CHENG PUI KIT v. PHYSICAL HEALTH CENTRE HK LTD

DCEC 1158/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1158 OF 2015

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D E C I S I O N

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1.  The 39-year-old[1] applicant (“Cheng”) was a physical trainer under the employ of the respondent (“Physical”) when she was allegedly injured in the course of work on 15 February 2014. She claims compensation pursuant to the Employees’ Compensation Ordinance, Cap 282 (“ECO”). This is her application for interim payment.

2.  According to Cheng, in the course of training a client and when she was about to sit on a fitness ball, the ball had rolled away so that she landed her buttocks on the gymnasium floor.

3.  On 4 June 2015, Cheng commenced the proceedings in this case.  In the notice of application, complaint about fall injury with back contusion was made.  She has been on sick leave since.

4.  As to the occurrence of the accident, Physical made no admission in its answer.  However, it specifically avers that the alleged accident did not, as it could not, cause the alleged injury, because the mat on the gymnasium floor would absorb any shock from the alleged fall.  Further the alleged back injury is not genuine, and Cheng feigned her injuries when seeking treatment so as to obtain the sick leave certificates.  In any event, Physical has made advanced payments, without admission, of a total sum of HK$562,165, which is said to have already exceeded any compensation payable under sections 10 and 10A of the ECO.

5.  By summons dated 2 September 2015, Cheng claims interim payment of HK$100,000 or such sum as the court deems fit[2]. In court, Mr Kwong appearing for her asked for that sum or any other sum less than that.

6.  By her affirmations in support, Cheng had the following to say:

(1)  As a result of the accident, she suffered serious fall injury with back contusion and neck injury.

(2)  After the accident, she was admitted to the hospital, and was found to have sustained serious injuries to her back and neck.

(3)  Due to persistent pain in the neck and pain, she was unable to resume her pre-accident employment.  Sick leave has been continuing since the accident.

(4)  Physical refused to continue her periodical payments since March 2015.

(5)  She has to shoulder up household expenses in excess of HK$32,000 a month.  She has no savings.  She is in serious financial difficulty.

(6)  At the pre-accident monthly rate of about HK$65,157, her entitlement to periodical payments since March 2015 up to the end of August 2015 would be about HK$312,752.  She is prepared to accept the lesser sum of HK$100,000 being sought.

(7)  She is experiencing financial hardship.

7.  For the present purpose, I have to be satisfied that if the case proceeds to trial, Cheng would obtain judgment against Physical for a substantial compensation: see O.29, r.11(1)(c) of the Rules of the District Court, which applies in the context of employees’ compensation. It does not suffice to show that he or she may or will likely succeed on the materials before the court, if the case goes to trial: see Hong Kong Civil Procedure 2016 (Vol.1) at §29/11/1.

8.  Physical opposes the application, and contends that Cheng fails to show that she would obtain judgment for substantial compensation on top of the advanced payments already received.

9.  The sick leave certificates are essentially what Cheng relies on.  Under section 10(2) of the ECO, the certificates give rise to a rebuttable presumption of temporary incapacity during the certified period.  The burden is on the employer to rebut that presumption: see Tse Tsz Chong v. Law Sze Man [2015] 1 HKLRD 1120; Yu Tat Kam v. Chu Tung Shing & Anor [2009] 6 HKC 411.

10.  Physical argued that there are abundant materials in rebuttal of the presumption.

11.  First, the court was asked to exercise caution in considering Cheng’s complaint about injury to her neck.  There is indeed basis for the skepticism.  The following evidence was referred to:

(1)  Cheng claimed that she felt her neck was injured immediately after the accident so that she was given a neck brace by the paramedics.  Yet according to her handwritten statement dated 7 March 2014, which was 3 weeks after the accident, what she felt immediately after the accident and before the ambulance came was inability to move her back and legs.  There was no complaint about neck injury or pain.

(2)  According to her insurance claim form filled in by the hospital on 13 August 2014, Cheng was said to have injured her lower back resulting in residual back pain.  No mention of neck injury or pain was mentioned.

(3)  The first sick leave certificate that on its face referred to neck problem was 21 January 2015.  This was 11 months after the accident.

(4)  Nevertheless, according to the referral letter dated 29 April 2015 from the orthopaedic and traumatology department of the hospital, Cheng was said to have back contusion, and she complained about low back pain and lower limb numbness.  Still no mention of neck injury or pain was made.

(5)  When she filed her Application on 4 June 2015, supported by statement of truth, Cheng still mentioned nothing about neck injury or pain.

12.  Second, the materials produced by Cheng in support of her application are said to have failed to substantiate the alleged extent of injury and temporary incapacity. In the insurance claim form dated 13 August 2014 mentioned above, the hospital reported that healing of Cheng was not complicated.  According to the referral letter dated 29 April 2015 mentioned above, the hospital reported that Cheng has no spinal stenosis or indication for orthopaedic intervention.  Referral was made purely because of her complaint about persistent pain.

13.  Third, pursuant to section 16 of the ECO, and as evidence in rebuttal (see Kan Wai Ming v. Hong Kong Airport Services Ltd, [2011] 3 HKLRD 497 at §17), Physical arranged Cheng to be examined by orthopaedic specialist, Dr. Tsoi Chi Wah Danny, on 13 December 2014.  In his report dated 23 December 2014, the doctor expressed the following opinion:

(1)  If the accident happened as described by Cheng, it is likely that she sustained a soft tissue contusion injury of the buttock.

(2)  Physical examination revealed a lot of inappropriate signs and features of symptoms magnification.  The doctor opined that her alleged low back and buttock pain were disproportional to the objective findings.  The actual degree of pain was very likely less severe than claimed.  The doctor was not convinced that she had any left lower limb weakness.

(3)  According to the sick leave certificates, she did not sustain any neck injury.  The doctor also opined that a fall on the buttock would less likely give rise to neck injury. It was his opinion that her complaint about the neck is unrelated to the alleged accident.

(4)  Her overall prognosis was good.

(5)  Orthopaedically she should be fit to resume her pre-injury job in very good capacity.

(6)  Reasonable sick leave for the back injury should be limited to six months.  Sick leave for her neck pain should not be related to the subject accident.

14.  Fourth, whilst through her solicitors, Cheng put on record her disagreement with Dr. Tsoi’s report, Cheng still has not produced any further medical records or reports relevant to her injuries, treatment and diagnosis in support of her present application.  In their submission, her solicitor’s attempt to categorize neck injury consequential upon shock to the buttock (somehow with reference to whiplash injury) as a matter of common sense was a bold one.  Notwithstanding Cheng’s disagreement, Dr Tsoi was subsequently consulted and, in writing, stood by his report and opinion.  The doctor recommended the obtaining of all the medical records and reports from the treating hospitals to resolve the disagreement. Like request by the solicitors for Physical has not been heeded to by Cheng.

15.  Cheng has also turned down the request on behalf of Physical for a joint examination, even at Physical’s expense.  The reason was that her condition was not stable for such examination. Dr Tsoi opined that Cheng was so ready.  The solicitors for Physical pointed out, and it was not disputed during the hearing, that appointment had also been made for arranging assessment by the Medical Assessment Board of the Labour Department in late December 2015, but was defaulted by Cheng.  In court, her solicitor explained that she has moved to live in Shenzhen.

16.  Fifth, Physical has produced evidence of surveillance (written report and video recording) on Cheng on various days between June and August 2014, which was 4 to 6 months after the alleged accident.  The video recording has apparently yet to be shown to Dr Tsoi for his further opinion.  However the images captured do not suggest that Cheng had or expressed any difficulty in her body movement while managing quite a variety of daily activities.  Instability or disability could not be observed.  Cheng has filed further affirmation to comment.  But what is said above is at least one impression an objective viewer may reasonably form.

17.  It was argued on behalf of Physical[3] that treating doctors generally accept at face value the patient’s complaints without forensic examination to the extent that the medical experts do, and therefore they should not be heeded to in the present case.  I probably need not go as far as sharing such observation, which may be unfair to the medical practitioners involved.  Nevertheless the materials before the court at this stage serve their purpose of rebutting the presumed state of affairs arising out of the sick leaves.

18.  It was also suggested that the shock from the fall would have been absorbed by the mat on the floor in any event.  But the factual basis for such suggestion is yet to be established.  Taking that suggestion as a commonsense view would be no different from mere assumption.

19.  Because of the suspicion that the alleged accident was not genuine, Physical also suggested that further investigation and study of the medical evidence would have to be conducted.  It was submitted on its behalf that Cheng’s case would stand or fall on her own credibility, and the Court, without expressing any view on the credibility issue, should dismiss the application for interim payment[4].

20.  As far as whether the accident happened as alleged is concerned, there are accident report, written confirmation of eye-witness and medical record shortly after the accident[5].  On the basis of the materials available now, no clear tentative view could be formed that the accident was a fabrication. Nevertheless there are indeed abundant materials to cast doubt on what the sick leaves on their face suggested and thus the extent of her injuries and incapacity as a result of the accident, even if occurred as alleged.  That clearly highlights the substantial dispute as to quantum at least.

21.  At all times, and including hearing, the whole basis for the application for interim payment is based on Cheng’s entitlement to periodical payments under section 10 of the ECO. According to Dr. Tsoi, reasonable sick leave in her case should be 6 months.  On that basis, Physical has so far paid substantially more than that.

22.  Cheng emphasized her financial hardship.  It is not disputed that Cheng has received payment from her own insurance (according to her, about HK$70,000).  She affords legal representation, including changing legal firms, up to now without legal aid.  But she now claims poverty that prevents her from even attending public hospital treatment.  The other side of the coin is the risk of inability of Physical to recover any overpayment eventually, if it is proven right in the contest.

23.  It was in respect of the alleged financial hardship that reference was made to the offer of interim payment by Physical to Cheng.  The relevant correspondence was disclosed, which were not marked as without prejudice. Physical has offered interim payment of HK$50,000, which Cheng, through both her previous and current solicitors, rejected and demanded for the amount of periodical payments calculated on the basis of the continuing sick leave.  That was apparently not quite her stance in this hearing.  As mentioned, she seeks payment of HK$100,000 or any sum even less than that.

24.  On this previous offer of interim payment, I should perhaps mention this.  The offer was made expressly to avoid argument.  It was made clear in submission that this was made on a without prejudice basis.  I am afraid that the care that needs to be taken in the disclosure of such exchange between the parties in the present application has not been taken.  In Tse Tze Chong v Lam Sze Man [2015] 1 HKLRD 1120, the Court of Appeal made clear that without prejudice correspondence with a view to settlement should not be disclosed to the court before determination of either liability or quantum or both in hands, be it final or interlocutory hearing (such as interim payment). That was a case concerning sanctioned payment (or payment into court) but the principle came from the well established common law[6]. The appellate court expressly made clear that the same applies to without prejudice correspondence in connection with interim payment application[7]. For the avoidance of doubt, such disclosure here does not affect in any material way my determination in this application.

25.  In conclusion, there are, to my satisfaction, sufficient materials to prevent the court from ordering interim payment as sought.

ORDER

26.  The application is dismissed with costs.  The costs order is nisi and shall become absolute in the absence of application in 14 days to vary.  Upon that, Physical shall submit in 7 days its statement of costs for summary assessment on paper.  Unless costs are agreed, Cheng shall submit her comment in 7 days after receipt of the statement.