MOHAMMAD ZARBAS formerly known as MOHAMMED ZARBAS v. 廖超能 AND ANOTHER

DCEC 2332/2015

[2019] HKDC 516

IN THE DISTRCT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 2332 OF 2015

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J U D G M E N T

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1.  This is an employees’ compensation claim. The Applicant (“Mr. Zarbas”), a lorry driver, alleged that he injured his back whilst wrapping cellophane on goods on 29 November 2014 at the Kerry Warehouse in Fotan.

2.  Mr. Zarbas’ case was that he was employed by the 1^st Respondent (“Ah Chiu”) who was a sub-contractor of the 2^nd Respondent (“Wai Lun”), the principle contractor.

Liability

3.  Liability is disputed by both respondents.

4.  Mr. Zarbas gave evidence that he was approached by Ah Chiu in August 2014 and offered a job as a lorry driver to be paid a salary of HK$18,000 per month plus $50 an hour as overtime. He was previously driving for another employer and has met Ah Chiu many times at the Kerry Warehouse.

5.  Mr. Zarbas said that his work involved collecting a lorry from Cheung Sha Wan and driving it to Kerry Warehouse. In the morning, he would collect goods for Watsons and deliver them to the Watsons Warehouse at Pier 4 Container Terminal. In the afternoon, he would return to Kerry Warehouse and collect goods for ParknShop and deliver these to their warehouse. He received instructions from Ah Chiu who also provided an assistant for him in the lorry who would deal with all the paperwork.

6.  On the day of the accident, he was at Kerry Warehouse dealing with the goods for Watsons. He had been instructed by Ah Chiu to wrap the goods (with the help of the assistant) so that they would remain in place on the pellet.

7.  Ah Chiu’s case was that Mr. Zarbas was self-employed and rented the lorry from him. But he has elected not to give evidence in court. His witness, a Mr. Chan Yiu Tat, put in a very brief witness statement alleging that he sub-contracted Mr. Zarbas for certain work during November 2014, but Mr. Chan also did not attend court to give evidence.

8.  Needless to say that such allegations are denied by Mr. Zarbas.

9.  As Ah Chiu failed to present proper evidence before the court, I would find that Ah Chiu was indeed the employer of Mr. Zarbas at the relevant time.

10.  As for Wai Lun, there was no dispute that there was a contract between Wai Lun and Ah Chiu. Under this contract, Ah Chiu has to provide 2 lorries and one to transport goods from Kerry warehouse to the warehouse of Watsons and ParknShop and the other from Kerry warehouse to the warehouse of Mannings and Wellcome.

11.  Mr. Zarbas’ evidence was that he was driving the first lorry and Ah Chiu the second, and that at the time of the accident, he was in the process of loading the Watsons good in Kerry Warehouse to be delivered to the Watsons warehouse.

12.  Wai Lun disputed this by suggesting that firstly, Mr. Zarbas was driving a lorry with the markings of “Ah Chiu” and not “Wai Lun” therefore the staff would not have released the Watsons goods to him. Secondly, it was submitted that since Ah Chiu also separately engaged Watsons directly to deliver their goods to the shops, it was possible that he has assigned Mr. Zarbas for this work.

13.  I do not find the first argument convincing: if Wai Lun has engaged Ah Chiu to provide the service of 2 lorries (and, on balance of probability, these must have been the lorries driven by Mr. Zarbas and Ah Chiu), I could not see why the staff of Kerry Warehouse would not release any goods to a lorry with markings of “Ah Chiu”. If there was such a strict practice, I also could not see why Wai Lun could not simply notify the staff of the markings on the lorries of its sub-contractor.

14.  Mr. Zarbas said that his assistant dealt with all the paperwork and he never mentioned any problems that he had in obtaining Watson goods. Certainly, Wai Lun could have called a staff from the Kerry Warehouse to give evidence of such a strict practice but no such evidence was presented.

15.  The second argument appeared to be pure speculation. Mr. Zarbas’ evidence was that he was injured during the usual morning delivery to the Watsons warehouse and not to a Watson shop. Further, the witness for Wai Lun, Mr. Lau Ka Fai, said that the contract required Ah Chiu to deliver goods every day unless he is told not to. Thus, it would be open to Wai Lun to ascertain whether a “no delivery” order was given on the day of the accident, but no such evidence was advanced.

16.  As such, I find that, on balance of probability, Mr. Zarbas was performing the work under the contract between Ah Chiu and Wai Lun at the time of the accident. Wai Lun was therefore the principal contractor and was also liable under section 24 of the Employees’ Compensation Ordinance, Cap 282.

Quantum

17.  Mr. Zarbas’ case was that he hurt his back on the morning of 29 November 2014 as he was standing up after doing the cellophane wrapping for the Watsons goods. He was taken by ambulance to A&E of Princess Margaret Hospital. He was admitted to the Orthopaedics and Traumatology Department of Prince of Wales Hospital on the same day. According to the medical records, focal tenderness was found on lower spine and right sided paraspinal muscle. There was no symptom or sign of any neurological deficit and x-ray found mild degenerative change with no fracture or collapse. He was treated conservatively and was discharged on 4 December 2014.

18.  However, at the follow-up examination on 5 February 2015, Mr. Zarbas still complained of persistent pain and for the first time, as it appeared, left leg numbness (without weakness). However, physical examination showed “bilateral lower limb power full, sensation intact, reflex normal and symmetrical” and only “mild tenderness over L2/3 region”. Nevertheless, the date for the MRI investigation was advanced.

19.  MRI was performed in August 2015 which reported the findings of “small paraforaminal disc protrusion at L5/S1 contacting but not compressing the left exiting L5 nerve root”, “possible undisplaced priors defect bilaterally at L5” and “otherwise unremarkable appearances”.

20.  Various treatment options were discussed but it was recorded that Mr. Zarbas preferred conservative treatment. O&T records of follow-ups from October 2015 onwards recorded improvement of symptoms. All along, Mr. Zarbas had attended physiotherapy and been prescribed broadly the same prescriptions (Paracetamol, Celecoxib, Famotidine, with or without Amitriptyline and/or an analgesic balm).

21.  The last O&T follow-up record was dated 28 July 2016 which stated “pain controlled with analgesics, residual mild left leg numbness, walk unaided, tolerate work as security…lower limbs power full”. Similar prescriptions were given (for 72 weeks) and a follow-up was fixed almost 1.5 years ahead at 7 December 2017, and there was no record of any further sick leave granted.

Sick leave period

22.  According to Form 7 (page 177 of Trial Bundle), Mr. Zarbas had sick leave from 29 November 2014 to 4 January 2015, from 6 January 2015 to 22 October 2015, and then (with a gap of almost 3 months) from 14 January 2016 to 9 March 2016.

23.  Whilst one can understand that the one-day gap of 5 January 2015 is insignificant, the almost 3-month gap between 22 October 2015 and 14 January 2016 is perhaps a bit strange.

24.  This is all the more perplexing given that the O&T records of the follow-up consultation on 22 October 2015 (page 218 of the Trial Bundle) did state “SL till FU” (or Sick Leave until Follow-up), and the follow-up date was in 12 weeks (“FU 12/52”) which must have been fixed for 14 January 2016 (consultation records on page 219 of the Trial Bundle).

25.  According to Mr. Zarbas, it was he who informed the doctor that his condition had improved and he would like to try to work so he did not need any sick leave.

26.  He said he had in mind to apply for a security guard job but, 2 or 3 days after the follow-up consultation, he developed a very severe back pain: he could not sit for more than 2 to 5 minutes and needed to lie down, and after 5 minutes of lying down, he needed to get up. The pain was so bad that he needed sleeping tablets to sleep. His legs were not working due to the pain and for 2 to 3 days, he would need to be carried to the washroom. Further, such episode could last for one week, then he might be better for 1-2 days and the episode recurred.

27.  Mr. Zarbas said that due to the severe pain episodes during this time, he felt that he could not work after all and instead applied for Social Security for 4-5 months.

28.  However, when asked by the court, Mr. Zarbas said that despite such severe pain, he did not go back to see a doctor during this 3 months’ period because: “I told this to doctor many times and he said this is the treatment, keep on taking the medication, or there is an operation.” And have Mr. Zarbas ever asked for stronger treatment for the pain? He answered, “I did say so but they said that the treatment was the last.” Mr. Zarbas later also said: “I did not go to doctor because if I go, I would be given the same medication. Every time is the same.”

29.  None of this make much sense: I cannot see why a patient would repeatedly attend the same hospital, seeing the same doctor and receiving the same medications when clearly the treatment not only did not cure him of the condition, but led to an allegedly serious deterioration during that period.

30.  Mr. Zarbas also explained that he did not seek a second opinion because he could not afford private doctors. However, it was clear from the medical records that he had attended other public hospitals (and A&E department) and public clinics before. 

31.  Of course, if there were such severe pain episodes during this 3 months’ period, there was no record of such when Mr. Zarbas returned to the O&T clinic on 14 January 2016. In fact, the records stated quite the opposite: “walk unaided, improvement noted, decrease need for analgesics…lower back pain decrease”.  Furthermore, the doctor again prescribed the same medications.

32.  When this was pointed out in court, Mr. Zarbas could not give any convincing explanation. If there were any suggestions of language barrier, I would think that any patient who was suffering from such severe pain episodes would be reasonably expected to take all steps to ensure that the message got across to his doctor. And even if he could not find an interpreter, I could not see how a simple message like “I had severe pain and your treatment did not help!” could not be conveyed to the doctor by hand gestures and facial expressions alone. It would be highly unlikely that the doctor would instead misinterpreted the messages in the complete opposite sense.

33.  All these would raise a question on the credibility on Mr. Zarbas, especially with regard to his subjective complaints like pain and numbness.

The Joint Medical Report and LOEC

34.  Turning to the expert report of Dr. Wong Kwok Shing, Patrick (“Dr. Wong”) who is a single joint Orthopaedics expert, I note that the examination took place on 8 May 2018 and Mr. Zarbas still complained of various pains (of severity 4-5/10) which, amongst others, disturbed his sleep.

35.  This was not entirely in line with the last O&T records of 28 July 2016 (some 2 years previously) which stated “pain controlled with analgesics”. If it was true that Mr. Zarbas has not recovered (and even suffered from a degree of deterioration) during these 2 years, there was no evidence that he had sought further medical treatment (besides perhaps another follow-up at the O&T department scheduled for 7 December 2017 of which no records were presented to the court). I would find that whatever residue symptoms that Mr. Zarbas might suffer from, he did not show much concern for its cure.

36.  As for Simulation tests, Dr. Wong recorded complaints of mild pain on 3 out of the 4 tests. As I understand it, these movements should not elicit pain and positive findings may suggest a degree of “symptoms exaggeration”, either consciously or sub-consciously. Yet, Dr. Wong stated that “Simulation tests for non-organic low back pain are essentially normal” without explanation of the basis of that opinion. 

37.  Further, there was clear discrepancies in the Straight Leg raising tests: Mr. Zarbas complained of back pain with only 25 degrees on the left side and 35 degrees on the right side, and yet when he was distracted (whilst sitting), he did not complain of pain until at 80 degrees on both sides.

38.  This, of course, also put doubts on the “range of motion” tests and the findings of “tenderness” because these essentially would rely on the patient being truthful in reporting “real” pain when a certain degree of joint movement was reached or when a certain part of the body was palpated. Besides these, the only positive finding appeared to be “muscle guarding with movement”.

39.  Dr. Wong made no comment on this discrepancy but only reported that he “tolerate more stretching while sitting”. He did not explain whether he thought this was “symptoms exaggeration” or whether there were other explanations of this discrepancy.

40.  In any case, Dr. Wong found no neurological deficit and opined that “the current objective findings are compatible with reasonably satisfactory recovery with mild to moderate residue” and estimated a LOEC at 7-8%.

41.  However, in view of the question about the truthfulness of the subjective complaints and the issues I have with Dr. Wong’s opinion as stated above, I find Dr. Wong’s opinion on the generous side: it is more likely that Mr. Zarbas has reasonably satisfactory recovery with only mild residue, if any.

42.  Further, I note that Dr. Wong was of the opinion that Mr. Zarbas was “not fit to return to his pre-accident job which required prolonged sitting to drive and heavy lifting for good delivery”. However, I am not convinced that Mr. Zarbas’ previous job required prolonged sitting to drive or heavy lifting: the evidence before the court was that he drove to deliver goods twice a day between Fotan and Container Terminal (and perhaps picking up and parking the lorry before and after work) and he was required to wrap the goods with cellophane wrappings. In any case, Mr. Zarbas was only 37 at the time of the accident and 42 now and there was no finding of muscle wasting/loss of muscle power or neurological deficit, I cannot see why he could not find a driving job with less physical work if needed. 

43.  After due consideration of all the above, I do not think that the Hong Kong Paper Mills formula should apply to the current case.

44.  I note that the assessment of LOEC was 2% as stated on Form 7 (page 177 of Trial Bundle). Given my doubts, I think a reasonable estimation of LOEC should be half way between 2 and 7%, or 4.5%.

The period of “no” sick leave

45.  It was not in dispute that Mr. Zarbas somehow did not obtain sick leave between 22 October 2015 and 14 January 2016 despite the doctor recording “Sick Leave until Follow Up”. As discussed above, I am not entirely convinced that Mr. Zarbas was telling the truth about what actually happened during this time.

46.  Nevertheless, I note that sick leave was granted again after 14 January 2016 (although again, as above, there were serious questions as to what happened during this consultation). I think I will take a more broad-stroke approach and deem that the sick leave period should be taken as from 29 November 2014 to 9 March 2016 (or 15.33 months) solely for the purpose of assessment of employees’ compensation.

Mr. Zarbas’ pre-accident salary

47.  There is no dispute that this should be HK$19,000 per month.

Section 9: Compensation for Permanent Partial Incapacity

48.  Mr. Zarbas was under 40 years old at the time of accident so a lump sum equivalent to 96 months’ of salary should form the basis of assessment.

49.  Compensation under this section should be HK$19,000 x 96 x 4.5% = HK$82,080.

Section 10: Compensation for Temporary Incapacity

50.  As above, I would allow 15.33 months as the period of sick leave or temporary incapacity.

51.  Compensation under this section should be HK$19,000 x 0.8 x 15.33 = HK$233,016.

Section 10(A): Payment of Medical Expenses

52.  There was no evidence from the respondents to challenge this so I would allow HK$10,000 as claimed by Mr. Zarbas.

53.  The total claim should be HK$82,080 + 233,016 + 10,000 = HK$325,096.

Order on quantum

54.  The employees’ compensation be assessed at HK$325,096 with interest payable at half judgment rate from the date of injury until full payment.

55.  Costs of the action to the Applicant to be paid by the 1^st and 2^nd Respondents to be taxed if not agreed on a party to party basis on the District Court scale.