Kong Yuk-man v. Centro Digital Pictures Ltd.

DCEC774/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 774 OF 2001

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R U L I N G

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1. This application is made by the applicant under section 10(5) of the Employees' Compensation Ordinance for his periodical payments to be extended beyond the primary 2 year period. He has put in medical certificates recommending sick leave up to 9 April 2002. The respondents have already paid him periodical payments of $159,704.80 before they were represented by solicitors. Once their solicitors became involved in the matter, they considered the medical aspect of the evidence and now Mr Reeves, who appears for the respondents on this application, has submitted that if anything, the applicant has been overpaid and that on the state of the medical evidence at present, the appropriate course to take is to refuse to make further orders for periodical payments and to proceed to trial as soon as practicable where the evidence can be properly tested by examination and cross-examination of the medical experts.

2. He further submits that it would be wrong to order payments which, if found to have been unjustified, the respondents would have little or no prospect of recovery given the modesty of the applicant's financial position.

3. The history of the matter is as follows: the applicant was employed by the respondents as a motorcycle delivery rider. Whilst returning from a delivery, the applicant came off his motorcycle and was thrown to the ground. His application for compensation sets out the nature of his injuries as follows: sprained neck, mild disc prolapse of cervical spine at C4/5, C5/6 and C6/7 level, contusion of right shoulder, right elbow and right knee. That application is dated 26 April 2001, by which time the applicant had already been paid most, if not all of the $159,000 of periodical payments that he has received.

4. On 23 October 2001, the respondents' solicitors gave notice that they were acting in the case. Those solicitors, having considered the matter, refused further periodical payments with the result that the applicant has taken out this summons dated 15 December 2001 seeking periodical payments for a third year starting on 1 November 2001 for such period as may be certificated by the doctors up to the third anniversary of the accident.

5. On 4 December 2001, the applicant's condition was assessed by the Employees' Compensation (Ordinary Assessment) Board who, on 18 December, issued its certificate of assessment to the effect that the relevant injuries were multiple injuries resulting in prolapsed intervertebral disc at C4/5, C5/6, C6/7, L4/5, neck pain, lower back pain and numbness. It gave the loss of earning capacity permanently caused by the injury as 13 per cent.

6. The applicant objected to that percentage. A review was conducted on 5 March 2002 and a certificate of review was issued on 19 March showing an increase of 2 per cent to 15 per cent. Mr But, who appears for the applicant, has told me that his client is not disposed to accept that percentage. The respondents also do not and they have filed an appeal against those two assessments.

7. The medical history, findings, prognosis and opinions can be obtained from two full and helpful reports. The first in time is dated 24 February 2001 from Dr Lee, who was retained by the respondents' insurers, which he has supplemented with reports on 17 October 2001, 7 November 2001 and 20 December 2001. The applicant's own expert is Dr Patrick Wong whose report is dated 25 January this year.

8. A careful reading of those reports shows that both experts' conclusions are broadly similar. Both surgeons agree that the applicant's complaint of lower back pain is not related to the effect of the accident. This is because they cannot discover how the lower back symptoms could have been caused by the original injuries. Dr Wong himself is unable to see how the findings on X-ray examination and MRI scan can provide any anatomical basis for this back pain. Both experts therefore eliminate this as a result of the accident.

9. The main issue, therefore, is concerned with the neck pain. Here again, both surgeons, on examining the X-rays and MRI scans, agree that the degenerative changes found in the cervical spine and the disc prolapse of the cervical spine, which both characterise as mild, are more likely to relate to pre-existing developmental changes rather than due to the trauma caused by the fall from the motorcycle. Both also agree that such degenerative changes can produce neck pain. Both are also of the view that pre-existing degenerative changes provide a pre-disposition to pain after injury.

10. Dr Lee has observed that there was an 8 week gap between the accident and the applicant going to hospital with a complaint that his neck was painful. Dr Lee considers this gap significant and has led him to conclude that this neck pain is not related to the accident. This opinion has been arrived at by Dr Lee after reviewing the hospital clinical notes. Dr Wong puts the matter more favourably for the applicant. He concludes that the neck sprain suffered by the applicant as he hit the ground has aggravated his pre-existing condition.

11. Dr Wong's view on the length of sick leave is that the sick leave certificated by the Medical Assessment Board up to 4 December 2001 is adequate. He draws this conclusion in part from the fact that the United Christian Hospital that had been treating the applicant had concluded that his medical condition had become static a year after the accident. Dr Lee is much less generous on sick leave, limiting it to 12 months having regard to the finding that the condition had become static after this period. If that view were to prevail at trial, then the section 10 entitlement would have been comfortably exceeded by what has already been paid.

12. From this Mr Reeves submits that it would be wrong to merely rubber stamp the applicant's case simply because he has medical certificates which go well into the third year, up to 9 April. He says that the medical evidence raises serious medical issues which cannot be overlooked at this stage.

13. It is right to say that the scheme of the legislation is to provide an income for the injured and unemployed workmen until the final medical effects of the relevant accident are known and the court is able to arrive at an assessment for compensation as provided for under the ordinance. Not surprisingly, Mr But stresses the deeming provisions of section 10(2) of the ordinance which is in these terms:

"For the purposes of this section, a period of absence from duty certified to be necessary by a medical practitioner, a registered dentist, an ordinary assessment board or a special assessment board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury."

14. This of course is so where there is nothing else to place alongside that sort of evidence. In this case there is the evidence of Dr Lee. I have found his report, prima facie, compelling. If I were to go on and award more than what has already been paid and at the trial it emerges that Dr Lee's evidence is preferred by the trial judge, there is a very real risk that the respondents will be done an injustice. Even though they are entitled to claim reimbursement and they may be able to set off any section 10 overpayment from the applicant's section 9 claim, at this stage it is not sufficiently clear whether the section 9 quantum would be sufficient to achieve that. It should be remembered that Dr Lee's percentage for the section 9 computation is 5 per cent, which contrasts sharply with Dr Wong's 13.5 per cent and the board's 15 per cent.

15. There are therefore real issues which can only be determined at the trial. I appreciate that the applicant is short of money, but this is not the only consideration. I need to balance a number of factors as I have attempted to demonstrate. The application must therefore stand dismissed. The applicant's remedy is to press on for an early trial and I now propose to give further directions in order to secure that.

(Discussion re filing of witness statements within 21 days)

16. Application to set down is adjourned to 10 May at 2.30 pm

(Discussion re costs)

17. Respondents' costs in the cause with Legal Aid taxation.