SANJEEV KUMAR v. FUNG WONG TRUCK SERVICE CO LTD

DCEC 1765/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1765 OF 2012

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IN THE MATTER OF AN APPLICATION

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JUDGMENT

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Background

1.  This is a claim for employees’ compensation by Mr Sanjeev-Kumar (“the applicant”) under the Employees’ Compensation Ordinance, Cap 282 (“ECO”) in respect of an accident allegedly occurred to him in the course of work on 15 October 2011.

2.  There is no dispute that the applicant was employed by the respondent as a warehouse worker at the time of the alleged accident; he was working in the afternoon of 15 October 2011 in the respondent’s warehouse.

3.  Both liability and quantum are in issue.

4.  The applicant is legally aided.

5.  The court was informed that the respondent’s solicitors act upon the instructions of the respondent’s insurers under a valid employees’ compensation policy of insurance.

LIABILITY

6.  The applicant’s case is that the accident occurred when a box of goods/electronic appliances on the top of a stack of boxes fell and hit him at the back of his head/neck when he was pulling out the box immediately beneath it.

7.  The respondent denies the occurrence of the accident.

8.  Parties agreed that the only issue on liability is whether the accident had occurred as alleged.

The applicant’s evidence

9.  The applicant and his co-worker at the time of the accident, Singh Rajinder (“Rajinder”) testified in court.  Both adopted their witness statements served in these proceedings as their evidence in chief.

10.  Succinct evidence on liability of the applicant can be summarized as follows:-

(1) At about noon time on the day of the accident the container arrived at the warehouse.  He was assigned, with about half of the workers in the warehouse, by his Indian team leader Singh Sukhmeet, whom they called “Peter”, to unload the carton boxes from the container;

(2) The boxes, of a size of about 2 ½ to 3 feet wide and more than 2 feet in height each, were stacked up to 4 rows in the container which was about 7 ½ to 9 feet in height.  Each box with the electronic goods or speakers inside must weigh between 25 to 35 kg;

(3) He took the boxes out from the stack one at a time starting from the one at the top.  He could not reach the box at the top as it was above head level.  He therefore pulled out the box immediately beneath it in order to move the top box out together before he could retrieve the box at the top;

(4) His oral testimony on how the accident occurred: “when I pulled it, I pulled the carton and realized it was going to fall on me – I sat on the ground and it hit the lower part of my right neck”;

(5) He felt painful and dizzy upon being hit by the falling box.  His co-worker took him out of the container where he sat and rested for 10 to 15 minutes.  He drank some water and later performed light manual work;

(6) The neck and shoulder pain got more severe.  He told Peter about the accident and that he needed to go to see a doctor.  Peter gave permission for him to leave early, so he clocked out and left;

[Attendance records show that the applicant clocked out at 17.00 that day.]

(7) In court he testified that they had unloaded about half of the boxes when the accident occurred.  He estimated the whole unloading operation would take about 1 to 2 hours;

(8) When asked the time when the accident occurred and whether it should be about 2 pm as they had by then unloaded half of the boxes, the applicant answered that it was sometime after lunch, adding that there was no fixed time for lunch; and

(9) There is no dispute that he went to seek treatment from private medical practitioner Dr Henry Chan on the day of the alleged accident on 15 October 2011 after work.  He sought treatment again at the Accident & Emergency Department (“A&E”) of Tuen Mun Hospital (“TMH”) the following day, and thereafter attended further follow up for neck and shoulder pain.

11.  The applicant’s evidence is corroborated by that of his co-worker Rajinder whose evidence can be summarized as follows:-

(1) At the time of the accident, he was working inside the container with the applicant.  He saw the applicant pull a carton box from above the rows and suddenly the box on the top row fell on him;

(2) He states in his witness statement that the applicant “later informed our team leader and left the warehouse”;

(3) In court, he testified that he accompanied the applicant out to the exit of the container after the accident and told him to drink some water.  He immediately told another worker who was working outside the container to replace the applicant in the unloading work inside the container;

(4) In court Rajinder testified that the applicant did not resume work that afternoon after the accident.  He only saw the applicant “around and about the area” and later he knew that the applicant had left and gone home.  He did not see or hear the applicant talk to Peter about the accident; and

(5) When asked the time when the accident occurred that afternoon, Rajinder said it happened sometime between 4 to 5 pm.  He further said that the container arrived at about 3.30 pm that day and they started unloading.  It took “a bit more than 70 minutes” to unload the whole container, and that at the time of the accident there was about 25% of the boxes left to be unloaded.

The respondent’s evidence

12.  The respondent called three witnesses, namely (i) administration manager Ng Wang Tat (“Ng”); (ii) warehouse supervisor Chan Wing Tat (“Chan”); and (iii) team leader Singh Sukhmeet, ie “Peter” referred to by the applicant and Rajinder.

13.  The evidence of all three respondent’s witnesses is that the applicant never reported the alleged accident to any of them.  The respondent first came to have knowledge of the alleged accident in the following year upon receipt of a letter dated 24 May 2012 from the applicant’s solicitors, and a letter of Notification of Work-related Injuries and Accident dated 30 May 2012 from the Labour Department.

14.  Ng’s evidence on work attendance of the applicant on and after the alleged date of accident, supported by the applicant’s work attendance clock-in records, is as follows:-

(1) The applicant attended work from 10:49 to 17:00 on 15 October 2011, ie the day of the alleged accident;

(2) From 17 to 21 October 2011, he attended work as usual from about 10:30 to 20:00, except that he left work early on 17 October 2011 at 14:08;

(3) From 24 to 26 October 2011, he attended work as usual from about 10.30 to 20:00, except on 24 October 2011 when he left work early at 16:00;

(4) The applicant did not work on 16, 22 and 23 October 2011 as those were Saturdays/Sundays; and

(5) He had not returned to work since 27 October 2011 and his employment with the respondent was terminated on 31 October 2011.

15.  Peter’s evidence can be summarized as follows:-

(1)   There were more than one Indian team leaders in charge of the Indian workers including the applicant.  He was the team leader of the applicant but not Rajinder;

(2)   He had heard of the applicant complain of neck and shoulder pain during the 2 or 3 days prior to the alleged accident.  It was rather common that manual workers would sometimes have neck and shoulder pain.  He also noticed the applicant had a stiff neck and could not turn his head freely.  He had thought that the applicant had a stiff neck due to bad sleeping posture.  He did not ask the applicant the reasons for his neck and shoulder pain;

(3)   On the day of the alleged accident, the container arrived at about noon time (before lunch).  He assigned the applicant and another Indian worker Lakhwinder Singh (“Lakhwinder”) to do the unloading work together with a forklift operator;

(4)   They started with unloading work after lunch at around 1 pm.  Sometime between 4 to 5 pm, the applicant came to tell him that he had shoulder pain and needed to see a doctor without mentioning anything about an accident.  Peter replied yes and that he should go see a doctor (as the applicant had complained of having such pain for a few days).  Peter informed Chan who gave permission for the applicant to leave work early;

(5)   The applicant returned to work as usual on Monday on 17 October 2011 and in the following 10 days, except on Saturdays and Sunday.  He told Peter he still suffered from neck and shoulder pain but did not mention anything about him having an accident.  He sought permission from Peter to leave work early to go to see a doctor on 17 October 2011 (at 2 pm) and 24  October 2011 (at 4 pm);

(6)   During that period, the applicant submitted sick leave certificates on neck and right shoulder pain to the respondent through Peter, but never mentioned anything about an accident;

(7)   Towards the end of October 2011, he met the applicant who came back to the warehouse to submit sick leave certificates.  The applicant told Peter that he would return to India for about a month to seek medical treatment for his neck and shoulder pain.  Peter told the applicant that the respondent could not keep his employment if he was to be absent from work for so long.  The applicant left, and did not mention anything about an accident;

(8)   He first heard of the alleged 15 October 2011 accident after the respondent’s receipt of a demand letter from the applicant’s solicitors the following year; and

(9)   The handling of heavy boxes of goods weighing 25 kg or more would definitely require two workers.

16.  Peter’s evidence is corroborated by that of Chan.  His evidence is that during his patrol of the warehouse in the afternoon of the alleged accident, he saw Lakhwinder and the applicant engage in unloading work in the container.  He could not recall seeing Rajinder working with the applicant that afternoon; in fact he could not recognize Rajinder or tell whether the latter had been working for the respondent.

17.  Chan also confirmed that at about 5 pm on the alleged day of accident on 15 October 2011, Peter asked him for permission and he agreed for the applicant to leave work early to see a doctor. On the morning of 17 October 2011 when the applicant returned to work, Peter brought him in to see Chan who was requested to sign on the clock-in card of the applicant to confirm Chan’s approval for the applicant to leave work early (at 17:00) on 15 October 2011.  He signed the clock-in card without asking the applicant the reasons for or the cause of his illness. The applicant did not mention to him any accident.

18.  Prior to 15 October 2011, Chan had heard Peter mention that the applicant had neck and shoulder pain.  He did not ask and did not know the reasons therefor, as he had thought that these complaints were not uncommon among manual workers.

Contemporaneous medical records

19.  The applicant’s allegation of an occurrence of injury at work on 15 October 2011 is contradicted by contemporaneous medical records which are summarized as follows:-

(1) Consultation notes dated 15 October 2011 by Dr Henry Chan record, “neck pain for 2/7…no history of injury” (meaning 2 days as confirmed by Dr Chan);

(2) Medical notes dated 16 October 2011 by the A&E of TMH record, “shoulder pain…x 2/7…injury ͦ….right neck pain & right shoulder pain x 2/7…sprain on lifting heavy…neck pain after sprain” (meaning “for 2 days, no injury”);

(3)   Medical notes dated 18 February 2012 by the A&E of TMH record, “injury ͦ…” (meaning “no injury”);

(4)   Physiotherapy appointment records dated 20 February 2012 read, “x injury; pain since 4 months ago”;

(5)   Physiotherapy (TMH) Spinal Assessment Form dated 10 April 2012 records “(a tick in the box of) Non-IOD…no history of trauma” (meaning not injury on duty); and

(6)   Medical notes dated 22 April 2012 by the A&E of TMH record, “informant: self and friend (as translator)…no recent injury…no history of injury…”.

20.  Medical records show that the applicant had been seeking continuous follow up treatment at TMH since October 2011.  It is agreed that the earliest record of the applicant reporting an alleged accident on duty on 15 October 2011 is one dated 11 May 2012, ie almost 7 months after the accident, as shown in the Yan Oi GOPC of TMH consultation notes which read, “…alleged IOD 15.10.2011…neck hit by box resulting in neck pain…”.  

21.  Medical records after that date consistently record “IOD on 15.10.2011…neck hit by box…” though in some notes the cause of injury is stated to be “S/F” (meaning “slip and fall”).  On 23 July 2012, the A&E of TMH recorded in the consultation notes, “IOD+, Box falling from 2 feet above his neck x 6/12 ago”.

22.  It is noted that the time of the first report of IOD in May 2012 coincides with the time when the applicant had apparently sought legal advice pursuant to which a demand letter dated 24 May 2012 from his solicitors was sent to the respondent and on 30 May 2012 a report on injury on duty was made by the applicant to the Labour Department.

Analysis of the Evidence

23.  The applicant mentioned for the first time when testifying in court that he had ducked down or sat on the ground in the accident upon seeing that the box at the top row was going to fall on him.

24.  He did not explain why upon seeing the box falling on him he should duck or sit down on the ground instead of moving away in order to avoid being hit.  Had he been sitting on the ground when hit by the box (from the top 4^th row) weighing between 25 to 35 kg and falling from a height of 6 or 7 feet or even higher, he would most likely have suffered much more serious injuries.  It would have been most unreasonable for him not to report the accident or his injuries right away to his supervisor, or that he could have continued to work, albeit in light manual work, until almost 5 pm as stated in his witness statement.

25.  It would also be unreasonable that the applicant, during his return to work when submitting sick leave certificates in the following 1 or 2 weeks, and indeed during the following 7 months when he could not resume work, did not report to the respondent or the treating doctors an injury at work sustained on 15 October 2011.

26.  There is no evidence that Rajinder had ever reported the accident to the respondent.  Had the serious accident happened to the applicant in the way described and witnessed by co-worker Rajinder, it would have been inconceivable why Rajinder did not report the accident to the team leader or his supervisor on the day of the accident or in the days that followed when the applicant could not return to work, particularly when he now confirmed in court, contrary to his witness statement, that he did not hear the applicant talk about the accident with Peter.

27.  The evidence of the applicant and Rajinder is inconsistent in the aspects of (i) time of the accident; and (ii) whether the applicant had continued to work after the accident before he left at 5 pm.  In the applicant’s evidence, the accident had occurred earlier in the afternoon between 1 to 2 pm, which is consistent with his evidence that he had after the accident done other light work until he left (at 5 pm).  Rajinder’s evidence is that the accident occurred between 4 and 5 pm, hence his evidence that the applicant did not resume work but left after the accident.  This casts doubt on cogency of their evidence.

28.  Peter’s evidence that the applicant had complained of neck and shoulder pain for 2 or 3 days prior to the alleged accident is consistent with contemporaneous medical notes and records, in particular what was presumably reported to Dr Chan on 15 October 2012 shortly after the alleged accident.  It would have been inconceivable for the applicant not to inform Dr Chan of the accident had he been hit by a heavy box weighing between 25 to 35 kg that fell from above head level earlier that afternoon.

29.  In an attempt to explain away the “neck pain for 2 days” recorded by Dr Chan on the day of the accident, the applicant testified that he had problems communicating in English; he had simply put up two fingers, meaning 2 hours, when asked by Dr Chan for how long he had had the pain.

30.  Apart from being a most unreasonable reply in suggesting that he had had pain for two hours instead of, for example, neck pain due to an accident which had just occurred that day/ earlier that afternoon, it still does not explain the record of “no history of injury” by Dr Chan.

31.  The absence of symptoms of blunt trauma, not even redness or swelling, in the consultation notes dated 15 and 16 October 2011, is also inconsistent with the alleged accident in which the back of the applicant’s neck/head was hit by a heavy box weighing 25 to 35 kg falling from above head level when he had sat on or ducked to floor level.  The symptoms recorded relate to decreased range of movement and tenderness of the neck only.

32.  Medical notes dated 16 October 2011 by the A&E of TMH record, “shoulder pain…x 2/7…injury ͦ….right neck pain & right shoulder pain x 2/7…sprain on lifting heavy…neck pain after sprain”.  This does not assist the applicant’s case.  Whilst confirming again that there was no injury, “sprain on lifting heavy weight” is a totally different account from “neck hit by a heavy falling box”.  Apart from that there is of course no evidence of any alleged sprain being related to work.

33.  The applicant’s explanation of language problems or miscommunication hence the nil record of IOD in the initial 7 months is doubtful.  Consultation notes dated 11 November 2012 by Tuen Mun GOPC of TMH record “Indian, speaks English” and details of “alleged IOD 15.10.2011…neck hit by box resulting in neck pain”.  Apparently, he was able to provide details of his pain and discomfort, and of the accident, when he attended follow up alone.  On the other hand, during consultation on 22 April 2012, he confirmed that there was no history of injury when he was accompanied by a friend as translator.

34.  The medical records show that prior to 11 May 2012 there was no report of IOD or indeed there were consistent reports of “no IOD or injury”.  It cannot be due to consistent miscommunication for 7 whole months, as opposed to a consistent report of IOD on 15 October 2011 with details as shown in nearly all medical, physiotherapy and occupational therapy records dated after 11 May 2012.

35.  I found Peter a fair and frank witness who gave simple and straightforward answers to the questions put to him.  Where his evidence conflicts with that of the applicant, I prefer the evidence of Peter.

36.  Had the applicant reported to Peter the alleged accident immediately after the accident, during the 2 weeks that followed when he returned to work or to submit sick leave certificates or during the conversation in end-October 2011 when Peter told him his employment would not be kept during his month’s absence back to India, there was no reason why Peter did not report the accident to Chan.  The respondent would then have reported the accident to the insurers for the case to be dealt with, as it had done after receipt of the letter and notice of the accident from the applicant’s solicitors and the Labour Department in May 2012.

37.  The burden of proving on a balance of probabilities an accident at work had occurred as pleaded lies on the applicant.  On the overall evidence, in particular the contemporaneous medical records (covering the initial 7-month period) of no IOD or injury, I do not accept the applicant’s evidence that he met an accident on 15 October 2011 in the course of work as pleaded.

38.  I therefore find that the applicant has not established liability against the respondent in this action.

39.  My conclusion on this issue alone is sufficient to dispose of the whole matter. I proceed to deal with quantum for the sake of completeness.

Quantum

40.  The parties agreed on the following matters of quantum for the purposes of the ECO:-

(i) The applicant was aged 32 at the time of the accident and a multiplier of 96 is applicable under section 9;

(ii) Pre-accident monthly earnings of $9,000;

(iii) Sick leave of 12.12 months or 368 days; and

(iv) Paid medical expenses of $6,025.

41.  The only issue in dispute is the percentage of permanent loss of earning capacity for purpose of section 9.

42.  The applicant was assessed to be suffering 2% permanent loss of earning capacity in respect of “neck injury resulting in neck pain with residual radiculopathy” by the Employees’ Compensation (Ordinary Assessment) Board (“the Medical Board”) as set out in a Form 7 (Certificate of Assessment) issued on 17 July 2013.

43.  Both parties appealed against this assessment under section 18 of the ECO.

44.  The applicant was jointly examined by orthopaeadics experts Dr Johnson Lam (for the applicant) and Dr Chun Siu Yeung (for the respondent) on 23 August 2013.

45.  As concluded in their joint report dated 4 November 2013, Dr Lam assessed permanent loss of earning capacity at 6%.  Dr Chun on the other hand concluded in the light of the medical records that the applicant did not suffer an injury; the MRI cervical spine findings were due to pre-existing degeneration but not a traumatic injury.  He therefore assessed nil loss of earning capacity in relation to an injury.

46.  The applicant argued that Dr Lam’s assessment of 6% should be adopted for purpose of assessing section 9 compensation.

47.  The respondent argued 0% on the basis of Dr Chun’s conclusion.  Its fall back position is 2% in accordance with the Medical Board assessment should the applicant be found to have suffered the injury at work as pleaded.

Injuries, treatment and disabilities

48.  The applicant complained of right neck pain with reduced range of movement radiating to the right arm and thumb with numbness.  A doctor in India certified that he suffered from cervical spondylosis with neuralgia.  He was treated with painkillers, injection and bed rest.  He received physiotherapy and occupational therapy at TMH during April to September 2012.  MRI cervical spine taken on 23 January 2013 revealed a prolapsed C5/6 disc prominently encroaching on the right C5/6 intervertebral foramen, impingement on the exiting right C6 nerve possible.

49.  During joint examination by orthopaedics experts Dr Lam and Dr Chun on 23 August 2013, the applicant still complained of persistent 24 hour pain at the lower neck down to the right thumb side upper limb with electric shock, which has impaired his weight handling capacity.  Physical examination however revealed no abnormal findings such as swelling, deformity, muscle spasm, tightness or wasting.

50.  The experts agreed that there was pre-existing early spondylosis as shown in the MRI, and that there was exaggeration of symptoms in particular the severe limitation of neck movement.

51.  Dr Chun made a diagnosis of spontaneous onset of symptomatic cervical spondylosis due entirely to the degeneration but not the injury as alleged.  On that basis he concluded that there should be no impairment in relation to an injury, thus no loss of earning capacity in relation to an injury.

52.  Dr Lam, on the other hand, accepted the applicant’s report of nil pre-existing neck pain symptoms and noted that there was no medical evidence in support of a significant pre-existing condition requiring treatment.  He accepted that the present symptoms were consistent with the mechanism of the injury alleged by the applicant, though accepting that the severity of the symptoms should not be as bad as that complained of by the applicant.  He attributed the present symptoms mainly to the injury, and assessed permanent loss of earning capacity at 6%, having given a discount for the elements of submaximal effort and degeneration.  He added that the subject injury should account for more than 90% of the present impairment and disability in the neck; the pre-existing cervical spine degenerative changes should account for less than 10%.

The legal principles / Analysis of the medical experts’ evidence

53.  The question as to whether the present incapacity complained of by the applicant was caused by the alleged accident is a matter for the court. The law related to this is well settled and succinctly stated by Hunter JA in Lee Kin Kai v. Ocean Tramping Co. Ltd. [1991] 2 HKLR 232 which he quoted as follows:-

“First causation is essentially a matter for the judge not the doctors. It is a matter upon which the judge will be assisted by the medical evidence but he is not dictated to by it.

Secondly it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be sole cause. The doctors practice what is known as the science of aetiology. In the words of one in particular, they look for ‘clinical cause’, proof certainly beyond reasonable doubt. They are looking for what Lord Kilbrandon called in McGhee v National Coal Board ‘an irrefragable chain of causation’.

Thirdly a judge when considering causation is not entitled, he is bound, to use his common sense, to approach the question in the same way as a juror.  The point was conveniently made in McGhee v National Coal Board which was a case where owing to the limitations of medical knowledge, the plaintiff was unable to prove a strict causal connection between the negligence and his injury.  He failed in the courts below.  The House of Lords agreed that common sense could be used to fill the gap.”

54.  Had I accepted the applicant’s case that the accident as alleged had occurred, I would have found that the present incapacity of the neck suffered by him was caused by the injury sustained in the accident.

55.  Dr Chun has not made an assessment of loss of earning capacity on the basis that there had been an injury.  He however accepted that the applicant with the cervical spondylosis should only be able to return to light wrapping job in the warehouse and should avoid very heavy carrying and lifting or working posture with the neck extended.  His assessment of 0% loss of earning capacity cannot stand upon a finding that there had been an injury on duty.

56.  With regard to the question of apportionment of percentage incapacity between the alleged injury and the pre-existing condition as adopted by Dr Lam in his assessment of permanent loss of earning capacity, it is well settled, as affirmed by the Court of Final Appeal in LKK Trans Ltd v Wong Hoi Chung [2006] 1 HKLRD 980, that on the true construction of the ECO and in particular section 9(1)(b), no room exists for any apportionment to reflect the existence of a pre-existing condition as a concurrent cause of the employee’s incapacity in the event that a causal connection between the accident/injury and the incapacity is established.

57.  Apart from a discount for the pre-existing condition, Dr Lam accepted that there was an element of submaximal effort/ exaggeration of symptoms by the applicant and that the symptoms should not be as severe as he complained.  Dr Lam opined that the applicant should, with more self exercises to strengthen the neck and upper limbs, gradually be able to resume his pre-accident work though it would be sensible for him to lift very heavy objects of say 40-50 kg with the help of co-workers.

58.  It would appear that Dr Lam considered the applicant to be suffering mild disabilities only despite the severe complaints of persistent 24 hours neck pain radiating to the right upper limb with numbness.  He gave no explanation or justification for the assessment of 6% permanent loss of earning capacity, which is much higher than that assessed by the Medical Board, even after discounting elements of submaximal efforts and pre-existing cervical condition. Dr Lam’s assessment, in my view, lacks conviction.

59.  On the overall medical evidence and in particular the absence of any abnormal findings as agreed by the medical experts, I prefer the assessment of 2% permanent loss of earning capacity by the Medical Board.

Compensation

60.  I therefore assess employees’ compensation under the ECO as follows:-

61.  Should I be wrong on my conclusion of no liability, employees’ compensation would be assessed and payable by the respondent at the total sum of $110,569.00, with interest thereon at half judgment rate from the date of the accident to the date of judgment.  

Order

62.  The applicant’s claim herein is dismissed.

63.  Cost should follow the event.  I make a costs order nisi, to be made absolute after 14 days, that the respondent shall have costs of the action against the applicant, with certificate for counsel, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.