LI WAI CHUNG v. THE INCORPORATED OWNERS OF MOONSTAR COURT

DCEC 1129/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1129 OF 2010

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JUDGMENT

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1.  The applicant, Mr Li, was employed to work as the night shift security guard by the respondent at Moonstar Court, 2D Star Street, Hong Kong (‘the building’).

2.  It was the duty of both the day and night shift security guard to patrol the building’s rear staircase twice on their shifts each day.  On or about 3:20 am on 21 October 2008, Mr Li conducted patrol duty from the top floor of the building to the ground floor, he claimed he had an accident and injured his right foot and sprained his back when trying to avoid falling building debris placed against the wall along the stairs.

3.  The applicant’s claim against his employer, the Incorporated Owners of Moonstar Court (‘the respondent’), is for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282.

4.  There were no witnesses to the accident, the respondent denies liability and the extent of the applicant’s injuries.

5.  The issues before the court are:

(a)  How did the accident happen?

(b)  Did the applicant injure both his right foot and back at the accident?

(c)  If he did injure his back at the accident, was it aggravated due to a pre-existing condition?

The applicant’s case

6.  According to the applicant’s evidence, the accident occurred when he was conducting his 2^nd guard patrol at the rear staircase of the building at about 3:20 am on 21 October 2008.  As he reached the staircase landing between the 3^rd and 4^th floors, he found piles of building debris placed along the wall of the stairs and a large bag of debris blocking his access.  As he pushed it out of the way, a wooden door or plank behind the bag of debris became loose and fell over.  He sprained his back in an attempt to avoid it, the wooden door/plank fell on his right foot, injuring his right foot.

7.  After resting at the staircase, the applicant returned to the management office and recorded the accident in the entry book or occurrence book (‘the OB book’).  He informed the day shift guard Tang Cheuk Pang (‘Tang’) about the accident when Tang reported for duty before he went to the clinic of Dr Tse Ng Kan for treatment of his right foot and right big toe. He claimed he tried to call Mrs Leung Lau Pui Wan (“Mrs Leung”), the treasurer of the respondent at 6:30 am but he was not able to get through to her.  He called Mrs Leung again at 10:30 am after Dr Tse gave him 3 days sick leave, again he failed to find her.  He then called up Mr Lau Hon Chiu, the respondent’s secretary, and informed him of the accident, he was given permission for 3 days’ sick leave.  He obtained an extension of 3 further days of sick leave after he consulted Dr Tse again on 24 October 2008.  Even though he was given further sick leave when he consulted Dr Tse again on 1 November 2008, his request for sick leave was refused by Ms Kwong Sau Chun, the respondent’s chairperson.  As a result, he reported for duty but abandoned the second patrol duty of his shift due to his injury between 1–3 November 2008.

8.  The applicant claimed he had complained about building debris and other articles stored at the rear staircase one or two months prior to the accident to the respondent’s secretary Mr Lau, however, nothing had been done about it.

9.  The applicant alleged that his back pain became worse a few months after the accident, he consulted the doctor about his back pain in June 2009 but his later request for time off to consult the doctor was rejected by Mrs Leung.  As a result, he delayed the medical consultation of his back until 8 August 2009 when the pain on his back worsen.  Though Dr Tse referred him to the orthopaedics department of the Pamela Youde Nethersole Eastern Hospital (“the Eastern Hospital”) on 8 August 2009, he was not given leave to seek medical consultation at the Eastern Hospital until after his dismissal on 10 August 2009.  The applicant further claimed he suffered from incontinent but did not tell his doctors because he felt embarrassed.

10.  He was admitted to the Eastern Hospital’s Orthopaedics Ward on 14 August 2009 and received treatments for his back pain.  He was discharged after 10 days.

11.  Subsequently, he received an operation on 29 December 2009 at the Eastern Hospital on his spine.  Unfortunately, in spite of the operation, the deterioration of his back could not be reversed, he now relies on the wheelchair and home help for his daily living.

The respondent’s case

12.  The respondent adduced evidence from the day shift security guard Mr Tang Cheuk Pang and Mrs Leung.

13.  Mr Tang agreed that the applicant did tell him on the morning of 21 October 2008 that he had an accident and injured his foot. He was also told the applicant would be consulting a doctor and requesting for sick leave for the next day.  Mr Tang told him he had to seek approval from the respondent’s committee members.

14.  Mr Tang confirmed that when he conducted his patrol duty at 10:56 am on 21 October 2008, there were around 10 bags of building materials or debris at the rear staircase between the 3^rd and 4^th floor, that they were placed against the wall of the staircase occupying 1/3 of the width of the stairs.  Other than some wooden planks of 2 x 1 feet in size inside some of the bags, he did not see a wooden door amongst the debris at the rear staircase.  He further said that he did not recall the applicant had acted as if he was unwell after he returned from his sick leave at the end of October 2008 up to his departure in August 2009.

15.  Mrs Leung claimed that after the applicant was dismissed, she discovered the security guard’s sign-in book had disappeared. She denied she had refused to approve the applicant’s sick leave, she had only told him to seek approval from the chairperson Madam Kwong.

Medical experts’ reports

16.  According to the medical records produced by the applicant, he had consulted Dr Tse Ng Kan on 21 October 2008 after the accident for his right big toe injury.  He informed Dr Tse his right foot was hit by a fallen wooden beam which missed his trunk, it caused the haematoma and swelling of the right big toe.  He consulted Dr Tse again on 24 October 2008 and 1 November 2008 for the same injury.  He was given 3 days sick leave on each occasion he consulted Dr Tse.

17.  It was not until the applicant consulted Dr Tse again on 8 August 2008 that he complained of progressive numbness and weakness of the left thigh.  He told Dr Tse he had been suffering from it for 9 months.  He was referred by Dr Tse to the Eastern Hospital for assessment.

18.  The medical notes from St Paul’s Hospital on 24 June 2009 recorded that the applicant was admitted for intermittent pain on the right big toe for 3 months.  X rays performed at the hospital showed degenerative changes of the lumbosacral region of his spine.

19.  On 14 August 2009, he was admitted into the Eastern Hospital for numbness and weakness over the left thigh which radiated to the calf.  He told the doctors at the hospital that the symptoms started 6 months before his admission date.  He also told the doctors at Eastern Hospital his back pain began 1 year before and that he had a twisting injury to the foot in October 2008 (see p 302 of bundle).  He was discharged from the hospital on 24 August 2008.

20.  According to the report of Dr Joshua Ko of the Eastern Hospital on 7 May 2010, there was reduced left leg power and wasting of left quadriceps muscle and the MRI scanning performed on 19 August 2009 showed a sequestrated disc over the applicant’s L4/5 intervertebral disc level.  An operation to decompress and relieve the nerve root was recommended by the doctor.  The applicant repeatedly refused to have the operation until December 2009 when there was noted deterioration of the left lower limb.  He was admitted to Eastern Hospital on 28 December 2009 and a diskectomy operation was performed on 29 December 2009 on his L4/5 spinal stenosis and sequestrated disc.  He was discharged on 7 January 2009, but his left lower limb power remained the same as before the operation.  It was recorded that he could walk with a frame on his discharge.  At his follow up clinics and physiotherapy clinic, it was again recorded that the applicant could walk for 30 minutes with a frame.

21.  The joint expert report by Drs Lau Man Tsang Richard and Tsoi Chi Wah Danny set out the full background and medical history of the applicant.  Dr Lau confirmed that the right big toe injury was caused by a fallen wooden beam while the lightning pain in the back was probably a sprain injury to the soft tissues of the back.  It was his opinion that the left sciatica complaint for which the applicant consulted the Eastern Hospital in August 2009 was probably not caused by the accident because the complaint was only made to his doctors 10 months after the date of the accident.  It was his opinion that the prolapsed and sequestrated disc was more likely the result of natural degeneration or due to an unspecified cause.

22.  Dr Tsoi pointed out that there was no medical documentation of any sprained back or lightning sensation before June 2009.  If it was an injury caused by the accident, he would have reported it to Dr Tse or to the St Paul’s Hospital doctor in June 2009.  He did not think the sequestrated L4/5 disc was related to the accident.

23.  Both doctors agreed that it would be difficult for the applicant who relies on the wheelchair to be gainfully employed as he would only be able to perform sedentary work.  They further agreed for the big toe injury, a 3 week sick leave would be appropriate while the sick leave for a spinal surgery would be18 months.

24.  Dr Lau assessed the total impairment to someone with gait disorder and bladder disorder would be 55%.  While Dr Tsoi assessed the sequestrated disc with residual lower neurological deficit to be a 15% impairment to the whole person.  Dr Tsoi did not believe the applicant is wheelchair bound.

Findings on liability

25.  The evidence on the accident in the early hours of 21 October 2008 is supported by the applicant’s visit to Dr Tse on the same day after he went off duty.  It is also supported by the evidence of Mr Tang, the day shift security guard, who took over the guard duty from the applicant at 6:45 am on 21 October 2008.  Mrs Leung, the IOC’s treasurer, gave evidence and admitted she told the applicant to obtain the chairperson’s approval for a further 3 days’ sick leave on 1 November 2008 after he consulted Dr Tse.  The evidence of Mr Tang also confirmed there were bags of building materials and debris at the rear staircase of the building on the day of the accident.  Based on the evidence of the applicant, the respondent’s witnesses and medical records, I am satisfied the accident did take place at the rear staircase of the building while the applicant was patrolling the staircase after 3 am on 21 October 2008 and his right foot was injured by building debris in the form of a wooden plank or beam.

Causation of the applicant’s sequestrated disc at L4/5

26.  I accept the applicant had probably sprained his back when he was trying to avoid a falling wooden plank.  I also believe the sprain injury involved only soft tissues of the back.  As it was not a major concern and did not cause much pain, he did not complain about his back pain at the time either to Dr Tse or his employer.  There was apparently no back pain until June 2009 for 8 months later, he went to St Paul’s Hospital complaining of his right big toe pain, an X ray of his back was taken in June 2009.  It was apparent that the back pain was not serious in June 2009 for he received no treatment for it then.  Furthermore, if the back pain was serious at the accident or soon after, he would have recorded it in the Form 2 accident report to the Labour Department under column J (p 107 of the bundle) on 1 November 2008.

27.  There was no explanation given by any medical expert in this case on the cause of the cauda equina syndrome resulting in the L4/5 sequestrated disc with compression on the cauda equine, save that it was the cause of his back pain and left limb weakness before the operation in December 2009.  According to Dr Lau, the accident probably caused a soft tissue injury of the back, the prolapsed and sequestrated disc was more likely a result of natural degeneration.  In his opinion, the sequestrated disc cannot explain the extensive weakness and diminished sensation of the left lower limb.  He thought there might have been some other unspecified cause for his weakness.

28.  Dr Tsoi noted there was no documentation of any sprain back injury before June 2009 or that the applicant had sought treatments for it until August 2009.  He concluded the back pain and left lower limb neurological deficit was not related to the accident.

29.  Mrs Leung, the IOC treasurer, and Mr Tang, the day shift security guard, both claimed the applicant was seen to be limping after the accident but he was walking in a normal gait shortly after.  They also said he did not tell them he had any health problems and that he had been working as usual up to 10 August 2009.

30.  Based on the witnesses’ evidence and the medical reports, it is clear the applicant did not seek any medical treatments for his back until 8 August 2009 when he consulted Dr Tse for numbness and weakness over his left thigh.  Though he had an X ray of the lumbrosacral spine at St Paul’s Hospital for his right big toe complaint in June 2009, he did not seek treatment for the back pain and thigh weakness.  This tends to indicate the problem was not a serious one at the time.  The degeneration of his back had only become a concern between August and December 2009.  He was advised by the Eastern Hospital Orthopaedics specialists, after the MRI showed the sequestrated disc at L4/5 level, to have a lumbar diskectomy operation to relieve compression on the nerve.  He refused to have the operation until late December 2009 by which time further degeneration had taken place.

31.  According to Dr Lau, he found it difficult to relate the prolapse to an accident ten months earlier in August 2009.  His opinion was the applicant might have had a sprained injury to the soft tissues of the back and the sequestrated disc was more likely the result of natural degeneration.  Dr Tsoi had completely rejected the suggestion of relating the sequestrated L4/5 disc and the associated lower back pain and left limb neurological deficit to the accident.  He did not believe the applicant is wheelchair bound.

32.  Based on the medical records on the applicant and the opinions of Drs Lau and Tsoi, the applicant’s back pain and left lower limb symptoms was developed only a few months before August 2009, this led me to conclude that the applicant’s prolapsed and sequestrated disc was unrelated to the accident though he may have sprained the soft tissues on his back at the accident.  The patrol record book showed he had resumed full patrol duties on 3 November 2008 up to 9 August 2009.  This showed he was able to carry out his work up to 9 August 2009.  There was no leave of absence for medical reason during this period up to the date of his dismissal.

33.  The applicant failed to produce any medical evidence to show the back prolapse and sequestrated disc was caused by the accident and the joint experts, Drs Lau and Tsoi, did not support his claim.  The applicant told Dr Tse on 8 August 2009 he had been suffering from back pain for 9 months, he told the Eastern Hospital orthopaedic specialist on 14 August 2009 that he had been suffering from back pain and related symptoms for 5 months, while on 15 August 2009, he told Dr Mak at the same hospital the onset of back pain was 1 year.  The court is at a loss as to which version is true.

34.  Mr Wong, counsel for the applicant, submitted the fact that the applicant had a pre-existing back condition does not disentitle him from employees compensation if the accident had triggered and aggravated the condition.  He relied on the case of Lee Kin-kai v Ocean Tramping Co Ltd [1991] 2 HKLR 232. 

35.  In the present case, the applicant’s medical records showed it was only in August 2009 that he first sought medical treatment for his back pain and left leg numbness and weakness.  Though he had a back X ray at the St Paul’s Hospital in June 2009 showing degeneration of the lumbro-sacral region of the spine, but no treatment was sought.  After his dismissal by the IOC on 14 August 2009, he told Dr Tse he wanted to lodge a labour claim because he suspected the back pain and left leg weakness was related to the accident 10 months before.  He gave the Eastern Hospital doctors different versions of the history of his back pain with two different dates of the onset of back pain and numbness.  Furthermore, both Drs Lau and Tsoi found the prolapsed unrelated to the accident based on his medical history and the treatment notes recorded by his treating doctors.  On the aforesaid basis, it is questionable if the applicant’s sequestrated disc was caused by the accident.

36.  Further, based on the joint experts’ opinion, that the prolapsed disc could happen spontaneously in the process of disc degeneration (p 251 of the bundle), I am not satisfied the accident was the cause of the damage to the nerves of his spinal canal.  I find the applicant has failed to show the accident had aggravated the degeneration of his back.

Quantum

37.  The parties agreed that:

(1)  the applicant’s monthly income was $6,025;

(2)  an advance payment of $1,047.20 was paid to him;

(3)  out of the applicant’s claim of medical expenses $8,410, $440 was incurred for the right big toe injury on 21 October 2008;

(4)  sick leave for the period: 21 October 2008 to 28 October 2008, 1 November 2008 to 3 November 2008, 14 August 2009 to 2 March 2010, 5 March 2010 to 3 March 2011.

Both the applicant and the respondent are appealing against the certificate of assessment.  I allow the respondent’s appeal.

38.  Based on my findings above on the causation of the sequestrated disc at L4/5, the compensation is based solely on the injury to right big toe caused by the accident.

S 9

39.  The applicant suffered no permanent disability on the injury to the right big toe or to the dorsum of his right foot.  There is therefore no compensation payable.

S 10

40.  Sick leave for the injured right big toe is confined to the period of sick leave allowed for the right big toe which was 11 days, $6,075/30 x 11 x 4/5 = $1,767.33.

S 10A

41.  The medical expenses for the relevant treatments for the right big toe injury was agreed at $440.  I allow this sum.

Summary

42.  

S 10	$1,767.33
S 10A	440.00
Sub-total	$2,207.33
Less advance payment	1,047.20
Total	$1,160.13

43.  Interests at half judgment rate from date of writ to the date of judgment, thereafter at judgment rate until full payment.

Cost

44.  Costs nisi order: costs to follow the event to be borne by the respondent, to be taxed if not agreed with certificate for counsel.  The applicant’s own costs to be taxed in accordance with legal aid regulations.  Should there be no application within 14 days hereof, the order will be made absolute.

Parties: