Kashif Munir v. Heng Fai Geog. & Const Co Ltd Ad Another
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DCEC401/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 401 OF 2006 ----------------------
------------------------ Coram: H H Judge Marlene Ng in Court Dates of Hearing: 11th December 2007 and 23rd January 2008 Date of Handing Down Judgment: 29th April 2008 --------------------------------------------------- ASSESSMENT OF COMPENSATION ---------------------------------------------------- I. Introduction 1.On/about 14th March 2005, the Applicant in the course of his employment with the 1st Respondent (being sub-contractor of the 2nd Respondent) carried out drill rig works, ie drilling holes on slope/ retaining wall, at Lantau Island. When he tried to loosen a metal drill rod from the drill hole, he was hit by the rod in the abdomen and fell from a two-metre high platform (“Accident”). He claimed to have landed on his back, but Dr Baldwin Chan (“Dr Chan”), the orthopaedic expert of the 1st and 2nd Respondents, in his expert report dated 15th June 2006 (“Dr Chan’s Report”), noted the Applicant said he fell on his buttocks. 2.The Applicant claimed against the 1st and 2nd Respondents for employees’ compensation. On 26th February 2007, judgment on liability was entered for compensation to be assessed. Both parties appealed against the assessments in the Certificate of Assessment dated 7th August 2006 (“Form 7”) on (a) the period of absence from duty necessary as a result of injury, and (b) loss of earning capacity permanently caused by the injury. 3.It was agreed (a) the Applicant’s monthly earnings prior to the Accident were HK$10,721.67, (b) he had received advance periodical payments in the sum of HK$89,000.00 from the 1st and 2nd Respondents, and (c) he had incurred medical expenses in the sum of HK$1,046.00. 4.The Applicant and Mr Simon Ma Koon Hung (“Mr Ma”), a director of Elite (Commercial Services) Company (“Elite”), gave evidence. The expert reports of the Applicant’s orthopaedic expert, Dr Lam Kwong Chin (“Dr Lam”), dated 16th August 2006 (“Dr Lam’s Report”) and Dr Chan’s Report were adduced as expert evidence. 5.Mr So, counsel for the 1st and 2nd Respondents, submitted that the Applicant’s evidence as to his injuries/disabilities was not credible/reliable. In assessing witness’ credibility, the court should consider the totality of the witness’ evidence against the documentary evidence, inferences based on inherent improbabilities and/or undisputed facts (see the principles set out by Chung J at paragraph 12 of Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13th August 2005)). On balance, although I accept the Applicant suffered some injury and work incapacity as a result of the Accident, I find his evidence unsatisfactory on the core issues. In various material respects, his account did not sit well with the factual matrix and/or contemporaneous documents. II. Applicant’s personal and working history 6.The Applicant was born in Pakistan and was 27 years old at the time of the Accident. There is no evidence to contradict his assertion that he was healthy prior to the Accident. 7.The Applicant came to Hong Kong in 1997. In 1998, he started to work for the 1st Respondent as a labourer whose main duties included carrying heavy objects (eg iron rods, bricks and wooden sheets) and passing them to the scaffolder. He gradually acquired more experience, and in 2001 started to work as a scaffolder. 8.The 2nd Respondent’s Form 2 dated 6th April 2005 described the Applicant as a miscellaneous worker (什工), but the certificate by the 1st Respondent dated 1st March 2005 confirmed he was employed as “a scaffolder (labour)” since 5th March 2001. Mr Lam, counsel for the Applicant, and Mr So both agreed the crucial consideration was the true nature of the Applicant’s work and not his job title. 9.I accept on balance that at the time of the Accident the Applicant worked as a scaffolder as follows :
The Applicant claimed that by 2005 his labourer’s duties in (c) and (d) above formed only a small part of his duties, but he did not give any detailed evidence as to the ratio between his labourer’s and scaffolder’s duties and/or between his work done at ground level and at height. III. Medical treatment : first stage 10.The Applicant claimed that as a result of the Accident he suffered injuries to his abdomen and back. The 1st and 2nd Respondents denied any back injury. The Applicant told Dr Chan that after the Accident he had dizziness, and he also vomited and almost lost consciousness. The Applicant was sent to the accident and emergency department (“AED”) of Princess Margaret Hospital (“PMH”). Dr Chan opined that the Applicant’s abdominal injury caused his initial symptoms such as dizziness and vomiting. 11.PMH’s medical report dated 21st June 2005 stated that physical examination of the Applicant showed there were tenderness and abrasion over his abdomen. PMH’s department of surgery (“SD”) admitted the Applicant for hospitalisation. According to the medical reports of PMH’s SD dated 16th September 2005 and 28th August 2006 respectively, the Applicant complained of upper abdominal injury with pain. Physical examination on admission revealed “abrasion over epigastric and abdomen was soft”, but x-ray of spine showed no fracture. The Applicant was discharged with analgesics on 16th March 2005, and was granted sick leave from 14th to 23rd March 2005. 12.I agree with Dr Chan that the Applicant suffered contusion injury of his abdomen, but no serious internal organ injury. After all, he was hospitalised for only 2 days with no follow-up arranged by PMH’s SD. 13.On 27th March 2005, the Applicant attended the AED of Ruttonjee & Tang Shiu Kin Hospitals (“RTSKH”) for abdominal contusion, and was granted sick leave from 27th to 29th March 2005. 14.According to PMH’s medical report dated 21st June 2005, the Applicant re-attended PMH’s AED on 29th March, 5th April and 11th April 2005 for abdominal injury. The medical certificates for sick leave from 29th March to 16th April 2005 referred to abdominal injury/pain. 15.Significantly, there was no mention in the medical reports and medical certificates issued by PMH and RTSKH of any back injury/ pain from 14th March to 16th April 2005. On one hand, the Applicant explained he was so shocked by the Accident that he did not say much to PMH’s medical personnel on admission. Even so, he insisted that he actually had back ache/pain after the Accident, but the pain in his abdomen “and other areas” was such that he did not pay much attention to his back ache/pain until the Incident (see paragraph 22 below). On the other hand, the Applicant also claimed he did not hide his back ache/pain from the medical personnel, but due to language barrier he only pointed to the relevant part of his body to indicate his back injury/pain to them. 16.The above assertions did not sit well together, and I am not persuaded by the Applicant’s evidence that he had serious and/or persistent back ache/pain after the Accident. First, if (as the Applicant claimed) he did suffer persistent back pain from 14th March to 16th April 2005, I doubt whether he would have been so distracted by his abdominal injury that he failed to pay any attention to his back ache/pain. He did not elaborate on what “other areas” of his body were so painful that it overshadowed his back ache/pain. 17.Secondly, I find it improbable that PMH and RTSKH doctors all misunderstood his alleged identification of back ache/pain by pointing to his body, so that up to 16th April 2005 there was no record of any subjective complaint by the Applicant of back ache/pain or of any objective clinical signs of back injury/pain in the medical reports/ certificates. I further note that despite the alleged language barrier the medical personnel had no difficulty understanding/recording the Applicant’s complaint of abdominal contusion and tenderness. 18.Thirdly, Mr Lam’s submission that the Applicant’s “back pain might also have subsided due to the prescription of analgesic” was inconsistent with the Applicant’s evidence that the back ache/pain remained the same (ie it did not worsen or subside) during the relevant period. 19.Mr So argued that the Applicant’s back pain (if any) must have happened after 16th April 2005. However, I cannot ignore the fact that, as noted by Dr Lam, the mode of injury (ie falling from height and landing on back/buttocks) was quite compatible with soft tissue back injury/pain. I find on balance that the Applicant did suffer simple back contusion with soft tissue injury upon his fall from a height of 2 metres, but his back discomfort was so mild that he did not (a) pay much attention to it or (b) inform PMH’s and RTSKH’s medical personnel of the same before 16th April 2005. IV. Return to work 20.Although not mentioned in his witness statement, the Applicant told Dr Lam/Dr Chan and also gave evidence that upon expiry of sick leave on 16th April 2005 he resumed work with the 1st Respondent at a construction site in Sheung Wan. 21.According to Dr Chan’s Report, the Applicant gave history of resuming normal duty as a labourer upon expiry of his sick leave. But the Applicant gave evidence that after the Accident and until he resumed work, he had back/leg pain and was unable to lift/carry heavy objects. 22.During the first week, the Applicant operated the drilling machine to carry out drilling work for 1 day. He gave evidence that although he had slight back pain, he thought he would be alright so he continued to work. The Applicant further claimed that when he tried to pick up a metal rod during the second week, he could not do so and felt severe back ache/pain (“Incident”). In Dr Chan’s Report, the Applicant gave history that his back pain started to increase again after the Incident. 23.The Applicant gave evidence that the Incident was the first time he paid particular attention to his back pain, which was such that he sought medical treatment on 5th May 2005. But such assertion did not sit well with his earlier evidence that prior to 16th April 2005 he had already indicated to the medical personnel he suffered back pain by pointing to his body (see paragraph 15 above). 24.I am not persuaded that the Applicant’s evidence in this respect was credible. I have found he only had mild back discomfort as a result of the Accident. After all he was able to resume work after 16th April 2005 and operate the drilling machine. However, I accept there was still some mild residual ache/pain as a result of the Accident (but not of the severity as claimed), and that such mild residual ache/pain contributed to the Incident. In coming to such conclusion, I bear in mind (a) the fact that the Applicant had been lifting metal rods with no mishap since 1998, and (b) the temporal closeness between the Accident and Incident. However, although the Applicant had some increase in back ache/pain after the Incident, I am not persuaded it was as severe and/or long-lasting as claimed. Such conclusion is borne out by the expert medical and surveillance evidence discussed below. V. Medical treatment : second stage 25.The Applicant claimed that on 5th May 2005 he had so much back pain that he re-attended RTSKH’s AED with his cousin. There was no evidence that his cousin acted as interpreter for him, but interestingly he had no problem in telling the medical personnel he had back pain. The Referral for Physiotherapy recorded that the Applicant gave history of back injury and abdominal wall contusion in March 2005 with low back pain. This was the first entry for back pain in the Applicant’s medical records. The Applicant claimed under cross-examination that this was the first time he told the medical personnel he had back pain, but such assertion did not sit well with his earlier evidence (see paragraph 15 above). 26.According to the medical report of RTSKH’s department of orthopaedics and traumatology (“OTD”) dated 27th July 2005, x-ray of lumbosacral spine taken on 5th May 2005 showed reduction of lumbar lordosis. The Applicant was given sick leave for abdominal contusion and back pain from 5th to 9th May 2005. 27.On 9th May 2005, the Applicant re-attended RTSKH’s AED for the same complaints and was given a referral letter to the OTD. He was granted sick leave for low back pain from 10th to 15th May 2005. On 15th May 2005, the Applicant re-attended RTSKH’s AED for abdominal contusion and low back pain. He was granted sick leave for low back pain from 15th to 17th May 2005. 28.The Applicant claimed a friend accompanied him on each of the above-mentioned medical attendances. Although there was no suggestion that his friend acted as his interpreter, the Applicant was consistently able to tell the medical personnel about his back pain. This lends weight to the above conclusion that the Applicant’s back discomfort prior to 16th April 2005 was so mild that he did not tell the medical personnel of PMH and RTSKH (see paragraph 19 above). I accept that after the Incident the Applicant had some genuine back pain (see paragraph 48 below), but it was not as persistently severe as suggested by the Applicant (see paragraph 55 below). 29.Between 17th May and 8th July 2005, the Applicant attended Violet Peel General Out-patient Clinic (“OP Clinic”) 14 times for “upper back pain (IOD)”, “back pain”, “back pain, abdominal pain”, “low back pain”, “R sciatica / back injury”, and “URTI” (ie upper respiratory tract infection which was unrelated to the Accident). He was granted sick leave from 17th May to 10th July 2005. The Applicant first attended RTSKH’s orthopaedic clinic (“OT Clinic”) on 11th July 2005. 30.The reference to “R sciatica” in the medical certificate of the OP Clinic dated 1st June 2005 was the first recorded reference to leg pain or thigh ache. However, according to the medical report of RTSKH’s OTD dated 27th July 2005, physical examination revealed diffuse lumbosacral tenderness and paraspinal muscle spasm, but no bruising over the back and no definite lower limb neurological deficit. In short, there was no objective clinical sign of right sciatica, and no mention of subjective complaint of right leg numbness. 31.But when the Applicant gave evidence, he insisted he also had right thigh ache particularly at the distal end. He also gave similar history to Dr Lam and Dr Chan. At first he said he could not remember whether he told the OT Clinic of numbness of his right leg, but later claimed he casually mentioned thigh pain when asked whether he had other discomfort. He added it was not a very serious discomfort, but he felt painful when he sat upright, bent forward or sat for long while. 32.I find the Applicant’s evidence in this respect unconvincing. First, notwithstanding the Applicant’s evidence that he did mention thigh pain to the OT Clinic’s medical personnel, there was no reference to such subjective complaint in the medical report of RTSKH’s OTD dated 27th July 2005. 33.Secondly, if, as the Applicant claimed, his ache/pain remained the same up to expiry of his sick leave in May 2006 (see paragraph 37 above), the contrast between his evidence of mild leg discomfort meriting only a casual mention to the OT Clinic’s medical personnel (see paragraph 31 above) and his complaint to Dr Lam of “numbness of whole limb, worse at posterior thigh” as well as his complaint to Dr Chan of pain radiating to both thighs with walking for 15 minutes is inexplicable. No medical basis was shown for such deterioration especially when the Applicant received physiotherapy and occupational therapy treatment and allegedly did not work during the relevant period. 34.Thirdly, the complaint of leg numbness/pain did not sit well with the objective findings set out in the medical report of RTSKH’s OTD dated 27th July 2005 (see paragraph 30 above), in Dr Lam’s and Dr Chan’s Reports (see paragraph 47 below) and in the normal MRI studies in April and August 2006 (see paragraph 36 below). I am of the view there was exaggeration of right leg pain/numbness by the Applicant. 35.Returning to the chronology of the Applicant’s medical treatment, physiotherapy was arranged in July 2005. The Applicant claimed he regularly attended the OT Clinic for follow-up treatment and received physiotherapy and occupational therapy treatment at RTSKH between July 2005 and February 2006. In light of the receipts for physiotherapy and occupational therapy sessions up to 5th October 2005 and 24th February 2006 respectively, Dr Lam’s Report erred in stating the Applicant received physiotherapy treatment until 18th June 2006, but occupational therapy was not given. 36.RTSKH’s OTD granted sick leave to the Applicant for “back injury” and/or “back pain” from 11th July 2005 to 21st May 2006, but no physiotherapy or occupational therapy treatment was offered after February 2006. Surgery was not recommended upon MRI study in April 2006. The Applicant claimed he was not told of the MRI results. But it could reasonably be inferred from the absence of further active treatment other than follow-ups that there were no abnormal findings. This was corroborated by the MRI study in August 2006 which was within normal limits (see paragraph 47(f) below). VI. Applicant’s complaints 37.The Applicant claimed that subjectively his back pain remained the same (ie it did not worsen or subside) from 5th May 2005 (ie first medical attendance after the Incident) to 21st May 2006 (ie expiry of sick leave). 38.It was common ground that by about June/July 2006 (ie when the Applicant was medically examined by Dr Lam and Dr Chan), the Applicant no longer had any abdominal complaints. He claimed he still had persistent back pain in mid-back region and numbness of right lower back. Such condition would worsen with fast walking, prolonged walking (with radiation to both thighs with 15 minutes of walking), prolonged sitting (for 40 minutes to 1 hour) without change of posture (eg as when he gave evidence in court), walking up steps, lifting weight and waking up in the morning. The Applicant claimed to have severe mid-back and right lower thigh pain upon waking up in the morning. 39.By the time of the assessment hearing, the Applicant still attended follow-ups at RTSKH at intervals of 1 to 6 months, and was prescribed analgesics and ointments. He claimed that (a) he still had persistent back pain and numbness of right leg for which he required painkillers for pain relief, and (b) he could not lift heavy objects. He unsuccessfully tried to lift weight of 12-13kg, but by December 2007 he could walk (not run) for a while and lift weight up to 2-3kg. He claimed he could not work at all until 1st March 2007. 40.However, the Applicant’s subjective complaints and his claimed inability to work until March 2007 turned on the reliability of his evidence, which should be assessed against inter alia the whole factual matrix, the medical reports/records, the objective clinical signs and examination findings by Dr Lam/Dr Chan, their expert medical opinion, and the surveillance evidence. 41.I turn first to the expert medical evidence. VII. Expert medical evidence 42.I reject Mr Lam’s submission that greater weight should be given to Dr Lam’s medical opinion because he medically examined the Applicant in July 2006 whilst Dr Chan did so in June 2006. There is no evidence to suggest that the Applicant’s medical condition in June and July 2006 was different. 43.Both experts noted the Applicant could walk unaided in a normal but slower gait. Dr Lam noted the Applicant could not squat fully, but Dr Chan recorded the Applicant could squat down and get up fully with one hand holding the furniture. Dr Chan noted the Applicant’s single leg stance was unsteady, but Dr Lam noted the Applicant sat with stability. 44.Dr Chan noted that on palpation there was diffuse superficial tenderness around midline and paraspinal regions of the lumbar spine area with no paraspinal muscle spasm. Dr Lam noted there was tenderness at midline and left side at lumbosacral junction with left paraspinal muscle tightness. The Applicant also complained to Dr Lam of numbness of whole right lower limb, worse at posterior thigh. 45.Physical examination by both experts elicited limited range of back movement in all directions with back pain. Forward flexion, backward extension, left lateral deviation and right lateral deviation were 30˚, 10˚, 10˚, 30˚ (according to Dr Lam) and 40˚, 10˚, 15˚ and 15˚ (according to Dr Chan) respectively as compared with normal range of >60˚, >25˚, >25˚ and >25˚ respectively. 46.The above physical examination findings by the medical experts depended on (a) the Applicant’s voluntary cooperation and/or (b) his reliability in reporting pain and/or limitation of movement. Hence, his allegations of pain/numbness must be considered against the more objective part of the examination findings. 47.In my view, the more objective part of the examination findings by both medical experts did not support significant signs of residues such as severe back pain and right thigh numbness/pain that seriously limited body movement/posture and/or ability to lift weight. The essential examination findings by the medical experts were as follows :
48.Both medical experts agreed the Applicant’s back injury was a soft tissue contusion injury. Dr Lam opined (and I accept) that the presence of paraspinal muscle spasm and reduction of lumbar lordosis as noted in the medical report by RTSKH’s OTD dated 27th July 2005 (see paragraphs 26 and 30 above) were good objective evidence of genuine back pain. However, as Mr Lam conceded, such comment referred to the Applicant’s condition in May to July 2005, which is consistent with my conclusion in paragraphs 19 and 24 above that the Accident caused mild back discomfort that contributed to the Incident followed by increase in back pain. 49.Dr Lam went on to say that with the Applicant’s symptoms/signs and the negative MRI findings, the Applicant should belong to diagnosis-related estimate (DRE) lumbar category II of the American Medical Association’s “Guide to the Evaluation of Permanent Impairment” 5th ed (“AMA Guide”) “which describes persons whose clinical history and examination findings are compatible with a specific injury … significant muscle guarding or spasm observed at the time of examination, asymmetric loss of range of motion… nonverifiable radicular complaints… no alteration of the structural integrity and no significant radiculopathy. His impairment is 5% of the whole person” (my emphasis). 50.In my view, the above objective findings (see paragraph 47 above) plainly showed there was improvement in the Applicant’s underlying condition by June/July 2006. Dr Lam accepted that by July 2006 (ie when he medically examined the Applicant) lumbar lordosis was preserved. He did not refer to any muscle spasm, and Dr Chan said there was none. In the absence of abnormal objective findings “at the time of examination”, I am of the view that the actual underlying condition of the Applicant’s back/leg was probably in a more satisfactory state than alleged. The surveillance evidence also suggested that the Applicant’s back pain was not as severe or long-lasting as claimed (see paragraphs 64-78 above). I am unable to accept the Applicant’s assertion of persistent, static and unmitigated diffuse back pain that radiated to and/or caused numbness of his right thigh throughout the period described in paragraph 37 above. 51.I agree with Dr Chan that the discrepancy between the limited supine and normal sitting SLR tests indicated exaggeration on the part of the Applicant. The normal sitting SLR test suggested there should not be actual underlying limitation, which immediately suggested that a non-organic element for the Applicant’s residual back pain was quite probable. There was also no explanation for the deterioration from “SLR : (R) (L) 60˚ ……” in the referral letter dated 9th May 2005 (see paragraph 27 above) to the supine SLR of 40˚ on the left side and 50˚ on the right side as observed by Dr Chan in June 2006 and the SLR of 45˚ on both sides as observed by Dr Lam in July 2006, especially when in the meantime (a) the Applicant received physiotherapy and occupational therapy treatment, and (b) allegedly did not work. 52.The Applicant also described painful symptoms in the simulation tests when in fact such tests should not cause painful complaints. Since the Applicant was tested positive in several categories, I agree with Dr Chan’s view that the Applicant had non-organic pain behaviour and exhibited symptom magnification, and that the clinical pattern of non-mechanical and pain-focused behaviour would explain the Applicant’s subjective complaints of stiff back, prolonged back pain, increase in pain with back movement, and failure to improve despite conservative treatment and physiotherapy and/or occupational therapy treatment for over 6 months. Dr Chan opined (and I accept) that the Applicant’s back condition was more due to the de-conditioning and tightness of the back and thigh muscles which developed with prolonged rest and immobolisation rather than a sign of organic cause of injury or radiculopathy. 53.In fact, both medical experts anticipated there should have been better or swifter recovery for soft tissue injury of the back. Dr Chan said the anticipated recovery time was approximately 4-6 months. The Applicant’s rehabilitation exceeded such anticipated period, but the subjective response to treatment was still unsatisfactory. Dr Lam also expected better recovery from patients with soft tissue injury only as evident from the following extracted from Dr Lam’s Report :
54.In light of the above, I disagree with Dr Lam’s DRE categorisation, and prefer the opinion of Dr Chan (who also relied on the AMA Guide) that the Applicant should be in category I of the DRE criteria, and that his whole person impairment for back injury should be about 2%. 55.Taking a combined view from inter alia :
the Applicant’s back condition by mid-2006 and/or by the time of the assessment hearing should have been satisfactory with at most mild underlying residue only. 56.In line with the above, I prefer Dr Chan’s opinion that the Applicant had reached maximum medical improvement and further improvement of his pain by further treatment was unlikely. 57.Dr Lam, on the other hand, opined that “in the absence of demonstrable structural damage, I believe that his back condition is not a static one yet”, and he advised another 3-6 months of conservative treatment. Mr So complained of lack of particulars by Dr Lam of the recommended “conservative treatment” to justify why such treatment would be therapeutically beneficial. Further, the Applicant claimed to be unaware of the recommendation in Dr Lam’s Report, and agreed he did not seek the further treatment as suggested. 58.In light of paragraphs 53 and 57 above, it appears that the basis for Dr Lam’s recommendation was that patients with only soft tissue injury and no demonstrable structural damage should have better recovery or prognosis, so it was suggested there might still be room for improvement. Yet Dr Lam’s Report did not discuss why the factors in paragraph 55(a)-(d) above did not facilitate or result in further improvement by July 2006. I prefer Dr Chan’s opinion set out in the paragraph 56 above. 59.I now turn to the Applicant’s post-Accident employment and the surveillance evidence. VIII. Applicant’s claimed subsequent employment 60.The Applicant claimed he did not return to work until he started working as a cashier of the Ali Baba Provision Store (“Store”) on 1st March 2007 at a monthly salary of HK$4,500.00 as shown in the employment letter dated 7th March 2007 and signed by a Mr Faisal Mia Mahmood on behalf of the Store. According to the business registration search records of the Store obtained by Mr Ma, the Store was owned by a Lee Sai Chun who shared the same residential address as Mr Faisal Mia Mahmood. 61.According to the employment letter, the Applicant was to work 6 days a week (except Sunday) from 11:00am to 10:00pm. He was entitled to 14 days’ annual leave, and bonus equivalent to 1 month’s salary payable according to performance and on completion of 12 months’ service. 62.Although the employment letter prescribed an increment in salary “Every January of Each Year From 2007 Subject to final decision from the Company”, the Applicant in his witness statement dated 3rd September 2007 claimed his salary had not been revised due to his poor performance, language barrier and inability to lift heavy objects. 63.I reject such contention. First, the Applicant gave evidence that as cashier of the Store he was not required to lift weights. Secondly, even on the Applicant’s own case, he joined the Store in March 2007, so his salary increment was not due until January 2008 in any event. Thirdly, the surveillance evidence discussed below showed he did not have any language or physical difficulty in acting as cashier/waiter for the Club (see paragraph 66 below) as early as in June 2005. IX. Surveillance evidence 64.Elite’s Mr Ma prepared the surveillance report (“Ma Report”) pursuant to the surveillance on and videotape recording (“VR”) of the Applicant on 24th, 28th and 29th June 2005. The timing of the surveillance is significant because the Applicant claimed that in June 2005 he attended the OP Clinic for treatment pending consultation at the OT Clinic and physiotherapy treatment by RTSKH’s OTD in July 2005 (see paragraph 29 above) and had such serious back pain that he could not work at all. 65.On 24th June 2005 (Friday), the VR recorded the Applicant leaving and returning to 南開大廈 in Wan Chai. The surveillance was called off due to red rainstorm waning. 66.On 28th June 2005 (Tuesday), the VR recorded the Applicant dressed in a reddish orange tee-shirt and light coloured trousers leaving南開大廈and walking through Burrows Street to Cross Lane. At 11:16am he entered a Pakistani shop adjacent to the Store and owned by the same proprietor known as Ali Baba Net Club (“Club”). Although Mr Ma kept the Applicant and/or the Club under surveillance until 2:00pm, he only made intermittent video recording so as to conserve the battery and to avoid passing/stopped vehicles that would have interfered with the recording. 67.The Applicant claimed (a) the VR showed that he walked slowly, (b) his doctor advised him to move about a bit so he went to the Club/Store to pass time with his friends, and (c) he was still in pain and could not work. However, the Applicant admitted under cross-examination that the VR on 28th June 2005 (and also on 29th June 2005) showed him moving his limbs freely as he walked. I also note that he walked in an easy and normal gait with no facial or body expressions that indicated he was in pain. He was able to negotiate up and down the step leading from the pavement to the Club and the two steps leading from the pavement to the Store without any difficulty. 68.I have no reason to doubt Mr Ma’s evidence that the reflection in the surface of a vehicle parked outside the Club of a man in reddish orange dress was that of the Applicant. In fact, the VR also captured the Applicant inside the Club (a) bending his body forward with his left leg slightly lifted (see the VR at 11:39:58am on 28th June 2005 and the lower photograph on p.61 of the assessment bundle), and (b) sitting hunched over at a table chatting with another man and then uncoiling easily to sit back (see the VR at 13:41:35pm to 13:41:58pm on 29th June 2005). Plainly, the Applicant was able to bend forward and change posture without difficulty, which raised real doubt as to his allegations of a painful and stiff back. In my view, the more objective evidence from the VR showed that the Applicant’s back condition was more satisfactory than alleged. 69.There was some debate as to whether the Club was a restaurant or internet club. The Ma Report claimed the Club was a small restaurant that served Pakistani food to mainly Pakistani customers. Mr Ma suspected the kitchen was behind a closed door to the far left of the Club, but agreed he could not and did not see what was behind the closed door. On the other hand, the Applicant claimed the Club was merely a computer internet club (see the Club’s business registration search records which described its business as “internet club, computer repairing”). The VR showed there was no computer on the table in front, but Mr Ma conceded he missed noticing a switched off computer at the far right corner of the Club so his impression of no computer inside the Club was erroneous. 70.In my view, the above debate is a red herring for the purpose of ascertaining whether the Applicant worked at the Club on 28th June 2005 by serving food to customers and/or acting as cashier in light of the Applicant’s admissions that (a) homemade food was brought to the Club, kept in the food display cabinet and sold/served to the customers for consumption at the premises or sold as takeaway, and (b) even he himself had his meals at the Club because it was cheap and he had no family in Hong Kong. 71.The Applicant claimed that on 28th June 2005 he went to the Club to have some food. The proprietor of the Club had a home emergency and asked him to wait for his return in 5-10 minutes. The Applicant admitted that during the proprietor’s absence, he helped out by tipping his own leftover food into the rubbish bin when he finished eating and by acting as cashier for about 30 minutes. He said there was an occasion when a customer only had a HK$50.00 banknote for paying a fee of HK$10.00 for using the computer, so he went to the adjacent Store to get some change. Although he was still at the Club by 2:00pm when the surveillance was called off, he claimed he was just keeping his friend from Pakistan (who wanted to work on the computer) company. 72.Mr Ma gave evidence that on 28th June 2005 he saw the Applicant (a) serving food/drink and cleaning up tables at the Club for about 10 times, and (b) acting as cashier at the Club for more than 10 times (including some takeaway purchases). The VR on that day captured the Applicant clearing the table and tipping leftover food into the rubbish bin on several occasions. On 1 occasion he did so after giving change of money to a leaving customer who had finished his meal. In the VR, he was also shown picking up a towel and/or mopping the table several times. In my view, the Applicant’s actions went further than having his own meal and cleaning up afterwards, and were more consistent with him acting as waiter/cashier at the Club. 73.The VR also caught the Applicant going to the Store several times. He was shown going to the Store on 1 occasion to get change of money and returning to the Club to give the change to a customer who then left. On another occasion the VR showed him walking to the Store with some money in his hand and picking up a yellow plastic bag of goods, a snack and some change of money. When he returned to the Club, he must have either put the snack/goods away or, which was more likely, given them to a customer. In the VR he was then observed to give some change to a customer who left after receiving the change. 74.The Applicant said Indian provision and/or drink/water could be purchased at the Store. He admitted in evidence that he did go to the Store several times, once to get some change of money for a customer, once to get drink/water, and he forgot the reasons for going to the Store on other occasions. In my view, it was obvious that the Applicant acted as cashier on 28th June 2005 for more than the 5-10 minutes or half an hour that the proprietor allegedly required him to hold the fort at the Club. I prefer and accept Mr Ma’s evidence that he saw the Applicant going into the Store and returning to the Club 3-5 times on that day to get some change of money or some goods for the customers at the Club, and this was part of his work as cashier of the Club. 75.On 29th June 2005 (Wednesday), Mr Ma and his colleague saw the Applicant coming out of the building at 10:21am and entering the Club at 10:25am. The Ma Report noted that inside the Club the Applicant served food and/or packed takeaway food for Pakistani customers, and that there were more takeaway sales that day. Mr Ma also gave evidence that he attempted to check out the Club that day. He was able to see about 90% of the Club (which premises were about 150sq ft) from the entrance, but could not see the area behind the closed door or behind the food display cabinet. Mr Ma tried to order some food, but was told they only served Pakistanis. He was further told on enquiry that the Club closed in the “late afternoon”. The surveillance was called off at 3:00pm when the Applicant was still inside the Club. 76.The Applicant claimed that on 29th June 2005 he packed takeaway food at the Club for himself and his friend to take home, but denied serving/packing food for customers. He agreed he did go to the Store, and explained that if one wanted to buy drink/water one had to purchase it from the Store and not at the Club. 77.In fact, the VR on 29th June 2005 showed the Applicant took food from the food display cabinet, served food to customer and/or packed them in yellow takeaway plastic bags, and received payment from and gave change to customers on several occasions. The Applicant also cleared a used cup from a table. There was no suggestion that the proprietor was again called away and/or again asked the Applicant to hold the fort for him at the Club that day. The Applicant was unable to give any satisfactory reason why he had to pack takeaway food to go for customers who gave money to him. I also find that going to the Store on 29th June 2005 was part of the Applicant’s work that day as cashier of the Club. In my view, the Applicant’s actions that day, which demonstrated his ease and familiarity with the work, could only be reasonably explained by his working at the Club as cashier/waiter. 78.In summary, the more objective evidence from the VR showed that the Applicant worked at the Club as waiter/cashier on 28th and 29th June 2005 even though he was shown at times to be chatting with people he apparently knew, reading the papers, and having a drink when there were no customers about that required his services. I reject the Applicant’s explanations which I find unreliable and unconvincing. At the very least, his actions of serving food, clearing the table, acting as cashier and packing takeaway food showed that, contrary to his assertions, he was capable of some work in June 2005 (ie long before 1st March 2007). This plainly showed that the Applicant had not been a credible historian, and his underlying back condition in June 2005 was better than he would have others believe. X. Appeal against Form 7 79.Both parties appealed against the assessments in Form 7, which specified the relevant injury as “(i) abdominal contusion resulting in residual pain over abdomen (ii) back injury resulting in L3/4 prolapsed intervetebral disc, pain, stiffness and degeneration”. 80.Such description of the Applicant’s injury is plainly erroneous. First, the Applicant made full recovery so there was no residue from the abdominal injury. Secondly, there is no evidence of any L3/4 prolapsed interveterbral disc. Thirdly, there is also no evidence of degeneration. Based on such erroneous premise, the assessment of loss of earning capacity of 8.5% in Form 7 is obviously excessive. 81.Dr Lam opined that with the Applicant’s then degree of pain in August 2006, he would have great difficulty in returning to almost all manual jobs, but if his back pain could after further treatment be reduced to a level generally expected from patients with soft tissue injury only, he could still return to manual jobs in construction sites. Even so, it would be desirable for the Applicant to have lighter manual jobs, and the residual pain might still affect his working performance and endurance. Dr Lam therefore assessed loss in earning capacity of 5% to 10% depending on the outcome of further treatment. But such opinion depended on the Applicant being a credible historian in relation to his back pain and ability to work, but from the above analysis he was shown to have been unreliable in these respects. 82.Mr Lam submitted that (for whatever reason) the Applicant did not receive further treatment, so it was unsurprising that he remained in great pain and could not return to his pre-Accident work. I am unable to subscribe to such argument. First, I have concluded that the Applicant’s underlying back condition was better than he would have others believe, and I have rejected Dr Lam’s opinion that further treatment was required. Secondly, even if further treatment were required and further even if the Applicant were aware of such recommendation, there was nothing to suggest that the recommended conservative treatment was so controversial that the Applicant would have declined the same. In such circumstances, I cannot see how the 1st and 2nd Respondents could be faulted for the Applicant’s failure to seek further conservative treatment and consequently for any lost opportunity of improvement. 83.I prefer Dr Chan’s opinion. Dr Chan fairly recognised that the Applicant had a physically demanding construction site job. He noted there was no structural damage to the Applicant’s spine, but the endurance and power of the back muscle was affected by the injury. Dr Chan opined that, depending on the Applicant’s motivation and effort, he would be able to return to his pre-Accident work after an initial 6-month period of lighter duties to help him ease back into his job by improving his muscle power/endurance. But if the Applicant elected to change his job, Dr Chan considered occupations such as restaurant waiter, delivery worker, driver and messenger were acceptable alternatives. On such basis, Dr Chan assessed loss of earning capacity at 2% in line with his impairment rating. In my view, Mr Lam’s submission that Dr Chan was unsure whether the Applicant could return to his pre-Accident job was an incorrect interpretation of Dr Chan’s opinion. 84.Mr Lam argued that the Applicant was handicapped in not being able to lift weight or work on the scaffold. In my view, the Applicant only had mild underlying residue as a result of soft tissue injury to the back, and thus he could have gradually eased back into his pre-Accident work (which included climbing the scaffold) by starting off with lighter duties to condition his back/thigh muscle. I find he would have been able to stay in the job although there might be some reduction in efficiency and in end range endurance on continued or prolonged manual activity or perhaps when working at height, but it should be within adaptable range given his back/leg condition as discussed above. I bear in mind that as early as in June 2005 the Applicant was able to bend forward and move his back without difficulty (see paragraphs 67-68 above), and the normal sitting SLR in June 2006 showed he had normal hip flexion (see paragraph 47(i) above). Dr Lam’s medical examination also revealed the Applicant had normal hip, knee and ankle movement. I have also found that the Applicant exaggerated his assertion of right thigh pain/numbness (see paragraphs 30-34 above). 85.As regards lifting heavy objects, the Applicant admitted that several workers would carry really heavy objects, and he did not have to lift or carry the drilling machine during operation. With no structural damage to his spine and a better underlying condition of his back than admitted, I am satisfied the Applicant would have been able to lift weight heavier than 2-3kg as alleged and to handle his labourer’s duties as required with slight reduction in efficiency/endurance. 86.Taking into account all the circumstances, I allow the appeal against Form 7 and assess loss of earning capacity at 3%. 87.As regards the period of sick leave, Form 7 assessed the sick leave period to be from 14th to 23rd March 2005, 27th March to 16th April 2005, and 5th May 2005 to 21st May 2006 (ie 413 days). Such sick leave period was in fact based on the medical certificates issued by PMH, RTSKH and the OP Clinic. Mr Lam submitted there was no reason to reduce the sick leave period since both Dr Lam and Dr Chan endorsed the same. 88.Although I have found that the Applicant had better actual underlying condition of his back in June 2005 than admitted and that he performed light work as cashier/waiter at the Club (with no evidence as to earnings for such work in 2005), I cannot ignore the reality that he had some genuine back pain in May 2005 as evidenced by reduction in lumbar lordosis and presence of muscle spasm. I am not satisfied he could have returned to work as scaffolder then. Both expert doctors considered the medical treatment, including the physiotherapy and occupational therapy treatment from July 2005 to February 2006, appropriate. I accept that such medical treatment was therapeutically beneficial. Given Dr Chan’s opinion (which I have accepted) that the Applicant should be able to gradually ease back into his pre-Accident work, I am satisfied that the assessment of sick leave period in Form 7 is appropriate. XI. Quantum 89.Since I have found that the Applicant could have returned to construction site work with gradual easing back to his pre-Accident work as scaffolder but with some eventual reduction in efficiency or in end range endurance, the Hong Kong Paper Mills formula as suggested by Mr Lam would not be applicable. 90.The section 9 award is HK$10,721.67 x 96 months x 3% = HK$30,878.41. 91.The section 10 award is HK$10,721.67 x 413/30 x 4/5 = HK$118,081.33. 92.The section 10A award was agreed at HK$1,046.00. 93.In the circumstances, employees’ compensation shall be assessed and awarded in favour of the Applicant against the 1st and 2nd Respondents in the sum of HK$150,005.74, and judgment be entered for the following sum of HK$61,005.74 together with interest thereon at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate until payment :
94.There is no reason why costs should not follow event. I grant a costs order nisi that costs of the assessment of compensation (and all costs reserved, if any) be paid by the 1st and 2nd Respondents to the Applicant to be taxed if not agreed. There shall be certificate for counsel and legal aid taxation of the Applicant’s own costs.
Representation: Mr Joseph Lam instructed by Messrs Fung & Fung for the Applicant. Mr Selwyn So instructed by Messrs Chik & Co for the 1st and 2ndRespondents. |
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