Mr. Amjad v. Wong Yui Cheong t/a Cheung Kee Transport Co

DCEC 1345/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1345 OF 2005

----------------------

----------------------

Coram  :  Her Honour Judge Mimmie Chan

Dates of hearing  :  21-23 April, 2008

Date of handing down Judgment  : 14 May, 2008

----------------------

J U D G M E N T

----------------------

Background

1.Mr. Amjad was employed by Mr. Wong as a driver for Mr. Wong's transportation company.  His work included loading and unloading goods as well as driving duties.  On 4 May 2005, Mr. Amjad loaded 70 to 80 cartons of goods (each weighing between 40 to 50 kgs) onto a truck belonging to his employer, and was in the course of transporting these goods for a customer to Kwun Tong when he met with an accident.  He was driving the truck along Ching Cheung Road on his way to Kwun Tong, when the vehicles in front slowed.  Mr. Amjad braked but was not able to stop his truck, which collided into the concrete barrier in the middle of the road. As the truck collided, Mr. Amjad's body was thrown up, and his head hit the roof of the truck before he fell back into the seat.  His left arm got stuck in the steering wheel of the truck.  As a result of the accident, Mr. Amjad claims that he sustained injury to his lower back, left arm and chest, and was hospitalized for 5 days. 

2.On 3 November 2006, judgment on liability was entered by consent.  The trial relates only to the quantum of damages payable to Mr. Amjad as a result of the accident, under sections 9, 10, and 10A of the Employees Compensation Ordinance.

The Injury

3.Mr. Amjad was sent to the Caritas Medical Center ("CMC") by ambulance on 4 May 2005.  Examinations there revealed tenderness in the left lower back, sternum and left forearm.  X-rays showed that there was no fracture of the back and left forearm, nor any bony lesion in the chest, sternum, left forearm, lumbar spine and pelvis. Analgesic and physiotherapy were prescribed, and Mr. Amjad was discharged on 9 May 2005.

4.According to the  MRI of the lumbar spine taken on 15 July 2006, there was sacralization at L5 level, with disc bulging from L2 to L5 levels.

5.The medical expert reports comprised a report by Dr. Wong See Hoi dated 3 August 2007, relating to Dr. Wong's medical examination of Mr. Amjad on 13 April 2007; and 3 reports of Professor Kumta respectively dated 9 January 2007, 14 February 2007 and 11 April 2008.  Dr. Wong correctly summarized the divergent views held by himself and Professor Kumta, as follows.

6.First, whereas Professor Kumta was of the opinion that Mr. Amjad had sustained injury to his left shoulder and his back as a result of the accident, Dr. Wong was of the opinion that Mr. Amjad had only sustained mild soft tissue injury to the lumbar spine.

7.Second, Professor Kumta was of the opinion that Mr. Amjad needs further and specific treatment for his discogenic pain, whereas Dr. Wong was of the opinion that Mr. Amjad's back had largely recovered when he stopped treatment in early December 2005, and that further treatment is not necessary.

8.Third, Professor Kumta considered that the multiple level disc bulging were caused by annular tears and were the consequence of the accident.  Dr. Wong disagreed, and as he could not find any annular tear on reviewing the MRI film scan, Dr. Wong was of the opinion that the multi-level disc bulging was natural wear and tear, and were likely to have existed long before the accident.  Dr. Wong also regarded Mr. Amjad's condition of sacralization at L5 level, which was a congenital feature, and the pre-existing multiple level disc bulging to be the cause of Mr. Amjad's current complaint of back pain.

9.Finally, whereas Professor Kumta was of the opinion that Mr. Amjad may not be able to return to work as a manual laborer, Dr. Wong was of the opinion that Mr. Amjad is able to resume his work as a driver and delivery worker.  Dr. Wong considered that despite the fact that Mr. Amjad may have mildly decreased efficiency in heavy lifting and carrying, he is nevertheless able to drive vehicles in full capacity.  Dr. Wong accepted that Mr. Amjad may experience back discomfort after prolonged heavy lifting, but this is due to his pre-existing condition of multiple level disk bulging and sacralization.

10.By the time of the trial, Mr. Wong ceased to have legal representation.  He could not afford to call Dr. Wong to attend the trial, and only Professor Kumta, Mr. Amjad's expert, gave oral evidence at the hearing.  At the trial, a videotape of surveillance commissioned by Mr. Wong was reviewed.  It showed Mr. Amjad going about his activities on 13 April 2007, 20 April 2007, 21 April 2007 and 23 April 2007.

11.The issues which arose for determination at trial are :

(1)   what were the injuries sustained by Mr. Amjad as a result of the accident;

(2)   whether Mr. Amjad can resume his work as a driver and delivery worker; and

(3)   the amount of compensation payable.

What were the injuries sustained by Mr. Amjad as a result of the accident?

12.The reason Dr. Wong gave for rejecting Mr. Amjad's complaint of left shoulder pain, as made at the assessment conducted by Dr. Wong on 13 April 2007, was that the reports made by the Accident and Emergency section ("A&E") and the Orthopedics and Traumatology Department ("O&T") of CMC had not contained any report of left shoulder pain or problem detected in Mr. Amjad during his period of hospitalization and treatment at CMC.  Dr. Wong was of the opinion that if the symptoms in Mr. Amjad's left shoulder were as severe as to limit half of Mr. Amjad's range of motion, as so reported in the physiotherapy report of CMC during Mr. Amjad's first visit for physiotherapy on 13 May 2005, Mr. Amjad would have reported it to the O&T department earlier. Dr. Wong considered that it was unusual for Mr. Amjad's left shoulder problem to have been undetected by the medical officers at the A&E and O&T departments of CMC.

13.During the hearing, Counsel for Mr. Amjad referred to the Progress Form and the notes made by the O&T Department of CMC.  The record made for 6 May 2005 at 2:05 p.m. actually shows an entry which read : "left shoulder and left wrist pain and tenderness over left forearm". I accept that this casts doubt on the basis of Dr. Wong's conclusion with regard to Mr. Amjad's left shoulder pain being unsupported by any record in the A&E and O&T reports of CMC, and such left shoulder pain only occurring a long time after the accident. 

14.I accept that Mr. Amjad sustained injury to his left shoulder as a result of the accident.  However, according to CMC's Progress Form, by 7 May 2005, Mr. Amjad was only complaining of mild pain over the the left hand and shoulder.  Even on Professor Kumta's report, both Mr. Amjad's shoulder contours were reported to be normal by 4 December 2006, there was no wasting of muscles around the shoulder, and only "some shoulder movements were restricted" when compared to the right shoulder.  In all, I do not consider that Mr. Amjad suffered very serious injury in the shoulder, and consider that such injury had substantially improved by the time of Professor Kumta's examination on 4 December 2006.

15.Dr. Wong's assessment of Mr. Amjad's back only showed that there were subjective signs of localized tenderness and stiffness of the back.  According to Dr. Wong, there was no objective symptom like muscle wasting of the lower limbs or loss of jerks indicating lower limb neurological involvement in support of Mr. Amjad's demonstrated disability.  According to Dr. Wong, because Mr. Amjad showed positive results in simulation tests and because there was a significant discrepancy in the results of his straight leg raising test in the lying position and sitting position, Dr. Wong was of the opinion that Mr. Amjad had magnified his pain symptoms.  He also referred to inconsistent signs when Mr. Amjad attended a follow-up treatment at CMC on 14 October 2005, when he was observed to walk with more severe limping upon request but had walked unaided with less limping when he walked into the office.  Dr. Wong remarked that this was similar to what he had observed at the examination on 13 April 2007.  Dr. Wong accordingly concluded that Mr. Amjad only sustained mild soft tissue back injury and suffered 1% impairment of the whole person as a result of his possible back pain.

16.Professor Kumta pointed out that the x-ray of Mr. Amjad's lumbar spine showed reduced lordosis (as observed in Dr. Wong's report), and in Professor Kumta's opinion, this is already an objective symptom consistent with pain in the lower back.  Professor Kumta disagreed that discrepancies between the straight leg raising test results in the lying and sitting postures are symptoms of malingering.  In his opinion, in the sitting posture, the angle of bend is always larger than that when a person is lying down.

17.According to Professor Kumta, the MRI of Mr. Amjad's lumbar spine showed disc bulging, most significantly in the L4 and L5 disks.  He considered that they were caused by annular tears or intra-discal tears of the annulus.  Dr. Wong disagreed that the bulging were so caused or were otherwise resulting from the accident, and pointed out that he could not find any annular tear from the MRI film.  Dr. Wong considered that the disc bulging was the result of natural wear and tear, as disc bulging was detected over the whole spine, including the cervical and lumbar spine, and concluded that they were likely to have existed long before the accident.  Professor Kumta disagreed that the disc bulging could be normal wear and tear.  He pointed out that Mr. Amjad had no prior history or symptom of back pain, and from the MRI, there were no signs of degenerative changes in the discs elsewhere.  Professor Kumta accordingly maintained that the extent of the disc bulging as seen from the MRI is evidence that they were caused by the accident.  He further considered that the injury in question sustained by Mr. Amjad can accelerate and aggravate any pre-existing wear and tear or degeneration of the spine.

18.Both Dr. Wong and Professor Kumta were shown the surveillance video on Mr. Amjad.  Dr. Wong concluded from the surveillance videotape that the general condition of Mr. Amjad in April 2007 was normal and satisfactory, as he was observed by Dr. Wong to be walking normally, going up stairs, taking public transport and carrying a bag of fruit without difficulty.  Dr. Wong considered that Mr. Amjad was carrying out his daily activities independently and normally.

19.On reviewing the surveillance tape, Professor Kumta observed that Mr. Amjad walked with a list to the right and a slight limp, at times with inclination of his body towards the right side.  According to Professor Kumta, the signs are consistent with Mr. Amjad experiencing pain in the spine.  Professor Kumta therefore maintained the view that Mr. Amjad would benefit from further and future treatment, if the pain persists and continues to bother him.  Counsel for Mr. Amjad also submits that the video demonstrates that Mr. Amjad was still suffering from chronic low back pain 2 years after the accident.  The surveillance video shows Mr. Amjad going to CMC on 23 April 2005, and on Mr. Amjad's evidence, he had gone there for an injection to treat the pain he was experiencing in his back.

20.Having considered the medical evidence including the reports of Dr. Wong and Professor Kumta, the evidence of Mr. Amjad and Professor Kumta, and observing Mr. Amjad in court and as recorded on the surveillance video tape, I am satisfied that Mr. Amjad sustained injury to his left shoulder and lower back as a result of the accident.  I recognize that injuries to the spine and lower back are difficult to be fully healed.  As apparent from the surveillance, although Mr. Amjad could generally go about most of his daily activities in 2007, he was observed to be walking on 13 April 2007 with slight emphasis on his right foot, and on 23 April 2007 after a night shift at work, this listing to the right was more obvious in his walk.  It can be envisaged that there might be times and days when he may experience greater pain than others, particularly, on his evidence, after walking fast or walking over 20 minutes, and after heavy lifting.  Having heard Professor Kumta's evidence in court, and in the absence of Dr. Wong, I consider that it would be unsafe in the light of all the evidence to accept Dr. Wong's opinion that Mr. Amjad had magnified his symptoms, and that the pain in his back is the result of natural wear and tear and unrelated to the accident.

Whether Mr. Amjad can resume his work as a driver and delivery worker

21.It is not in dispute that prior to the accident, Mr. Amjad's work involved lifting of goods in the process of loading and unloading them for transportation.  From Professor Kumta's evidence, although Mr. Amjad can return to work as a driver, he is likely to develop further disc degeneration if he continues to engage in work which demands heavy load lifting.  According to Professor Kumta, Mr. Amjad should not lift objects weighing more than 10 or 20 kgs.  Dr. Wong also accepts that Mr. Amjad may experience back discomfort after prolonged heavy lifting due to his pre-existing back condition, i.e. multiple level disc bulging and sacralization.  Dr. Wong claims that Mr. Amjad's back pain as caused by the accident had substantially subsided by early December 2005, but the evidence shows that he had continued to receive treatment thereafter and Mr. Amjad's sick leave continued in June 2006, and from July 2006 to November 2006.  It would appear from all the evidence that Dr. Wong may have understated the extent and effect of Mr. Amjad's injuries.

22.On the evidence, I accept that it is more likely than not that Mr. Amjad would not be able to resume the work which he did before the accident, which involved heavy and/or constant lifting in the course of loading and unloading in his employer’s transportation business.

The amount of compensation payable

Section 9

23.According to the Certificate of Review of Assessment issued by the Employees' Compensation (Ordinary Assessment) Board dated 21 December 2006, Mr. Amjad was assessed to have suffered 3% permanent loss of earning capacity.  Both Mr. Amjad and Mr. Wong appeal against this assessment.

24.Counsel for Mr. Amjad claims that compensation for Mr. Amjad's permanent partial incapacity resulting from the injury should be assessed under s.9(1A) of the Ordinance.  It is claimed that the special circumstances are that Mr. Amjad's injuries resulting from the accident prevent him from returning to work which involves repetitive heavy manual lifting, but Mr. Amjad left school at the age of eight years, has no qualifications save for a driving license, and has no previous training except in basic manual handling of goods.  He is a Pakistani national with limited skills in the English and Chinese languages.  In view of his limited experience and skills, it is argued that he has a limited choice of jobs in the future, and hence, the formula in Hong Kong Paper Mills Ltd. v. Chan Hin Wu, CACV 45 of 1981, as applied in Lau Man Keung v. Yiu Wing Construction Co. Ltd, CACV 2232 of 2001 should be adopted for calculating the compensation payable. 

25.As I accept that Mr. Amjad would not be able, by virtue of his injuries sustained as a result of the accident, to return to his job before the accident, I accept that there are only a very limited number of jobs which would be available to him in Hong Kong which does not require Chinese language skills and heavy and manual lifting.  I am therefore prepared to assess the compensation payable under s. 9(1A), using the Hong Kong Paper Mills Limited formula.

26.It is not in dispute that just before the accident, Mr. Amjad was paid a monthly salary of $10,000.  He was entitled to an annual Chinese New Year bonus equivalent to one month's salary.  I accept that for the month immediately preceding the date of the accident, Mr. Amjad was earning $10,833 a month.

27.According to the evidence adduced on behalf of Mr. Amjad, I accept the average monthly salary of a driver to be about $7,500, for someone with the skills and qualifications of Mr. Amjad.  His current job as a security guard pays $7,380 on the assumption that he works 30 days a month.

28.Adopting the Hong Kong Paper Mills Ltd. formula, as applied in the Lau Man Keung case, the compensation payable to Mr. Amjad is :

[($10,833 - $7,500)/$10,833] x  96 x $10,833 = $319,968

Section 10

29.The Certificate of Review of Assessment certifies 3 periods of absence from duty as being necessary as a result of the injury sustained by Mr. Amjad : 4 May 2005 to 1 December 2005; 28 June 2006 to 29 June 2006; and 28 July 2006 to 9 November 2006.  I am not prepared to extend this by a further period of 1 month 22 days, on the basis only that Mr. Amjad was not able to find work until 24 January 2006.  There is insufficient evidence as to why Mr. Amjad was not able to commence work until 24 January 2006 for me to find that the additional period of absence was necessary as a result of Mr. Amjad's incapacity. 

30.Counsel for Mr. Amjad accepts that during the period of sick leave and temporary incapacity, Mr. Amjad worked as a security guard for some time.  He accepts that there is a period of 8 days or 0.26 months of partial temporary incapacity when he received salary of an average of $7,000 per month.

31.The compensation payable under section 10, for total temporary incapacity of a period of 10.17 months, is: 10.17 x $10,833 x 4/5 =  $88,137.  For partial temporary incapacity of a period of 0.26 months, the compensation payable is :  0.26 x ($10,833 - $7,000) x 4/5 = $797.  The total compensation payable under section 10 is $88,934.

Section 10A

32.I allow Mr. Amjad's claim for medical expenses, in the total sum of $3,440 sought.

Conclusion

33.Mr. Amjad’s appeal against the Notice of Review of Assessment is allowed.  The total compensation payable to Mr. Amjad is:

(1)  compensation for permanent partial incapacity	$319,968
(2)  compensation for temporary incapacity	$  88,934
(3)  medical expenses	$    3,440
	$412,342
Less Paid :	$64,970
Total :	$347,372

34.Mr. Amjad is entitled to interest on the sum of $347,372 at half judgment rate from the date of the accident, i.e. 4 May 2005, to the date of judgment, and to the costs of the action with certificate for Counsel, to be taxed if not agreed.  Mr. Amjad's own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr. John Wright, instructed by Burke & Co. for the Applicant

The Respondent in person