the parties’ neurological experts ever suggested that the percentage impairment assessed by them was a quantification of their description of the impairment as being mild.  None of them suggested that the difference between them and Dr Chin lies in how many degrees should be attached to the description of ‘mild’.  The neurologists used the word ‘mild’ at the same time of assessing permanent impairment at a percentage.  It is the percentage actually given by the experts which reflects their opinion about the mild degree of impairment.

24.I see no need for Dr Wong’s reminder against confusion or distraction (by this dispute he described) to think that median nerve impairment is the only residual impairment of Singh’s right hand, as it is just part of the overall orthopaedic impairment.  This understanding is abundantly clear from the reports of the orthopaedic and the neurological experts.  I see no propensity of any of the experts to be so confused or distracted.

25.For the purpose of this assessment, Singh is not relying on Dr Chin as the neurological expert.  Otherwise, I would have expected explanation for the remarkable difference between the percentage said to be confirmed by Dr Chin and that assessed by Dr Woo, the neurological expert actually engaged on Singh’s behalf.  Dr Wong proposed that the neurological experts might have worked on what he described as a different base line from his (or impliedly that of Dr Chin too).  But Dr Wong is not a neurological expert.  For the neurological aspect, I should prefer the opinion and assessment by the Dr Woo and Dr Choa, who are the specialists engaged on behalf of the parties, not Dr Wong.

26.For the same reason, I would be slow in sharing the reservation which Dr Wong once expressed about whether the nerve conduction tests performed by Dr Chin and the neurological experts respectively were the same; how frequent the neurological experts handle crush hand patients; whether the neurological experts meant to give a holistic assessment on Singh’s hand injury or only the nerve function across the wrist.  The neurologists were never asked to address such concern raised by Dr Wong.

27.In adjusting his assessment from 9.6% loss of earning capacity to 5% in February 2007, Dr Wong referred to numerous considerations.  He first referred to the severe nature of the crush injury.  He also stated that patients with such injury are expected to have some residual pain, stiffness, weakness and numbness.  In my judgment, for the purpose of this assessment, the concern is not the degree of pain and suffering immediately due to the accident (though this may be a matter for a common law claim).  It does not follow from a serious injury that the degree of impairment and loss of earning capacity would necessarily be high as might be expected.  Condition could develop for better or worse, depending on the eventualities.  The concern is the resultant impairment and loss of earning capacity substantiated by objective findings.

28.The significant inconsistency between Singh’s subjective complaint and the neurological findings was remarkable as explained by Dr Woo, and agreed by Dr Choa, in their joint report.  Whilst Dr Wong acknowledged that Singh’s subjective complaints could not be fully substantiated by objective findings of physical examination, he suggested an element of functional (or psychological) component.  He described this as not uncommon among injured workers.  This, he suggested, may account for symptom magnification; but he refused to equate this with exaggeration.  However, there is really no evidence of actually a psychological aspect in Singh’s condition.  What Dr Wong suggested, in my view, is nothing more than the subjectivity in Singh’s complaints and demonstration of symptoms.

29.Another part of Dr Wong’s evidence in court also causes me some concern.  Dr Wong explained his observation of how the Board might be carrying out its assessments.  He gave evidence that relative to how he would conduct his assessment; the Board manages to spend only very little time and to consider not as much evidence.  Dr Wong told from his past experience of sitting on the Board.  However, insofar as this was contended to be a relevant factor when considering whether the Board’s assessment should stand, I would have expected such evidence to be properly adduced to show how the Board actually assessed Singh’s condition in November 2005 and January 2006.  Otherwise, I too would have reservation about the relevance, if not only fairness, of such rather general suggestion by Dr Wong against the Board.

30.Dr Cheng’s opinion was questioned during trial.  It was pointed out that his assessment in 2005 was based on the diagnosis of lacerations in the hand whereas his assessment in 2007 was based on the actual diagnosis of crush injury, impending compartment syndrome and mild neurological impairment.  Dr Cheng agreed that had he known in 2005 that Singh had impending compartment syndrome calling for the fasciotomy, he would have agreed to 2 to 3 more months of sick leave for his recovery.  It was then queried how it would be reasonable for Dr Cheng in July 2007 to maintain his assessment of 1% loss of earning capacity made in October 2005.

31.Logical as the above query may sound, yet this is never a question of simple logic.  Indeed Dr Cheng dismissed such scepticism, explaining that he still looked at the outcome or end result of the injury at the time when he examined the patient; and assessed the degree of impairment and loss of earning capacity on such basis.  He did this in 2005 as he did this in 2007.

32.For the neurological aspect, the expert opinion of the parties’ neurological experts is unanimous and compelling.  I accept their opinion and assessment.  For the orthopaedic aspect, on balance, my inclination after considering the reports and evidence in court is to prefer the opinion of Dr Cheng.

THE SECTION 18 APPEAL

33.Mr Clement for Singh, in his submissions, summarised the expert evidence like this: For the neurological impairment, Dr Wong says 2% whereas the neurological experts says 1%.  For the orthopaedic impairment, Dr Wong says 3% whereas Dr Cheng says 1%.  The difference on neurology is thus either 2% or 1% and that on orthopaedic either 3% or 1%.

34.The basis for a summary and comparison like this is partly what Dr Wong said in court.  It was actually Mr Clement who asked Dr Wong to separate the neurological from the orthopaedic impairment out of the 5% impairment which he assessed.  Dr Wong did say 2% for neurological and 3% for orthopaedic impairment.  When asked about this by Mr Clement, Dr Cheng was reluctant to agree that they should be so separated.  I have similar reservation about this exercise, particularly when Dr Wong himself described in his joint report with Dr Cheng that the median nerve impairment is “just part of the overall impairment” of the hand.  Dr Cheng gave his assessment of 1% after taking into account the 1% neurological impairment as assessed by the neurological experts.  It should also be noted that the neurological experts found at most some sensory discomfort in the median of a few fingers but motor loss is not expected.  The way Dr Woo put it was that the loss of earning capacity as a result of the electrophysiological abnormality “should not exceed 1%”.  Dr Woo even considered no loss of earning capacity in the present case.

35.In line with the above, the basis for challenging the Board’s assessment of 1.5% loss of earning capacity is hardly substantiated.

SECTION 9(1A)

36.Singh seeks to invoke section 9(1A).

37.The compensation for permanent partial incapacity shall be assessed (in the case of a scheduled injury) according to the percentage loss of earning capacity as specified in the First Schedule to the Ordinance: see section 9(1)(a); or (in the case of a non-scheduled injury) according to such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time: see section 9(1)(b).

38.The above is expressly subject to section 9(1A).  This effectively overrides section 9(1) in the event that the percentage loss of earning capacity so specified or assessed would be substantially less than the actual degree of loss in the special circumstances of the employee.  In such event, the compensation shall be such percentage as calculated under section 9(1)(b) but having regard to the special circumstances.  Examples of these special circumstances include the nature of the injuries in relation to the nature of his former usual employment, his qualification, previous training and experience: see section 9(1A)(1).  It has been suggested that special circumstances also include age, health and language restriction: see Butterworths’ Personal Injury Service at Section IV[1603].

39.Singh seeks to invoke section 9(1A).  The question is whether there are special circumstances in the case of Singh which aggravated his loss of earning capacity so as to render the percentage loss ascertained for the purpose of section 9(1) inapplicable.

40.The case of special circumstances is built on the premise that Singh is young; speaks only Punjabi and Hindi; had primary education in India before he left for Hong Kong at the age of 11; and could not reasonably be expected to have any job here other than manual work.  Singh gave evidence that Najib had suggested that there would be salary rise.  But Singh would want to change for the better by doing construction work in the future.  He claims that as a result of his injury, he was not able to carry out even the pre-accident work which involved repetitive work and weight handling.  Dr Wong gave evidence that Singh is not fit for such work or construction work entailing such demand on him.

41.Due to his limited education and linguistic restriction, I believe that Singh may be expected to target manual work for a living at least in the foreseeable future.  However, the fact was that first he started to do packing work, earning HK$4,500.  He then changed to work for Najib, which was still packing work but earning him a relatively higher salary of HK$6,000.  After the accident, and in his condition as alleged, he started doing delivery work.  Though this was a relatively lighter work, he managed to earn HK$5,500 a month, a comparable income level as before. Singh has never sought construction work with a view to better income.  I cannot help having doubt whether the allegation was made for the purpose of section 9(1A).  Insofar as his credibility is concerned, I find Singh’s often resort to his being un-educated as an excuse for failing to remember things or to explain inconsistency in his evidence unhelpful in presenting a credible picture.

42.In any event, as I prefer the opinion of the parties’ neurological experts and the evidence of Dr Cheng, there is really no objective basis for believing Singh’s allegation that he would not be able to resume his pre-accident job.  In view of such limited permanent physical impairment, I also find it hard to believe that Singh is or would be faced with any material restriction on choice of job, including construction work.  I reject Singh’s claim of incapacity to carry out such work, if he really wants to do so.

43.None of the authorities cited by Mr Clement for Singh seem to involve degree of impairment and loss of earning capacity which is as low as those assessed by the experts in this case (which I prefer).  Considering all the circumstances, I am not satisfied that Singh’s claim pursuant to section 9(1A) manages to take off the ground.

SECTION 9(1) COMPENSATION

44.In the absence of any appeal by Najib, I find that it is proper to adopt 1.5% as assessed by the Board for the purpose of the assessment, instead of the 1% assessed by the experts.

45.The compensation for permanent partial incapacity in this case should be HK$6,000 x 96 x 1.5% = $8,640.

SECTION 10 COMPENSATION

46.The compensation for temporary incapacity in this case should be HK$6,000 x 11 months and 1 week (or 11.2 months) x 4/5 = $53,760.

SECTION 10A COMPENSATION

47.The claim for medical expenses in the sum of HK$802 is agreed.  The claim for the cost of the electromyogram and evoked potential studies in the total sum of HK$6,530 is not.  These were the tests carried out by Dr Chin in March 2006 upon the referral of Dr Wong.  Mr Clement for Singh submitted that the paramount purpose of these tests was to ascertain the level of the problem and to see what treatment might be required, though they also assisted the expert.

48.To begin with, this is a claim under the statutory scheme and whether an item could be allowed depends on whether the expenses fall within section 10A.  Section 10A(1) limits the claim to that for “medical expenses for the medical treatment in respect of such injury”.  Dr Wong was neither the treating doctor nor connected with the treatment of Singh.  The referral to Dr Chin for the tests, in Dr Wong’s own words in the referral note, was to see if any objective evidence of nerve damage existed.  I do not accept the suggestion that this was for the paramount, if any, purpose of preparing for the treatment of Singh.  Dr Wong did not testified to that effect either.  Accordingly this cannot be claimed purportedly under this section as medical expenses.

SUMMARY

49.The compensation shall be as follows:

50.It is common ground that Najib has made to Singh periodical payments in the sum of HK$57,360.  Giving credit to this amount, the net compensation now payable shall be HK$5,842.

ORDER

51.Najib shall pay to Singh compensation in the sum of HK$5,842 together with interest thereon at half judgment rate from the date of accident to today.  Interest thereafter shall accrue at the judgment rate until full payment.  I make a nisi order that Najib shall pay Singh’s costs of and occasioned by the assessment, including any costs reserved.  Costs shall be taxed, if not agreed.  Unless appointment is made in 14 days to argue costs, the costs order shall become absolute.

Represention:

Mr R M Clement of Messrs Massie and Clement for the Applicant

Mr E C Mumford, SC instructed by Messrs Peter W K Lo & Co for the Respondent