LAI KIN MAN v. SUNG YIM AND ANOTHER

DCEC43/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 43 OF 1999

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JUDGMENT

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This is an application for employees' compensation under Sections 9, 10, 10A of the Employees' Compensation Ordinance.

2. The applicant's claim was that he was injured on 25th January 1997, by an accident, arising out of and in the course of his employment with the first Respondent (R1). The applicant was 27 years of age at that time.

3. It is not in dispute that the first Respondent (R1) was the employer of the applicant.

4. It is not in dispute that R1 was the sub-contractor of the second Respondent (R2).

Issues

5. The respondents took issues with the applicant, in that:

(1) The applicant did not meet with an accident on 25th January 1997;

(2) The applicant did not report any such accident within 24 hours of its occurrence;

(3) The applicant's complaint was not caused by an accident arising out of and in the course of the employment.

6. The respondents decided not to pursue the point that the action is out of time, at the conclusion of the hearing.

7. The applicant raised a legal issue, in that for employees' compensation to be payable, the accident need not be the sole cause of an injury or complaint, if the accident was a relevant or material cause, and it triggered an injury or complaint, arising out of and in the cause of the employment.

Background

8. The applicant had worked for R1 Sung Yim as a drainage worker since August 1994. He ceased working for R1 in May 1997.

9. The applicant has a driving licence, but had never been issued with a licence to drive a crane-mounted lorry.

10. To clear a severely blocked drain, it would be necessary for a driver to drive a crane-mounted lorry with the necessary machines and tools to a work site, and to carry out drainage clearance together with other workers on a team.

11. The work procedure required the driver to park the lorry on the roadside, and to set out traffic cones and road signs.

12. The workers would then remove manhole covers from two manholes between a section of the drain to be cleared. Water from a fire hydrant would be conducted to a water compression machine through a hose, with another hose leading from the machine inserted into one of the manholes. The latter was equipped with a nozzle with jet heads opening backwards. A nylon line, attached to one end of a metal cable, wound on a drum, was tied to the nozzle. When the water compression machine was started water under high pressure would shoot out of the nozzle, forcing the nozzle through the drain, to come out of the other manhole. The nylon line and the cable would be pulled through the manholes at the same time.

13. By tying a metal disc, called a plunger, to the cable, and winding the cable back on the drum with the use of a winch machine, the plunger would be pulled through the drain to clear the blockage. There are many types of plungers of different sizes.

14. To guide the cable into winding itself evenly onto the drum, a worker had to put a metal rod under the cable at an angle, and exert force.

15. After a section of a drain, between two manholes, had been cleared, a nylon rope would be tied to one of the manhole covers, running through the drain, to the other manhole cover. This was to facilitate inspection of the work done. Workers would pull a plunger through the cleared drain, in the presence of officers from the Drainage Services Department, to confirm the work was done.

16. The facts contained in the background are not in dispute, and are found as facts of the case.

The applicant's case

The accident

17. On the evening of 25th January 1997, The applicant drove the crane-mounted lorry to the work site at Nelson Street, Mongkok. He carried out the procedure for clearance of severely blocked drains, with his team.

18. The applicant's evidence was that at about 11pm on 25th January 1997, while he was guiding the cable, holding down a metal rod at an angle with force, the plunger in the drain got stuck. The tension in the cable increased, causing a pull down force on the metal rod that the applicant was holding. This caused the applicant to sprain his back, and to feel severe pain.

The report

19. The applicant complained to the two other workers who were with the applicant at that time, Respondents' third witness (RW3) Lee Yue Yan, one of the three bosses, and Chiu Bun. The applicant was in pain and did no other work that night.

20. At about 12 midnight, when the workers went for midnight snacks, the applicant telephoned R1, and the applicant's third witness (AW3) Tang Chi Kwong, another worker, about the accident. R1 told the applicant to rest, and reassured the applicant that it would be alright in a few days. Tang consoled the applicant by saying this kind of thing was an occupational hazard, and it would be alright after a while

21. The applicant bought some analgesic which he took. Despite the severe pain, the applicant remained sitting in the driving cabin of the lorry for the rest of the shift, until about 5 am. The applicant then drove the lorry back to R1's company, as the other two workers did not have a driving license.

22. At R1's company office, inside a container, at Cheung Sha Wan, the applicant told R1 and all his colleagues that he had hurt his back, and how it happened. R1 again consoled him. It was AW3's evidence that AW3 had asked the applicant to deliver some money to his girl friend, who was in China, on the following day, which was a Sunday, and that the applicant told AW3 on the telephone, that the applicant would not be doing so, as a result of the accident.

23. R1 assigned the applicant to only light duties after the applicant sustained the back sprain. The applicant was asked to drive the lorry, hold a torch, clean rubbish, assist in fetching the nylon rope, and turning on machines.

24. The applicant had no relief from the pain sustained as a result of the accident, for the four months afterwards. At the trial, the applicant stated that he was still feeling the same straining pain, at four localized locations, on his left lower back, left posterior hip, and left lower leg, at the knee and heel. He had felt no pain on his thigh, or any pain radiating down his left leg from the back.

The medical treatment

25. On Sunday, 26th January 1997, the applicant went to visit a bone-setter, Lee Ming, recommended by RW3 Lee Yue Yan. The applicant was given herbal hot pad treatment. The applicant attended the bone-setter for treatment before starting work, on every other day since then, until May 1997. He paid $160 per visit, but did not ask for any receipts. Because of the strong smell of the herbal medicine pad, the applicant was of the opinion that everyone in R1's employ must be aware of the treatment he was receiving. AW3 agreed that while the applicant came to work everyday after the accident, the applicant was in pain and had to visit a bone-setter everyday.

26. On 12th February 1997, the applicant went to the Accident and Emergency Department (AED) of Prince of Wales Hospital (PWH). The applicant was granted three days sick leave, from 12th to 14th February 1997, and was referred to the physiotherapy department. The applicant underwent physiotherapy treatment sessions until the end of March, when he ceased to attend. The applicant paid a total of $220 for the treatment at PWH. AW3 had once seen the applicant presenting a sick leave certificate for 3 days to R1 in the container office, on 28th January 1997.

27. On 26th April 1997, the applicant attended a private general practitioner, Dr. Leung Shih Yee, for three times, at $160 per visit. The applicant did not ask for receipts.

28. The applicant's condition did not improve.

29. The applicant consulted a chiropractor, and received eleven acupuncture treatments from 15th May 1997 to 27th May 1997. He paid a total of $4,345, as shown in the receipts.

30. The applicant received further medical treatment after he left R1's employ in May 1997.

31. On 17th June 1997, the applicant went to the General Out-patient Department of Kwong Wah Hospital, and again on 26th June 1997.

32. On 18th September 1997, the applicant was admitted to a hospital in Shenzhen, PRC, for surgery.

33. On 14th December 1997, the applicant attended the specialist clinic at Kwong Wah Hospital, as his back was not completely cured.

34. On 13th May 1999, the applicant attended for a MRI.

35. Since December 1997, the applicant acquired the use of a waist band to help him cope with his back pain, while driving a mini-bus. He abandoned it about a year later, as it was not of much help. The waist band cost A $350, for which the applicant did not have a receipt.

Employment and Income

36. In January 1997, the applicant received $450 for each day of work. After the Lunar New Year in February 1997, he was paid $500 for each day of work. On 27th May 1997, the applicant left R1's employ.

37. In December 1997, the applicant took up a job as a mini-bus driver. In December 1999, the applicant left to join another mini-bus company as a driver.

38. The applicant received a basic salary of $8,000 per month, in addition to bonus.

39. From April 2000 to March 2001, the applicant's total earning was $183,717.

40. The applicant's evidence was that his income for April 2001 was less than his income for April 2000 to March 2001, as there was less business. In February 2002, the applicant's income was $12,662.93. In January 2001, the applicant's income was $15,816.60.

41. Because of the injury, the applicant has not been able to carry heavy objects since the accident. The applicant is neither able to work as a drainage clearance worker, nor as a construction worker. The applicant has no other skills except knowing how to drive.

Medical evidence for the applicant

42. Dr. Tsoi Chi Wah, Danny, the applicant's second witness (AW2) examined the applicant. AW2 prepared two medical reports, dated 8th July 1999 and 10th October 2001. AW2 interviewed and examined the applicant. The applicant informed AW2 that the applicant noticed an immediate back pain after the accident, but thought it was a minor injury. The applicant told AW2 that the pain became worse after a few days, and then the applicant went to consult a bone-setter.

43. AW2 saw a MRI report prepared in May 1999, after he had prepared his first report. AW2 modified his comment, and agreed that there was no impingement to the nerve root, with only a mild protrusion of the applicant's lower back spine. The manifestation of the symptoms the applicant complained of, was consistent with the way the applicant described how the accident happened.

44. From a medical point of view, he could not tell the exact time when the protrusion occurred, nor when the applicant sustained the back sprain. From the medical records, AW2 agreed that the applicant was not able to tell the exact date of his injury, when the applicant was sent to the physiotherapist on 12th February 1997. On that date, the applicant was only able to say that he had been injured on duty, between 10 to 20 days before.

45. He concluded that, without clear and consistent medical records, he could not say whether the protrusion was an injury occasioned by the accident, or a triggering off of a pre-existing condition. He could not confirm the accident to be the sole cause of the applicant's condition.

46. AW2 was not aware of the fact that the applicant was in a traffic accident in November 2000. He was under the impression that all the medical reports related to the accident on 25th January 1997. It was only during the trial, when AW2 was shown the full reports from PWH, that AW2 first became aware that the cause of the applicant's injury was said to be "back injury on heavy lifting". The applicant had described a different version of his cause of injury to AW2.

47. AW2 agreed that on his examination of the applicant, and of the medical records, the applicant had shown an inconsistency in his complaints, particularly in how he reacted to medical examination. The applicant had exaggerated his pain symptoms, and was not making maximum effort, voluntarily under-performing during the examination.

48. AW2 was of the opinion that there is 5% impairment suffered by the applicant. He would consider the applicant's loss of earning capacity to be from 5% to 10%, had he been allowed to comment on this aspect.

Quantum

Temporary incapacity under Section 10

49. The applicant did not work from 27th May 1997 until December 1997, when he became a mini-bus driver. His monthly earning was in the average of $12,000. The applicant is still working as a mini-bus driver.

50. The period of temporary incapacity under Section 10 is 7 months.

51. The amount under Section 10 would be :

7 x $12,000 x 2/3 = $56,000

Medical expenses under Section 10A

52. The expenses for chiropractic therapy came to a total of $15,270.

53. The applicant underwent 52 sessions of bone-setter's treatment at $160 per session. The amount came to $8,320.

54. The applicant conceded that under Section 10A (3) of the Employees' Compensation Ordinance, he would not be able to recover for both the chiropractic and bone-setter treatment, as there was a daily limit of $160.

55. The applicant underwent 5 sessions of physiotherapy at PWH at a total of $220.

56. 3 visits to a general practitioner were at $170 per visit, totaling $510.

57. The purchase of a waist band was at $350.

Compensation under Section 9

58. It was urged on the applicant's behalf that if the maximum figure of $18,000 was not to be taken, then the best favourable figure of $14,450, as shown in the applicant's list of earnings in November 1996, be taken as the basis of the calculation. On the 10% loss of earning, according to AW2's opinion, the applicant asked for :

96 x $18,000 x 10% = $172,800.

59. The applicant also applied for interest at half judgment rate on the total award.

The Respondents' case

60. It was the respondents' case that the applicant sustained no injury on 25th January 1997 while at work. It was not in dispute that the applicant had injured his back in 1997, but that was the result of massage that the applicant received in China.

61. The applicant did not have the necessary licence to drive a crane-mounted lorry, he was not allowed to do so. R1 and Respondent's third witness, Lee Yue Yan (RW3), agreed that only one person, Hung Kwok Wing, possessed the licence to drive the crane-mounted lorry. R1 had the only key to the crane-mounted lorry. He had not given it to the applicant.

62. To deploy the winch, the crane-mounted lorry must be used. Prior arrangements had to be made for Hung to drive it to a site. Another driver would be required to drive the water compression machine to the same site.

63. There was a Government Works Order for drainage clearance work at another section of Nelson Street, from 10th January to 17th January 1997 (the first order). The first order was certified as having been completed on 17th January 1997.

64. The Government Works Order under which drainage clearance work was carried out at Nelson Street from 24th January 1997 (the second order), involved the clearance of sewer drains of 150mm to 225mm. These drains were simply too small to accommodate the kind of plunger, of 16 to 18 inches in size, that the applicant alleged was being used on 25th January 1997. The crane-mounted lorry and the winch were never deployed on that day. The applicant could not have sustained his injury in the manner he described.

65. R1 did not receive any calls from the applicant around midnight during January 1997, complaining of injury at work. R1 had never received any sick leave certificate from the applicant around that period. Had there been any report of injury, the government officials in charge of daily supervision and inspection of the works would be notified, and a report duly made to senior officers. There had been no such report.

66. RW3 Lee Yue Yan, testified that he was on the same team with the applicant and another worker Chiu Bun. He could not remember the applicant ever driving the crane-mounted lorry, while the applicant was working with him. Hung Kwok Wing was the only one with the necessary licence to drive that lorry. RW3 was not aware of the applicant sustaining any serious injury while they worked together as a team, from the end of 1996 to May 1997. RW3 did not know of the applicant being injured while at work, on 25th January 1997. He did not agree that the crane-mounted lorry was ever used for the Works Order at Nelson Street around that period of time.

67. RW3 considered plungers of 16 to 18 inches could not be used in the site at Nelson Street. The plungers would be too big for the drains that were 150 mm to 225 mm (6 inches to 9 inches) in size.

68. RW3 agreed with R1 that the attendance record was kept on a chart mounted on the wall of the container office. Attendance of workers reporting for duty would be marked on that chart.

Medical evidence for the respondents

69. The Respondents' first witness (RW1), Dr. Johnson Lam, examined and assessed the applicant on 9th January 2002. Before conducting the examination, RW1 saw various medical reports on the applicant.

70. RW1 interviewed the applicant. The applicant told RW1 that there was no pain or injury to his legs, before the accident on 25th January 1997. RW1 asked the applicant about this point twice, and received the same answer.

71. RW1 noted that, from the historical aspect, the applicant's visit to PWH on 12th February 1997 was the first medical documentation of the injury, 18 days after the accident. The applicant was sent off for physiotherapy on the same day. The symptom as noted by the physiotherapist was of lower back pain radiating to lower thigh. The history was of injury on duty, 10 to 20 days ago, the patient being unable to tell the exact date.

72. From his reading of the reports, RW1 was of the opinion that physiotherapy treatment was beneficial to the applicant. He could not understand why the applicant decided to discontinue such treatment.

73. RW1 considered it important to look at the applicant's medical history to ascertain if the complaint was consistent with the cause of injury. RW1 noted that the applicant was given a day sick leave by Dr. Leung Shih Yee on 26th April 1997 and 13th May 1997, for left sciatica. RW1 defined sciatica pain as a radiation of pain along the sciatica nerve, going down from the back, through the buttock, thigh, calf ankle, and sometimes to the sole. Such pain would not break up into individual spots.

74. RW1 noted that between a physiotherapy visit on 21st March 1997 and on 26th April 1997, the applicant apparently sought no medical treatment, on the records. Unless the applicant had a symptom free period, RW1 could not understand why no treatment was sought.

75. In the two weeks between 13th May 1997 and 27th May 1997, RW1 noted that there had been rather intensive treatment, with a total of 11 attendances at a chiropractor's.

76. On 17th June and 26th June 1997, the applicant went to Kwong Wah Hospital, complaining of lower back pain.

77. The next available medical record related to that from the Futian Hospital at Shenzhen. RW1 was not able to tell, from the material disclosed, exactly what treatment was given to the applicant, or what kind of surgical operation was performed. X ray taken after the operation did not show that any surgery was done to the applicant's disc. The MRI did not show that anything was actually done. The MRI showed the disc to be intact, with no scarring where intervention had taken place. It was possible that intervention, trauma, operation or degeneration could have caused the "reduced L4/5 disc space with heterogeneous lost of T2 signal."

78. The medical records showed that the applicant attended the Specialist out-patients clinic on 14th December 1998. Clinical examination showed no tenderness of his back. The straight leg raising test was normal. X-ray of his lumbar spine shows no abnormality. RW1's opinion was that for a patient suffering from sciatica, straight leg raising test would be difficult, it would not be "normal". From a clinical point of view, where a patient complained of sciatica pain, observation of MRI would reveal impingement of the nerve. Where there is no impingement of the nerve, there is no medical explanation for sciatica pain.

79. Until RW1 attended the hearing, and was given the back pages of the 3 medical reports, dated 12 February 1997, 25th November 2000, and 27th November 2000, from PWH, RW1 was not aware that the applicant had been involved in a traffic accident on 24th November 2000. RW1 was under the impression that all 3 medical reports related to the incident on 25th January 1997, when he gave his opinion that the applicant "was likely to have more than one injury to the back." RW1 had seen no other medical report that the applicant suffered pain on "lifting weight", prior to reading the full set of the medical report dated 12th February 1997.

80. It was RW1's evidence that, for the injury sustained on 25th January 1997, with treatment, the applicant should get well between 6 weeks to 3 months. It was unlikely that such pain would persist from that time until now.

81. From his own examination of the applicant, RW1 concluded that the applicant had exaggerated his symptoms of pain. Tests conducted suggested that the applicant was not putting full weight into what he was doing. RW1 concluded that the symptoms complained of by the applicant was unlikely to be causally connected to the injury on 25th January 1997. To explain causation, there must be evidence to link the applicant's suffering with the medical history. There was no pre-existing problem, in the clearly documented evidence, such a history was not found. It appeared to RW1 that there was more than one assault or injury to the applicant's spine. He could find no evidence that the accident on 25th January 1997 caused the back or leg problem. It was improbable that pain as complained of to be competent with the injury.

82. RW1 concluded that the applicant could undertake a light to medium work load. He accepted that there was injury to the applicant's back. RW1 would take no issue with AW1's estimation of the applicant's loss of earning capacity as between 5% to 10%. RW1 would personally put the range as between 5% to 8%.

Quantum

83. The respondents' only point on quantum was the difference on the percentage favoured by the two doctors, AW2 at 5% to 10% and RW1 at 5%, and the fact that both doctors agreed that it was strictly speaking, outside the scope of medical evidence.

84. The respondents did not deal with the question of quantum, as the respondents' case was that the fact of the accident and the injury as alleged by the applicant did not arise.

The evidence

85. Parties are agreed that on 25th January 1997, the applicant was at Nelson Street, carrying out drainage clearance work. This is accepted and found as a fact of the case.

86. There were in fact two Works Orders relating to sewer drain clearance at Nelson Street. The first order was for the period from 10th January to 17th January 1997, at the rear lane of No.61- 87 Sai Yee Street to No. 15E -17 Nelson Street (the first order). The second order was for the period from 24th January to 14th February 1997, at Nelson Street from Fa Yuen Street to Nathan Road (the second order). This is also accepted and found as a fact of the case.

87. The applicant's evidence was that he was carrying out unfinished work from the first order, and was not working on the second order, on 25th January 1997. R1's and RW3's evidence were that the applicant and his team were working on the second order.

88. The respondents further relied on the evidence that the first order had been completed on 17th January 1997, as certified by the Government Engineer, Choi Kai Sing. The certificate was signed on 26th May 1997. The applicant produced a certified true copy of the first works order, containing the completion certificate.

89. While the applicant accepted that the works records were contemporaneous, and the certificate of completion to be independent, the applicant considered that the time lag between the completion and the certification should be explained, and that the respondents should produce evidence that the work was actually completed. The applicant's contention was that the completion certificate was inconclusive.

90. On the evidence available, there is nothing to suggest that the first order was not completed as certified by the Government Engineer. He was an independent and disinterested third party who, at the time of the certification, would not be privy to any importance to be attached to the completion date. There is nothing to cast doubt on the fact of the completion date. I accept and found as a fact that the first order was completed on 17th January 1997. I accept and found as a fact that the applicant was working on the second order on 25th January 1997.

91. The irrefutable evidence of the second order with plan attached was that the sewer drains being cleared were of 150 to 225 mm (6 to 9 inches). I accept and found this to be a fact of the case.

92. The applicant was adamant that he had driven the crane-mounted lorry to the site, in spite of admitting that he did not possess the necessary licence. He also insisted that he was working with the winch machine, holding down a metal rod to guide the cable attached to the plunger, when he was injured. The applicant had, by reference to a photograph that he took of a plunger, indicated that he was working with a plunger of a size about 16 to 18 inches. He later tried to retract from this position, in the cross examination, by saying that he did not know the size of the plunger used on 25th January 1997, when it became clear that the sewer drains could not accommodate such a big plunger. There were attempts to salvage the position, by contending that even with much smaller plungers, there might be occasions when it would be necessary to deploy the winch.

93. The size of the sewer drains being found to be 6 to 9 inches, the applicant could not be working with a plunger of 16 to 18 inches in size. To fit the sewer drains being cleared then, plungers of much smaller sizes must have been used. I find as a fact that the applicant was not working with a plunger of 16 to 18 inches in size, but of a size small enough to pass through sewer drains of 6 to 9 inches in size only. I do not accept that the applicant had been working with a winch on the evening of 25th January 1997.

94. While there is no dispute that the applicant sustained injury to his back sometime in 1997, the respondents did not accept that A was injured on 25th January 1997, in the course of his employment with the respondents.

95. The first official medical record of the applicant seeking medical treatment for back injury was on 12th February 1997, at PWH. On that day, when the applicant was given sick leave, and was sent for physiotherapy treatment, the applicant was not sure of the date of his injury, putting it at 10 to 20 days ago, whereas he was positive about the date of his accident and injury some 5 years later.

96. The applicant informed AW2 that the pain became worse a few days after the accident, and then the applicant consulted a bone-setter. The applicant's evidence at the hearing was that he consulted a bone-setter, recommended by RW3, immediately on 26th January 1997. RW3 denied knowing anything about the applicant's complaint on 25th January 1997, or of recommending any bone-setter to the applicant.

97. While AW2 considered that the manifestation of the symptoms complained of by the applicant was consistent with the way the applicant described how the accident happened to AW2, RW1 concluded that the symptoms were unlikely to be causally connected to the accident. It was AW2's evidence that A had described a different version of his cause of injury to AW2, from that recorded on the medical reports from PWH.

98. The medical evidence, taken as a whole, is inconsistent with the injury occurring in the way the applicant described, the date of the injury and the extent for which treatment was required. The applicant saw fit to discontinue physiotherapy treatment when there was documented progress, while resorting to intensive alternative treatment. It was also the applicant's evidence that such treatment did not provide much long-term relief.

99. Both medical doctors, AW2 and RW1, agreed that the applicant had shown an inconsistency in his complaints, and had exaggerated his symptoms. Both AW2 and RW1 agreed that the applicant did not make maximum effort, and was voluntarily under-performing during medical examinations carried out by AW2 and RW1 separately. This affects the applicant's credibility adversely.

100. The applicant had not shown himself to be a truthful and reliable witness. He was not above bending his evidence to suit the facts of the case as it emerged, when the facts could not be reconciled with his stated position.

101. The evidence of the other witnesses had been taken into account in full, and due consideration given to them. There was not much assistance to the applicant's case.

102. I find that the applicant's injury was not caused by an accident arising out of and in the course of his employment on 25th January 1997.

103. The application is dismissed.

104. Costs to the Respondents, to be taxed if not agreed, with certificate for Counsel.

105. Applicant's own costs to be taxed in accordance with the Legal Aid Regulations.