Kan Wai Ming v. Hong Kong Airport Services Ltd

DCEC 1012/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1012 OF 2009

____________

IN THE MATTER OF AN APPLICATION BETWEEN

Coram: His Hon Judge Leung in court

Date of hearing: 22; 25 June 2010

Date of judgment: 8 October 2010

ASSESSMENT OF COMPENSATION

1.Kan, the Applicant, was injured during work as an aircraft loading agent of HKAS, the Respondent, on 20 June 2008. On that day, Kan was working at the Hong Kong International Airport. In the course of descending the step of an airport baggage loader vehicle, he lost his balance and fell onto the ground. As a result, he sustained injuries. Kan claims compensation pursuant to the Employees’ Compensation Ordinance, Cap.282. HKAS admitted liability and judgment for compensation to be assessed was entered on 15 October 2009.

2.The major dispute between the parties lies in: (1) the loss of earning capacity; and (2) the sick leave period.  Kan is claiming 3% permanent loss of earning capacity whereas HKSA argues that it should be nil.  Kan has obtained sick leave in excess of 600 days whereas HKSA argues that sick leave of only 4 weeks or alternatively, until early June 2009 ought to be compensated for.

History of treatments

From the accident to November 2008

3.After the accident, Kan attended the airport medical centre.  X-ray was taken.  Laceration was found on the right elbow which was sutured.

4.Later on the same day, he complained about pain and was sent by ambulance to the Accident and Emergency (A&E) Department of the Princess Margaret Hospital (“PMH”). X-ray was taken again.  Examination showed that his right elbow decreased in flexion but the shoulder movement was normal.  He was given a long arm back slab and painkillers and discharged.  The cast was removed during follow up 6 days later.

5.In July 2008, he started to complain about right wrist pain as well.

6.During this period when he was under the care of the A&E Department of PMH, Kan attended 11 physiotherapy sessions.  He attended the Occupational Therapy Department which provided him with a wrist resting splint and mobilisation training.  His case was closed in October 2008.

7.Kan also received 8 sessions of physiotherapy at Prime Rehabilitation Services.  The physiotherapist recorded that there was no sign of neurological deficit.  In court, Kan disagreed with such finding and accused the physiotherapist of having maltreated him.

8.Meanwhile Kan also attended Dr Baldwin Chan, an orthopaedist.  Dr Chan found right elbow laceration and right wrist contusion.  The doctor diagnosed the case as a soft tissue injury with no bony injury or abnormality.  The doctor also recorded that Kan continued to attend the hospital for sick leave.  Kan disputed such record and suggested that that was mere speculation on the part of Dr Chan.

9.The follow up at the A&E Department of the PMH ended in November 2008.

From December 2008 to June 2009

10.The sick leave given by the A&E Department of the PMH expired on 1 December 2008.  On the same day, Kan attended the Orthopaedic Clinic of the same hospital upon the referral by the A&E Department.  Examination at the Orthopaedic Clinic showed that his right shoulder and right elbow had full range of movement and was non-tender. There was a slight decrease in flexion and extension in the right wrist, which was diagnosed as sprain.

11.Kan was again referred to the Occupational Therapy Department of the PMH.  Work evaluation was done. Kan had 3 sessions of work hardening programme.  On that day, physical examination showed that Kan’s right elbow was non-tender and the active range of motion was full.  The right wrist had no swelling or local tenderness and its active range of motion was also full, except for pain at the end range of flexion.  His case there was closed again on 23 February 2009.

12.On the same day, the orthopaedist saw fit to refer Kan to the Employees’ Compensation Medical Assessment Board (“MAB”) for an assessment to be held on 9 June 2009.  His sick leave was also given up to that date.  Mr Lam submitted that the orthopaedist must have come to the view that Kan’s condition had become static for MAB assessment.  This, I think, is a fair inference.

9 June 2009

13.No assessment by the MAB was carried out on 9 June 2009.  According to the standard form notice from the MAB, another date for assessment would be fixed depending on Kan’s recovery and other circumstances.

14.According to Kan, he complained to the doctors on the MAB about pain and suggested that he needed further treatment.  The doctors agreed and decided to defer the assessment.

15.However, the record during a subsequent consultation at the Orthopaedic Clinic of the PMH in July 2009 recorded that the MAB did not proceed with the assessment because of Kan’s refusal.  What that exactly means is subject to interpretation.  However, similar remarks could be found in the summary of Kan’s consultation at the Family Medicine Clinic of Our Lady of Maryknoll Hospital in as late as October 2009.

16.The summaries of the General Practice Clinic of Yan Chai Hospital (“YCH”) during his consultations on 18 July 2009 recorded another version.  The MAB assessment on 9 June 2009 was postponed because Kan wanted to attend further treatment, e.g., acupuncture.  There was also record of his complaint that no MRI scan had been carried out on him.

17.Kan indeed attended the Chinese Medicine Clinic of Yan Chai Hospital on 10 June 2009, i.e., right after the scheduled MAB assessment.  But the record shows that that was the only attendance there.  Kan admitted that in court.  He explained that he could not afford the acupuncture treatment; but at the same time complained about the bad experience during the acupuncture.

18.In court, Kan suggested that had the doctors insisted on proceeding with the assessment on that day, he would have had no choice but to comply.  In my view, the issue is not whether the doctors are responsible for not insisting, but whether they acceded to the request to postpone the assessment as a result of the condition and need for further treatment projected by Kan.

From June to the end of July 2009

19.Upon the expiry of the sick leave on 9 June 2009, Kan began to attend the General Practice Clinic of YCH on 10 June 2009.  As mentioned above, Kan also attended the Chinese Medicine Clinic of the same hospital on the same day.  Since then, he had attended that general clinic every 4 to 5 days.  He confirmed in court that those were not follow up consultations scheduled by the hospital.  He made the appointments.

20.The consultation summaries of YCH during this period invariably recorded that Kan “ask for SL longer as financial problem”.  Kan denied that he did that; and attributed the record to possible misunderstanding.  It was also suggested that the computer record of this remark was repeated whenever the summary was updated during each consultation.

21.Considering the summaries, I am prepared to accept that they contain some identical recital of the previous records probably stored in the computer.  But I do not accept that this is a complete answer.  It can be seen that the treating doctors did make up-to-date entries during each consultation.  For instance:

(1) On 15 June 2009, it was recorded that Kan planned to finish his follow up at the PMH first before the MAB assessment.  Kan also asked for sick leave to enable him to receive acupuncture.

(2) On 23 June 2009, the doctor recorded that Kan came for extension of sick leave.  He reported not much improvement after acupuncture.  He claimed to want to try more alternatively therapies.  The doctor explained to him that his elbow and wrist pain might be persistent; and the MAB was to assess the extent of such limitation or disability.

(3) On 27 June 2009, it was recorded that Kan’s follow up at PMH was scheduled on 22 July 2009.

(4) On 2 July 2009, it was recorded that Kan would attend an acupuncture session.

(5) On 6/7/2009, it was recorded that Kan still complained about elbow pain especially when trying to lift heavy objects.  He was said to be still receiving acupuncture.  He was said to be requesting for sick leave.

(6) On 18 July 2009, it was recorded that the doctor advised Kan that his injury was one year old; and the physiotherapist and occupational therapist considered that his pain was static.  The doctor advised him that it was highly unlikely that his situation would improve much.  The doctor also explained to him that in that case, the sick leave might be terminated.

22.The chance of all the doctors involved having made mistakes or misunderstood Kan is on the balance of probabilities minimal.  While disagreeing with the records in these summaries, Kan’s evidence in court of what were said on those occasions was far from clear and convincing.

23.The records evidence that the requests for the extension of sick leave came from Kan.  Further, almost every time when he attended a clinic, it happened to be the day when the sick leave last given was expiring or had just expired.  I do not accept that this was mere coincidence.

24.The records also evidence that it was Kan who requested to postpone the MAB assessment, though the MAB also acceded to the request.  As mentioned above, the reference to the need for attending acupuncture treatment could not be a genuine reason.  Kan admitted in court that he had in fact received such treatment once and the experience was poor.  He also could not afford the treatment, despite the fact that he had been receiving periodical payments from HKAS.

25.The medical certificate issued by the PMH during the last follow up on 22 July 2009 recorded that the hospital gave Kan no further sick leave.  He was apparently considered to be fit to resume work, though he was advised to avoid heavy duty for 16 weeks. The doctors also saw fit to refer him to MAB assessment on 13 October 2009.

From the end of July to early September 2009

26.On 30 July 2009, Kan started to attend the Lady Trench General Outpatient Clinic (“LTC”).  He complained about right wrist and elbow pain after resumption of work during 23 and 29 July 2009.

27.On 3 August 2009, Kan attended the YCH.  The consultation summary of that day recorded that Kan also complained about inability to cope with his job during 23 and 29 July 2009.  The reason was that he had pain when carrying heavy load.  But as mentioned above, the PMH had already advised that he should avoid heavy tasks for 4 months.  Kan then asked for voltaren cream and extension of sick leave.  In court, Kan admitted that he asked for the cream but denied asking for extension of sick leave.  If he is believed in, the doctor’s record would be partly right and partly wrong.

28.Until early September 2009, Kan had attended LTC and YCH several times.  He confirmed in court that those were not scheduled follow up but he made the appointments upon the expiry of the few days of sick leave previously given.

29.Kan’s last attendance at YCH was on 4 September 2009 when he was given sick leave up to 7 September 2009.  He explained that he moved from Tsuen Wan to Choi Hung and started to attend other clinics.

From early September 2009 onwards

30.These other clinics that Kan had attended were Cheung Sha Wan Jockey Club GOPC, Robert Black GOPC, the Department of Family Medicine of Our Lady of Maryknoll Hospital and OLMH East Kowloon GOPC.  It was during this period when the doctors formed the impression that Kan had adjustment disorder with depressive mood.

31.Kan confirmed that these consultations were also not scheduled follow up.  As always, he made appointments when the sick leave previously given was expiring or had just expired.  In the consultation summary of Cheung Sha Wan Jockey Club general clinic on 3 November 2009, it was recorded that Kan “attended several GOPC for SL (RB, EK, OLMH, LT, YCH, CSW)”.  Kan suggested that the doctor might have seen the computer record and misunderstood him.

32.It was also suggested that he had no idea about what the doctor jotted down and he was never asked to confirm the accuracy of the record after the brief consultation.  I would be surprised if the doctors would ever seek the patients’ confirmation of their records.  But before the court are the records of more than one doctor over a period of time.

33.On 19 March 2010, OLMH East Kowloon general clinic certified that Kan’s progress was static and advised him to resume work, starting with light duties in the first 2 weeks. Only 1 day of sick leave was given.

34.Since then, no hospital or clinic has given any further sick leave to Kan.  The fact was that he has not resumed work at all.

Medical expert evidence

35.At about the same time, on 18 March 2010, the joint orthopaedic expert report in the present case was issued pursuant to the direction of the court.  Dr Fu Wai Kee was engaged on behalf of Kan and Dr Chun Siu Yeung was engaged on behalf of HKSA.  They jointly examined Kan on 8 February 2010.  Dr Chun had issued a previous report in August 2009.

36.Referring to the medical records and reports of various hospitals and clinics, the experts noticed the pattern of Kan’s requests for extension of sick leave.  Referring to the medical notes of the treating doctors, the expert also noticed records of Kan’s complaint about financial stress in late 2009.

37.During the joint examination, Kan complained about spontaneous nocturnal waking up 3 times per 2 months due to pain.  The grade of intensity was said to be 10 out of 10, i.e., extreme unbearable pain.  His answers were said to very evasive and inconsistent in describing his pain.  This was the joint observation of the experts.

38.Kan also complained of no mood, no sex activity and deterioration of eye sight, which, in Dr Chun’s opinion, were certainly unrelated to the accident.  There was no muscle wasting of the right upper limb.  Range of motions of all joints on the right upper limb was normal.  X-ray examination was normal.  The symptoms presented by Kan, in Dr Chun’s view, were not consistent with the initial mild injury or the objective physical findings.

39.The experts had the chance of viewing the surveillance video taken of Kan on 3 days in July 2009 and one day in early January 2010.  Among other things, Kan was observed to be playing at the billiard parlour on 14 July 2009.  According to the consultation summaries, Kan actually attended the YCH that very morning.

40.Dr Chun observed from the video recording that the right shoulder, elbow, wrist and hand movements as well as actions were natural and smooth.  There was no expression or exhibit to indicate at any moment that he had pain in the right upper limb.  I have the same observation after viewing the video recording in court.

41.Dr Fu shared the same observation that the range of the right upper limb movement of Kan was normal. However the doctor considered that this was consistent with the findings in the medical reports.  The doctor also stressed that all along the range of movement of Kan’s upper limb joints were documented to be normal; and Kan complained about pain only when lifting heavy weight and the pain was intermittent.

42.Dr Fu’s recollection was not entirely accurate.  In the consultation summary of YCH in mid-2009, it was recorded that Kan complained that there was “still elbow pain even at rest”.  Further, on 22 July 2009, the PMH certified that Kan was fit to resume work, only that he should avoid heavy physical duties for 4 months.  In the video, he was seen in the same afternoon, carrying 2 packs of drinks of 6 bottles each and walking with no noticeable difficulty.  Though the load of the drinks might not weigh tens of pounds, one would have expected him to avoid carrying weight by his injured hand.  It is interesting to note that Kan was then carrying things in both hands; and he chose to carry the obviously heavier packs of drinks by his right hand.  He also did not change hands.

43.Dr Chun confirmed the diagnosis of laceration of the right elbow and minor contusion of the right shoulder with no abnormality.  The laceration was sutured and there was no bony injury.  He opined that the symptoms demonstrated by Kan subsequently were unrelated to the injury but were expansion and exaggeration, most probably for the sake of compensation.

44.Dr Fu agreed that the chronic nature of pain was difficult to explain on anatomical ground.  However, he opined that most likely it was related to Kan’s adjustment disorder or depressive disorder; and advised that the psychiatrist’s input was necessary.

45.Regarding psychiatric diagnosis, the medical record of Kan’s attendance at the A&E of Caritas Medical Centre in early September 2009 did record the clinical diagnosis of “adjustment reaction with anxiety features, reactive to physical discomfort, finance stress and interpersonal relationship problem with his mother”.  Kan was also referred to the East Kowloon Psychiatric Out-patient Clinic.  He was found to have depression.  But no sick leave was given.

46.From what can be observed from the surveillance video recording in 2009 and throughout the proceedings in court now, I must say that any suggestion of depressive mood, anxiety and physical discomfort is far from apparent.  The fact is that there is no psychiatric expert evidence (that Dr Fu wanted to resort to) in support of a psychiatric explanation of what could not be explained on anatomical grounds.

47.Dr Chun opines that Kan is independent in his activities of daily living.  Kan is able to return to his pre-accident work including loading and unloading.  He is able to continue his sporting activities without limitation or restriction, which would actually be beneficial to his health.  The permanent impairment and disability is minimal. There is no loss of earning capacity.

48.Dr Fu opines that from the orthopaedic perspective, Kan should be able to resume his pre-accident work with reduced efficiency due to pain.  Kan would have difficulty in heavy manual lifting and long period of driving. Whilst Dr Fu agrees that Kan is independent in his activities of daily living, he opines that Kan suffers 3% impairment of the whole person and the same degree of loss of earning capacity.

49.First, the basis for Dr Fu’s opinion as to existence of positive loss of earning capacity in Kan is influenced by his belief that psychiatric condition is in play.  His opinion was expressed without the support of psychiatric assessment that he considered to be necessary.  In view of this court’s observation about the materiality of Kan’s depressive condition, if any, the basis for Dr Fu’s such opinion on Kan’s loss of earning capacity is flimsy.

50.Second, due to the repeated postponement, the MAB did not have the chance to examine Kan and to assess his condition.  Mr Lam submitted that whilst the medical experts may express their opinion on the condition and ability of Kan in managing activities of his daily living and work, they are not expected to give evidence as to the percentage of loss of earning capacity.  Such evidence is inadmissible.  Mr Lam relied on Kam Wai Yip v Everbest Port Services Ltd, DCEC 383/2008 (3 February 2009) (at paras.40-46), which again adopted the Court of Appeal’s comment in Tang Shau Tsan v Wealthy Construction Company Limited, CACV 58/2000 (5 April 2000) (at paras.11-12).  I agree.  As I indicated during the hearing, this is ultimately a question of fact to be determined on the evidence as a whole.

51.Third, despite medical opinion, and except for a week in July 2009, Kan has not been working since the accident.  In court, Kan somehow explained that he had no idea what he was capable of doing.  He also somehow referred to his inability to work as an electrician and the danger in carrying out such work in his present condition. Therefore he needed to continue treatment and the doctors allowed him to do so. Work as an electrician was not Kan’s pre-accident job and there is no basis to assess his capacity to resume work by reference to that.  In his submission, Mr Ho accepted that.

52.Last, Kan underwent a functional capacity evaluation at the Occupational Therapy Department of the Queen Elizabeth Hospital on 23 March 2010, i.e., less than one week after the joint expert report.  The record of the evaluation was that Kan is afraid of pain.  It also recorded that “Pt avoids heavy works that elicit his pain.  He is currently unable to perform the job demand he claimed.  He focuses on complain about the residual pain and the psychosocial impact of the injury.  Pt may need to consider changing job”.

53.The common feature in both the joint examination by the experts and the evaluation one week later was Kan’s repeated subjective complaint.  But the conclusion of the evaluation differs from that of the experts.

54.There is clear evidence of a pattern of exaggeration and expansion of symptoms on the part of Kan with the expectation that HKSA would have to compensate him.  Considering all the evidence, including those discussed above, and seeing Kan give evidence, I am not impressed by him at all.  Mr Lam categorised Kan as evasive, argumentative and pre-occupied with why questions were put to him in court.  I share the observation and have grave doubt about the reliability of Kan.

55.I prefer Dr Chun’s opinion to that of Dr Fu.  Whilst expressing the opinion that there should be no loss of earning capacity, Dr Chun did not absolutely rule out the existence of minimal permanent disability.  I am prepared to accept that possibility and its effect on Kan’s capacity to carry out his pre-accident job.  For the purpose of assessment of compensation, this will be 0.5%.

Section 9

56.The parties agreed during the hearing that the pre-accident monthly income of Kan was HK$9,789.47. Compensation under this section is HK$9,789.47 x 72 x 0.5% = HK$3,524.21.

Section 10

57.Dr Chun opined that the minor trauma suffered by Kan should entail sick leave lasting for less than 4 weeks.  Dr Fu opined that the sick leave granted to Kan was “still appropriate” because he received courses of treatment in different specialties during the period.

58.As mentioned above, the sick leave given by the orthopaedic clinic of the PMH to Kan was supposed to expire in June 2009.  It was then when Kan proceeded to consult various general clinics.  Save for several physiotherapy sessions, Kan was given painkilling ointment and tablets most of the time until this year.

59.Mr Ho pointed out that Kan has in fact requested for MAB assessment and shorter sick leave; only that the doctor did not accede to the request.  Mr Ho referred to the consultation summary of the East Kowloon general clinic dated 19 December 2009.  On that occasion, Kan was said to have complained about a lot of appointments to attend to.  However, the fact was that prior to that day, it was Kan who made the appointments to attend those general clinics whenever the sick leave last given was expiring.

60.Upon the expiry of his sick leave on 12 December 2009, Kan attended the Robert Black general clinic on 13 December 2009.  On that occasion, according to the consultation summary, Kan still indicated that he only planned to accept MAB assessment after his physiotherapy finished.  Upon the expiry of the sick leave given on that occasion, Kan attended East Kowloon general clinic again on 16 December 2009.  The consultation summary on that occasion recorded the same stance of Kan as to when he planned to attend the MAB assessment.  Upon the expiry of the sick leave on 18 December 2009, Kan attended the clinic again.  Only then did Kan somehow complain about a lot of appointments and request for MAB assessment and shorter sick leave.

61.Nevertheless, section 10(2) of the Ordinance provides that “a period of absence from duty certified to be necessary by a registered medical practitioner …… shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”  Is Kan therefore entitled to compensation in respect of the period covered by the sick leave in any event?

62.Mr Lam referred to Yu Tat Kam v Chu Tung Shing & Anor, CACV 25/2008 (8 October 2009) which explains (at paras.23-26) the effect of the provision:

(1) Section 10(2) enables the employees to make a claim for compensation without having to prove that during the certified period, the incapacity incapacitates the employee for any employment which he was capable of undertaking at the time of the accident.

(2) However the section does not mean that the court is bound to award compensation at 4/5 of the employee’s pre-accident earnings during the certified period.  Section 10(1) contemplates that even for total temporary incapacity, the compensation would be reduced by earnings that the employee was earning or was capable of earning in some suitable employment during that period.

(3) The burden is on the employer to prove that circumstances existed for such reduction in compensation.

63.The question to be asked in the present case is: whether HKAS has discharged the burden of proving that notwithstanding the sick leave, the compensation payable for such period should be reduced by earnings that Kan was capable of earning in some suitable employment during that period.

64.The court of appeal in Yu Tat Kam noted (at para.27) that it would only be in rare circumstances where an employer can prove potential earnings where total incapacity has been certified.  The reasons are (1) it is not only physical disability, but possibly discomfort or pain, that incapacitates an employee from working; and (2) an employee is expected only to undertake employment which is suitable for him.

65.As to reason (1) above, Mr Lam submitted that there is compelling evidence of hospital shopping by Kan driven by the desire to continue the sick leave.  Kan turned to various general non-specialist clinics when the orthopaedic clinic of PMH stopped giving any further sick leave.  Whilst one would understand that the treating doctors might have relied on, and apparently accepted, Kan’s subjective complaint about discomfort and pain and inability to work, the objective medical evidence and expert opinion, which I prefer, show that the repeated complaint of discomfort and pain was not genuine.

66.As to reason (2) above, the appellate court in Yu Tat Kam had in mind some suitable employment other than precisely the pre-accident job.  By saying that the employee was capable of resuming his pre-accident job at a certain stage during the certified period of temporary incapacity, one would effectively be contradicting the certification of the temporary incapacity.  I think Mr Lam did intend his submission to have such effect.

67.Mr Lam stressed that to allow Kan to rely on section 10(2) is tantamount to closing the eye to abuse irrespective of whether he was in fact capable of resuming his pre-accident work. Mr Lam submitted that the burden to establish that Kan was capable of resuming his pre-accident work during part of the period covered by the sick leave has been discharged.

68.In the circumstances of this case, I am convinced by Mr Lam.  I take 355 days as submitted by Mr Lam to be the period of genuine temporary incapacity of Kan.  Section 10 compensation should therefore be HK$9,789.47 x 4/5 x 355/30 = HK$92,673.65.

Section 10A

69.Mr Lam submitted that the compensation for medical expenses under section 10A should be in line with the court’s assessment of the period of genuine temporary incapacity.  The amount up to 9 June 2009 was HK$3,820.  I accept that.

Conclusion

70.The compensation is assessed as follows:

71.By the time when this Application was taken out, Kan had received periodical payments in the total sum of HK$98,788.13.  The total sum received so far amounted to HK$161,410.49. The compensation assessed falls short of the amount already received.  Mr Lam submitted that the Application should be dismissed with costs.  He referred to a similar order made in Lai Yuen Hing v Lo Chi Hung & Anor, DCEC 14/2000 (16 December 2002).

72.In Lai Yuen Hing, it was during the hearing when the respondent indicated that they did not dispute the occurrence of the accident and apparently liability.  Giving credit to the amount already received by the applicant, the learned Deputy Judge made no award and dismissed the application once and for all.

73.In the present case, by consent, HKSA has already been adjudged to be liable to pay compensation. These are proceedings to assess the compensation so payable.  I do not think it is proper to dismiss the Application, and thereby reversing the judgment on liability, on the basis that the compensation assessed does not exceed the payments already received by Kan.  The dismay at these proceedings being a waste ought to be reflected by an adverse costs order.  This is the order I am making.

Order

74.Compensation is assessed at the sum of HK$100,017.86.  For the above reasons, I make no award; and I make a nisi order that Kan shall pay HKSA’s costs of these assessment proceedings including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  Kan’s own costs shall be taxed according to legal aid regulations.  In the absence of application within 14 days to vary, the nisi order shall become absolute.

Mr HO Ka Kit of Messrs Au Yeung, Cheng, Ho & Tin for the Applicant upon the assignment by the Director of Legal Aid

Mr Paul LAM instructed by Messrs John Lam, Law & Co for the Respondent

Applicants' appeal to Court of Appeal allowed. Please refer to CACV240/2010 dated 26 May 2011