SIU YEUK CHUN v. HANG SHING PRINTING CO LTD.

DCEC323/98

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 323 OF 1998

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

_____________________

J U D G M E N T

_____________________

1. The applicant Siu Yeuk Chun who was born in 1960 claims employee's compensation pursuant to Sections 9, 10 and l0A of the Employees' Compensation Ordinance, Cap. 282 in relation to two accidents at work. He was at the material times a paper cutting worker employed by the respondent.

2. The applicant's case is that he met with his first accident on 13 May 1996 and his second accident on 16 March 1998. In both of them he hurt his back. The respondent's case is that he never had any accident. Its directors Mr Fung and Madam Ng who are husband and wife say that they were never told about any accident, at any rate until much later.

3. The applicant has been assessed by the Ordinary Assessment Board as having a 7% loss of earning capacity. His medical expert puts his loss at 10%. The respondent's expert says there is nothing much wrong with him and puts it at nil. The respondent seeks leave to appeal out of time against the Board's assessment. The applicant also seeks leave to cross-appeal.

4. The applicant's case on the first accident as it appears from his Further and Better Particulars is that whilst on duty he carried 4 reams of paper, i.e. 2,000 sheets, from a paper cutting machine to a printing machine. As he walked, the paper slid, and he twisted his lower back and right shoulder as he tried to hold it, but it fell on the ground. As to the second accident, his case is that he bent down to get hold of a ream of paper and this sprained his back again.

5. The respondent's pleaded defence is a simple denial that any accident occurred; or if any did that it arose out of or in the course of employment; or that the applicant sustained any injury as a result.

Factual Evidence

6. Originally the applicant pleaded that he met with his first accident on 13 May 1996 and/or in July or August 1997 but in evidence the 1997 dates have been abandoned. Curiously enough, although the proceedings were commenced on 7 May 1998 only the first accident was pleaded; averments relating to the second accident were added by amendment in January 2000. The explanation seems to be that in the beginning the applicant only had legal aid to claim for the first accident.

7. His evidence on the first accident is somewhat different from his pleaded case and indeed his witness statement. From the latter it appears that he was carrying large uncut paper sheets but from oral evidence it appears that the sheets had already been cut to quarter size, i.e. about 11 by 8 inches. He was carrying a stack of about 500, and not 2,000 as pleaded. The stack was quite heavy but he could carry it. In any event the papers slipped and he twisted and sprained his waist and right shoulder while trying to stop them falling. He felt pain at the waist and numbness and pain in his right shoulder. A colleague, Mr. Kwan who has not given evidence heard the sound of the paper falling and saw the applicant pressing his waist. However, he did stretching exercises and the pain gradually subsided. He carried on working.

8. The applicant in his witness statement says that he told his employer Mr. Fung Yuk Hoi about the accident a few days later. In evidence he says it was ten or twenty days later. In any event it seems to have been a casual mention. The applicant says that he did not ask to see a doctor because he did not think he had suffered any injury. However, says the applicant, after that the pain got worse and worse. On 30 August 1996 he went to hospital and was referred to the surgical department. It appears that the doctors thought he had a kidney problem, perhaps a kidney stone. He was on and off sick leave for various periods after this, until eventually in January 1997 the doctors decided that he had no kidney problem and referred him back to the orthopaedic department.

9. In his Further and Better Particulars the applicant averred that he had told Madam Ng on a work day in August 1996 that he had injured his lower back and right shoulder at work but did not give any particulars of the injury, and that he told Mr. Fung the details of the first accident in February 1996. This is not repeated in the witness statement. In cross-examination the applicant said that he might have been mixed up as between Madam Ng and Mr Fung.

10. As to the second accident the applicant says that he squatted down to get hold of a ream of paper, and sprained his back again. When he tried to get up he could not stand straight. He sat and rubbed his back and rested for a while then went on working for the rest of his overtime period. He was receiving physiotherapy at that time, and when he went for treatment the next day, he told the physiotherapist about this accident. He was advised to go and did go to the out-patient department. This time, he says, he telephoned his employer's wife, Madam Ng Mei Wan and told her about the accident although this does not appear in the witness statement; he says he forgot it. He also handed in to her his sick leave certificate on the same day. He remained on sick leave, he says, until 9 April 1999.

11. Madam Ng says in her statement that she was not told of the first accident in August 1996 or at all. In evidence she says she was never told at all that he had been injured at work. She was the person in charge of personnel matters for the respondent and she received the sick leave certificates but she never asked the applicant how he got the illnesses of which he complained. She just followed her understanding of the law which was that a worker on sick leave had to be paid four-fifths of salary for a maximum of 120 days. She never heard about any accident until some time in 1998. It appears that she wrote to the Department in February 1998 denying that the first accident had been reported to the company; but she says she was not shown the applicant's Notification of Accident forms, neither that relating to the first accident, dated 6 January 1998 or that related to the second, dated 17 June 1998.

12. Mr. Fung also says that he was never told about either accident, be it formally or informally. He knew that the applicant went on sick leave but he left such matters to his wife. He only ever knew applicant complained of loin pain.

13 , It is necessary to look at the medical records at this point, for what the applicant is recorded as having complained of at various times. As I have noted the applicant went to the hospital on 30 August 1996 and was referred to the surgical department for investigation of possible kidney disease. A medical report by Dr. Sing of the Accident and Emergency (A&E) Department, Queen Elizabeth Hospital, shows that he complained of left loin pain for about a month. He tested negative for blood in urine and was X-rayed but no kidney stone was found. He was referred to the surgical out-patient clinic but seen again at A&E on 2 September for persistent loin pain.

14. A report by Dr. So of Department of Surgery shows that the applicant was given renal function test, urine culture and intravenous urogram but all were normal. According to Dr. Lo of that department he was last seen on 28 November when it was suggested that his problem could be musculo-skeletal. He was referred back to the Orthopaedic Department. Drs Li, Mak and Wong of that department all report that he was referred there on 29 January 1997. He was then complaining of right shoulder pain persisting for two years after falling on his right elbow. He was seen again on 23 July complaining of a 3 month history of back pain provoked by heavy lifting. He had right leg paresthesia and weakness and was X rayed; it appears there was a disc problem. He was given physiotherapy and drugs and referred for an MRI scan. Ultimately the scan showed protrusion of L4/L5 disc with no nerve root compression.

15. A report by a Dr. Ho of the same department shows that the applicant was a patient of the Orthopaedic Department since January 1997 for right shoulder pain. He had symptoms of back pain in mid-1997 with right sciatica. He was given physiotherapy from July 1997 for back and shoulder pain. Then on 27 March 1998 he was seen again with back pain "so severe that he could not resume usual duty". MRI was performed on 15 May 1997 and showed mild prolapse of the disc at the fourth and fifth lumbar vertebrae.

16. According to a Dr. Yip, Chief of Service of the A&E Department at the hospital the applicant was seen there on in January and March 1998 complaining of low back pain "caused by injury about a year ago". In fact his attendances at the A&E Department in March 1998 were on 3 March, 17 March and 24 March.

17. The respondent has produced various other hospital notes and records. It appears that in July 1998 the applicant told an occupational therapist of the first accident but did not mention the second accident at all. In July 1997 he complained of back pain, referring to an injury three months before. In October 1997 he gave a "history of sprain back 2 years ago with on and off low back pain". On 17 March and 24 March 1998 he referred to an injury one year before. On 3 March 1998 he complained at the A&E department of "sprain back yesterday". All these records were put to the applicant in cross-examination and he was not able to give any clear explanation of them. Nor is there any clear explanation why, when he presented with loin pain in August 1996, there is no record of his having mentioned any kind of trauma to the back. Under cross-examination he said that he mentioned it. He told the doctor he had back pain. He pointed to the painful area with his hand. However it is very difficult to imagine that if he mentioned trauma, the doctor would not have investigated it as well as investigating a possible kidney disorder; the kidneys lie on either side of the spine, and the "loin" is regarded by the medical experts as being to one side of the spine.

Medical Evidence

18. There is no dispute that the applicant suffered from a slipped disc; that was found on the MRI scan. The Ordinary Assessment Board on 8 September 1999 assessed him as having "lumbar spine injury resulting in prolapsed intervertebral disc at L4/L5, limited motion and right sciatica." It assessed a 7% permanent loss of earning capacity. It noted various periods of absence from duty, between 30 August 1996 and 9 September 1998 as being necessary as a result of the injury.

19. The applicant's expert, Dr. Au Ka Kau, saw him on 29 September 1998. He based his report on examination, the plaintiff's history of the two accidents and consideration of the various hospital reports. He took into account the applicant's report at the hospital of an accident in 1997 and came to the conclusion that the applicant probably had multiple injuries to his back between 13 May 1996 and 16 March 1998. The first one was probably a mild one; there was a second one in about April 1997; and the injury on 16 March 1998 aggravated the applicant's condition so that he was unable to work since then. Dr. Au could not apportion the present impairment between the various injuries but he put the total impairment at 10% and the loss of earning capacity at 10%.

20. The respondent's expert, Dr. Tsoi Chi Wah, Danny, saw the applicant on 14 May 1999. He also took into account hospital reports, though not all of those seen by Dr. Au, the applicant's history of two accidents and his own examination. He said that apart from some vague tenderness at the L1 level of the lumbar spine no abnormality was detected in the back. Apart from a tender spot on the right scapula muscle there was nothing wrong with the shoulder. He accepted that the applicant had had an injury on 15 March 1998, which is the date given to him and said that residual back pain of which the applicant complained was related to that second accident. He did not think the applicant suffered from any permanent impairment as a result of the first accident, and doubted that it had happened. He did not find any permanent impairment resulting from the second accident either.

21. There were some differences in the findings of the two surgeons. In particular Dr. Au found that the applicant limped, which Dr. Tsoi did not. He found restricted back extension which Dr. Tsoi did not. He found some numbness in the leg, soreness in the lumbar region and tenderness and spasm in the upper right para-lumbar region. Dr. Tsoi found no reduction of extension, no spasm and no tenderness save for that at L1.

22. Dr. Au explained the difference by saying that the applicant might have had less pain when he saw Dr. Tsoi; the pain would be on and off. He could not exclude the possibility of improvement. He said that the numbness could be explained by scarring at the disc site remaining to affect the nerve after the disc protrusion had regressed. Dr. Tsoi however would not have this. According to him, if there had been disc protrusion bad enough to compress the nerve he would not expect it to regress in the 5 months between the date of accident and the date of the scan. As to the Board's assessment he took the view based on his own experience doing such work that such assessments are not very thorough. He accepted that the applicant's condition could have got worse after he had seen him; but said that for that to happen the applicant would have had to work.

23. Dr. Au accepted in cross-examination that the desiccation of the disc seen on the scan could be the result of aging though he thought trauma more likely. I do not think there is any significance in this finding in any event given that Dr. Tsoi does not appear to be saying that the applicant's condition, insofar as he accepted that the applicant suffered from anything at all, was caused by aging.

Assessment

24. The applicant has to prove that he suffered an accident or accidents which arose out of and in the course of his employment and that the same caused or materially contributed to his disabilities. It is argued for the respondent that he cannot be believed because of his various inconsistencies. It is also suggested that Dr. Au took what he said at face value, and that he could have been malingering at that examination.

25. There is no doubt that there are various inconsistencies in the applicant's case. On the other hand neither Madam Ng nor Mr. Fung seems entirely credible. It is most unlikely that neither of them would have inquired why the applicant was on sick leave; the business was a small one, and he was on sick leave quite often. They would surely have wanted to know what was wrong with him. Their position of continuing indifferent ignorance does not seem credible.

26. So far as the first accident is concerned, the applicant's account does not tally with the hospital attendance records, quite apart from any inconsistencies between his evidence and his statement, Further and Better Particulars and so on. As I have indicated there is no record that he told the doctor of any trauma when he attended in August 1996. He would surely have done so if that is what he thought was wrong with him. In fact his records do not show anything relating to orthopaedic complaints before 1997. I cannot be satisfied that the applicant met with any accident in the course of his employment on 13 May 1996.

27. The second accident and its results are less difficult to pin down. By March of 1998, for whatever reason, the applicant was suffering from back problems, on and off. He may well have suffered from minor sprains in the course of his work but we cannot be sure of that, or when they took place. He seems to have managed to tell a doctor on 3 March 1998 that he had sprained his back the day before. He attended the A&E Department on 17 and 24 March and mentioned an injury a year before. I am not particularly concerned about this sort of thing because he could well have suffered many small injuries to his back and not been able particularly to remember precisely when they were, when asked by a doctor.

28. That there is no record of a complaint of accident the day before on 17 March is perhaps more significant, but in any event the applicant was then unable to work; he was given sick leave that day and a week later by the A&E doctor, and he presented at the Orthopaedic Department on 27 March, apparently as part of a series of follow-up appointments. He is recorded as having acute pain and being unable to resume normal duty; it is also shown that he had been given sick leave by the A&E department since 17 March. I do not think it follows that he did not have acute pain before 27 March. He was on continuous sick leave from 17 March onwards and this supports his evidence of having had an definite accident at work on 16 March. He was paid sick leave pay from 17 March also; Madam Ng could not deny that she had seen the sick leave certificates and whether she thought she was paying out under the provisions of the Employment Ordinance or the Employees' Compensation Ordinance is, I think, of little significance.

29. The applicant certainly had a slipped disc; both the experts agree on that. They also agree that he had an accident on 16 March (Dr. Au) or 15 March (Dr. Tsoi). It seems to me more probable than not that he met with the accident that caused the slipped disc on 16 March 1998.

30. There is also the question of whether he told his employer of the accident, and if he did, whether it was too late. He says he telephoned Madam Ng; she denies it. However it is difficult to see why he would not have told her of the accident and it seems to me more probable than not that he did.

31. In sum, I am not satisfied that the applicant met with an accident arising out of and in the course of the employment on 13 May 1996. I am satisfied that he met with such an accident on 16 March 1998. I accept Dr. Au's opinion that that injury aggravated the applicant's condition so that he was unable to work thereafter. I do not think that it is significant that Dr. Au could not assess the effects of the different injuries; obviously what happened on 16 March caused or materially contributed to the applicant's condition; it took him from being a man with a troublesome back to a man with a permanent disability. So he is in any event entitled to compensation for that injury. There is, it appears, now no claim for compensation arising out of the injury on 13 May 1996.

The Appeals

32. The Board assessed the applicant as having 7% permanent loss of earning capacity. Dr. Au says 10% and Dr. Tsoi says nil. Dr. Au's explanation that the applicant would have good and bad periods makes sense. A back injury can go on giving trouble on and off permanently. That is a matter of general knowledge. I accept Dr. Au's explanation. There is therefore no reason to allow the respondent's appeal out of time against the 7% assessment. I can see no reason to allow the cross-appeal either. I cannot say that the Board was wrong.

Quantum

33. Parties' solicitors have agreed the quantum including interest up to the date of judgment at $352,363.00. However since I have found no accident on 13 May 1996 the claim for medical expenses of $304.00 falls to be deducted from that figure. It is not necessary to adjust the interest figure because any adjustment would be very small. The final figure will therefore be $352,059.00.

34. There will therefore be judgment for the applicant against the respondent for $352,059.00, with interest at the judgment rate from the date of judgment until payment, and costs (nisi) to be taxed if not agreed; and the applicants own costs to be taxed in accordance with the Legal Aid Regulations.