WONG LAM WEI HOLLY v. HOSPITAL AUTHORITY

DCEC 2755/2021

[2024] HKDC 1372

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2755 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN

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JUDGMENT

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Introduction

1.  This case is concerned with an alleged accident during employment that occurred on 5 January 2020 when the Applicant, an Enrolled Nurse working for the Respondent, sprained her back and suffered injury. By her the Application dated 31 December 2021, the Applicant claims compensation pursuant to sections 9, 10, and 10A of the Employees’ Compensation Ordinance, Cap 282 (the “Ordinance”).

2.  The Applicant was born on 13 April 1990. At the time of the accident, she was 29 years old. There is no dispute her salary for the month preceding the alleged accident was $23,024.

3.  Both liability and quantum are disputed by the Respondent.

The Applicant’s case

4.  It is the Applicant’s case as pleaded and as set out in her amended witness statement that on 5 January 2020 at or about 11:30 am, whilst she was working at the Caritas Medical Centre dispensing medication, she was instructed by her supervisor, a Registered Nurse whose name is Debbie So Hiu Yan (“Debbie So”) to change the bed linen and the pillowcase for a bed-bound patient by herself because the pillowcase and bed linen had been dampened by antibiotic drip. In accordance with Debbie So’s instructions, the Applicant performed the following duties during which her back was sprained:

(i) First, the Applicant stood on one side of the bed and bent forward to roll over the patient to his left and to the side opposite to her such that she could untuck the linens underneath;

(ii) Next, she moved to the right side of the bed in order to insert and tuck in a clean bed sheet for that side;

(iii) After the clean bed sheet was halfway tucked in, she then moved back to the left side of the bed and pulled the clean bed sheet from the other side by running it underneath the patient with one hand while stabilizing the patient his left lateral position with her other hand;

(iv) After having wholly tucked in the clean bed sheet and when the Applicant drew herself up from the flexion position, she was struck by an immense pain over her lower back with radiation to her left lower limb and toes (the “Incident”).

5.  She then went to the nurse station and told Karen Lau, the Advanced Practice Nurse in charge of the ward at the time, and told her that her back was painful after changing a bed sheet, and wished to apply for sick leave. She then went to the Accident and Emergency Department (“A&E Department”) for medical treatment. According to the Applicant, she did mention about the suspected injury on duty at the triage counter but she herself did not know whether the incident could be reported as injury at work. She asked the treating doctor who said it was not within his scope of duty and was reluctant to discuss further.

6.  She was given sick leave for two days. She handed the sick leave certificate to Karen Lau and left the ward. The pain eased a bit after taking analgesics and wearing the prescribed corset. She then resumed work on 7 January 2020. The ward manager Grace Yung asked her about her back condition and she told her about the Incident and her concern that she had injured her back whilst on duty. Grace Yung said the Incident did not amount to injury on duty, and it was very common for nurses to suffer low back pain during work.

7.  According to the Applicant, the low back pain she experienced on 5 January 2020 subsisted but was fairly controlled with analgesics, use of a closet or girdle and physiotherapy, such that she could return to work on 8 January 2020, but her condition worsened over time.

8.  On 28 April 2020, the pain became intolerable and she sought medical treatment and on 29 April 2020 saw an orthopaedic doctor for treatment. She was given sick leave until 27 June 2021.

9.  She eventually made a formal online report of the Incident through the Advanced Incident Reporting System (“AIRS”) to the Respondent through the Central Nursing Department on 23 October 2023.

10.  There is no dispute that she had pre-existing condition over her low back since about mid-2019.

11.  The Applicant was assessed by the Employees’ Compensation (Ordinary Assessment) Board on 21 July 2022 and 28 September 2022. A Form 7 was issued on 12 October 2022 certifying:

“Injury: Back sprain with low back pain;

Sick leave: 5/1/2020 to 6/1/2020; and 28/4/2020 to 27/6/2021;

Loss of earning capacity: 0%”

12.  The Applicant applied for a review and the review board confirmed and maintained the earlier assessment (see Form 9 issued on 7 June 2023). The Applicant now appeals against the assessment pursuant to section 18 of the Ordinance. Meanwhile, the Respondent also appeals against the sick leave period confirmed necessary by the review board.

Joint medical assessment

13.  The Applicant was jointly examined by the parties’ orthopaedic experts, namely Dr Tio Man Kwun Peter for the Applicant and Dr Ko Put Shui Peter for the Respondent on 25 November 2022, and the joint medical report was issued on 13 September 2023. A Supplemental Joint Medical Report was subsequently issued on 4 January 2024. In respect of the occurrence of the alleged accident, the medical experts made the following comments[1]:

“11.2 … As an orthopedic specialist, Dr. Ko would not be in the position to verify about the facts and the veracity about the occurrence of the alleged accident which Ms. Wong alleged to have occurred on 5 January 2020. Interested parties and stakeholders would certainly clarify the details and confirm about the facts and the mechanism of the alleged accident that occurred on 5 January 2020.

Suffice to say, she definitely had previous symptoms of on and off low back pain since August 2019 which was of insidious onset, and on 5 January 2020 she might have increase in back pain during her working hours when she was changing bed linen and pillowcase for a patient.

Dr. Tio opines that it would be up to the court to decide whether there was an injury on duty or not but it would be possible for her to have sustained soft tissue injury to her lower back as a result of the accident on 5/1/2020 when she was changing bedsheet and pillow case for a bedbound patient alone during her employment on top of pre-existing lower back pain.”

14.  In respect of her treatment and sick leave period, the medical experts had the following comments:

“11.4 Treatment and investigation received

Dr. Ko: For Ms. Wong’s pre-existing low back pain for the alleged accident and the possible exacerbation of back pain during her working hours whilst at work on 5 January 2020, conservative treatment should be the mainstay of treatment and this may include a short period of rest, a short course of medication +/- physiotherapy/occupational therapy up to 6-8 months would have been adequate and acceptable. In Ms. Wong’s case and in view of her PT and OT that finished by around mid-2021 Dr. Ko is inclined to recommend acceptance of her treatment and rehabilitation until around mid-2021.

…

11.6 Sick leave period

We opine that the sick leave period as endorsed by Form 7 under Employees’ Compensation Ordinance that is i.e. 5 January 2020 – 6 January 2020 and 28 April 2020 – 27 June 2021 was adequate and acceptable.”[2]

15.  In the report, Dr Ko opines that the Applicant has the diagnosis of low back pain with non-specific on and off radiating symptoms to the left lower limb, whilst Dr Tio is of the opinion that the diagnosis should be soft tissue injuries as a result of the accident with radiation symptom to her left lower limb on top of pre-existing lower back pain.

16.  Dr Ko says that after the alleged injury on 5 January 2020, the Applicant attended different clinics and places for treatment. MRI was carried out on 29 April 2020 and repeated on 8 October 2021, which essentially showed normal findings with no significant abnormality. At the time of the joint assessment, the Applicant complained of on and off left low back pain and on and off sense of numbness in the left lateral 3 toes. Physical examination essentially showed no significant abnormality but only features of inconsistency and likely exaggeration and magnification. Dr Ko says that for the subjective complaints of pre-existing low back pain with possible exacerbation of her symptoms on 5 January 2020 during her working hours, and with the normal MRI, the prognosis is excellent.

17.  Dr Tio further says that with reference to the MRI findings, there should not be any signs or symptoms of nerve compression that was caused by the accident. According to Dr Tio, the Applicant’s complaint of left lower limb numbness should be a form of radiation symptom rather than genuine neurological deficit. Dr Tio says that at the time of the joint assessment, the Applicant was still complaining of residual left side lower back pain, left lower limb weakness, limited left-sided straight leg raising test and subjective numbness and occasional falls. Dr Tio opines that those symptoms were compatible with aftermaths of soft tissue injury to her lower back as a result of the accident. Dr Tio opines that the overall prognosis should be satisfactory with residual lower back pain and left lower limb radiation symptoms from time to time.

18.  Both Dr Tio and Dr Ko are of the opinion that the Applicant’s conservative treatment with rest, medication, physiotherapy and occupational therapy should be considered adequate and acceptable. Dr Ko opines that the Applicant’s condition should have reached maximal medical improvement by around mid-2021 and should not have benefited from any further treatment. Dr Tio also opines that there is no indication for further treatment or investigation for the Applicant’s lower back injury.

19.  Dr Ko notes that the Applicant was promoted to a Registered Nurse since September 2022 after finishing her conversion course and on the basis of the objective findings, Dr Ko opines that the Applicant would be able to continue performing her duties and discharging her responsibility as a full-time Registered Nurse at her full capacity in different positions with no significant impairment of her work efficiency and effectiveness as caused and contributed by the possible residues from the alleged injury on 5 January 2020. Dr Tio also opines that the Applicant should be able to resume her pre-injury job as an Enrolled Nurse with reduced capacity and efficiency.

20.  Dr Ko opines that the Applicant has suffered 0% loss of earning capacity as caused and contributed by the residues from the alleged injury that occurred on 5 January 2020, whilst Dr Tio suggests that not less than 95% of the Applicant’s present lumbar spine condition should be caused and contributed by her pre-existing condition. Dr Tio opines that the Applicant has suffered 3% loss of earning capacity for her back condition of which 50% should be attributed to her pre-existing condition.

The Respondent’s case

21.  The Respondent denies that the Applicant sustained any personal injury by accident during work on 5 January 2020. The Respondent also specifically pleaded as follows:

(a) As per the medical report prepared by Dr Yun Lok Cheung of Viva Medical Centre dated 10 December 2020, the Applicant attended Dr Yun’s clinic on 28 April 2020 and mentioned on and off low back pain for 1 year, namely around April 2019 which was before the Incident. It was stated in the said medical report that there was no history of injury at work.

(b) On 5 January 2020, the Applicant requested to be excused from work without mentioning any specific reasons, let alone any injury or accident at work. Upon being asked by her supervisor, the Applicant alleged that she felt unwell without giving specific details.

(c) When the Applicant attended the A&E Department of Caritas Medical Centre for treatment on 5 January 2020, she did not report any injury at work.

(d) The Applicant was granted sick leave from 5 to 6 January 2020. Thereafter, she resumed duty normally from 7 January 2020 to 27 April 2020 without making any report of any injury and/or accident at work and/or complaints and/or indication of impairment.

(e) The Applicant did not report the alleged accident to the Respondent until 23 October 2020, over 9 months after the alleged accident.

(f) The Applicant had pre-existing back condition well before the alleged accident. Her present alleged conditions should be the symptoms of her pre-existing condition and there was no fresh accident causing such present conditions as alleged by the Applicant.

The law on pre-existing condition

22.  For the purpose of the Ordinance, an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment (see s 5 (4) of the Ordinance).

23.  There is no dispute as to the applicable law in respect of an applicant’s pre-existing condition in this type of cases. The Court of Final Appeal had made it clear that the worker would be compensated in full irrespective of her pre-existing condition if her injury at work falls within the meanings of the Ordinance, see LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103. The court also reiterated in LKK Trans Ltd at paragraph 5 that the obvious object of the Ordinance is speedily and with considerable certainty to provide urgently needed no-fault and compulsorily-insured compensation to injured employees or their families.

24.  As to causation, both parties have referred to the Court of Appeal judgment in Yu Kwok Wa suing by his next friend Lee Tsui Shan v China Telecom Global Ltd [2023] HKCA 75, [2023] 1 HKLRD 1043. At paragraphs 57 to 60, G Lam JA said:

“57.We are not called upon to interpret the different wording found in subsequent UK legislation and it will not be fruitful to try to decipher the precise effect of the change in wording. To the extent that the modern UK cases such as Faulds and Secretary of State for Work and Pensions v Scullion [2010] EWCA Civ 310 refer to the need to identify an accident that is distinct from injury, however, I consider that the same approach is applicable under the ECO. This is the approach evident from authoritative decisions in Hong Kong.

58. In LKK Trans Ltd v Wong Hoi Chung (2006) 9 HKCFAR 103, Ribeiro PJ referred to as uncontroversial the proposition that section 5 of the ECO requires a causal connection between the employment and the accident (so that the accident arises “out of” the employment), and between the accident and injury suffered by the employee.

59. In Sit Wing Yi Sibly, an employee was found slumped on the ground in a toilet at work. He had died before arriving at the hospital, and the body was cremated without an autopsy being performed. The cause of death was unknown. It was argued that as the death was not accounted for by the deceased’s medical history, it was an unexpected event and thus an “accident” within the meaning of section 5 of the ECO; and that since it occurred during his working hours, it arose “in the course of” employment and was therefore deemed, in the absence of contrary evidence, to have “arisen out of” that employment. In the Court of Appeal,^[3] Yuen JA, rejecting the argument, said:

“41. It seems to me that that argument elides the concepts of ‘injury’ and ‘accident’ in the phrase ‘injury by accident’. The unexpected nature of the ‘injury’ itself does not constitute the act or event or occurrence of a mishap which is the ‘accident’. An applicant for compensation must show that there has been an accident that produced the injury (see Fife Coal at 486 and Fenton v Thorley at 453: ‘an unintended and unexpected occurrence which produces hurt or loss’).

42. Death caused by disease alone would not qualify for compensation even if the disease was unknown (and thus unexpected). There would have to be an acceleration of the death by a particular (even if not unusual) act of exertion in the course of employment – in which case the death may be said to have been caused by an accident (Ormond v C D Holmes & Co Ltd at 800). Even if there was an ‘internal accident’, i.e. a physiological change invisible from outside the body (such as a rupture of an aneurysm), it must still have been brought about by ‘an undesigned untoward event happening in the employment’ (Fife Coal p. 488).”

60. In the Court of Final Appeal, Bokhary NPJ, dismissing the appeal, said:

“17. … The expression ‘injury by accident’ plainly encompasses cause and effect, with accident as the cause and injury as the effect. Without a known cause of death, the injury can hardly be found to be an injury by accident. Contending for a concept of accident and injury as one and the same event is to say that cause and effect can be one and the same thing. Axiomatically they cannot. …

21. It is undoubtedly the law that the accident must be distinct from the injury, with the accident being at least a contributory cause and the injury being the effect.””

25.  In the Court of Appeal decision in Lee Kin Kai and Another v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232. Hunter JA, delivering the principal judgment, made the following points:

“First causation is essentially a matter for the judge not the doctors. It is a matter upon which the judge will no doubt 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 the sole cause. The doctors’ practice, what is known as the science of etiology. In the words of one in particular, they look for" “clinical cause”, proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v National Coal Board [1973] 1WLR 1 p 10 “an irrefragable chain of causation”.

Thirdly, a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same way as would a juror. The point was conveniently made in McGhee v National Coal Board which was a case where owing to limitations of medical knowledge, the plaintiff was unable to prove a strict causal connection in the medical sense 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.”

The witnesses

The Applicant

26.  In her evidence, the Applicant adopted her case as set out above and in her amended witness statement. According to her, she was instructed by Debbie So to change the bed linen at around 11:30 a.m. on 5 January 2020 and she sprained her back in the course of the work. When she gave evidence in Court, she sought to correct her amended witness statement by saying that the relevant time should be 10:30 a.m. instead of 11:30 a.m.

27.  In this regard, the Respondent pointed out that according to the medical report of the A&E Department of Caritas Medical Centre, the Applicant attended the Department at 11:51 a.m. on 5 January 2020 complaining of low back pain since 11:00 a.m. on that day. It was reported that she did not recall any injury. In the relevant medical record of the Department, it was also recorded that there was no injury and no trauma.

28.  Likewise, the Respondent says there is also no mention of any sprain injury or back injury in the relevant contemporaneous medical reports from the Department of Family Medicine of Prince of Wales Hospital dated 5 January 2022, the physiotherapy report of Prince of Wales Hospital dated 12 January 2022, the medical reports of the Department of Occupational Medicine of Princess Margaret Hospital dated 26 January 2022 and 18 November 2022, and the medical report of Dr Yun Lok Cheung of Viva Medical Centre dated 10 December 2020 produced in this case.

29.  The Respondent also pointed out that the sick leave certificates granted after the Incident also did not mention that she had suffered an injury at work. The available medical reports and records show that the Applicant had not complained of back injury until 20 May 2020 or 22 May 2020, and she had not complained of back pain after changing linen or bedsheet until 3 August 2020.

30.  It is not disputed that the Applicant has a known history of scoliosis since her adolescence for which she received treatment at Prince of Wales Hospital until about 2007. After discharge from the scoliosis clinic, she continued to suffer from occasional lower limb numbness and muscle tightness. Approaching mid-2019, she had increasing lower limb numbness upon prolonged sitting, accompanied with some occasional onset of lower back pain. As a result, she had to seek more active treatment for the orthopaedic pain by consulting the Staff Clinic and Dr Yun.

31.  In respect of the delay in reporting the matter, the Applicant explained that she initially did not really know whether the incident could be reported as injury at work and that Grace Yung told her it was not and that it was common for nurses to suffer lower back pain and strain injury. She had been hesitant in making a report for various reasons since then until she had the chance to meet one Miss Pang from the Occupational Medicine Unit and Miss Pang told her that the incident could be reported as injury at work then she formally reported it through the prescribed online platform AIRS.

32.  In respect of the evidence of the Applicant, the Respondent has highlighted several points to the Court seeking to demonstrate that the Applicant’s evidence is incredible or unreliable.

33.  First, it is pointed out that in her Application and amended witness statement, the Applicant claims that she was instructed by Debbie So to change the bed sheet and the pillowcase for a bed-bound patient at around 11:30 a.m. on 5 January 2020. In fact, in the earlier report of the alleged accident made by the Applicant to the Respondent through AIRS on 23 October 2020, as well as in the Declaration made by the Applicant to the Labour Department on 11 November 2020, she also stated the relevant time of the occurrence of the accident to be 11:30 a.m.

34.  The Respondent says the truth as to why the Applicant wanted to change her evidence was revealed when it came to re-examination of the Applicant in Court when she then said she realised from the medical record of the A&E Department of Caritas Medical Centre that it was reported that she told the nurse and the doctor that she had low back pain since 11:00 a.m. on 5 January 2020. She therefore said it for the first time in Court that it should be 10:30 a.m. when she was instructed to change the bed sheet and then suffered back injury. This notwithstanding, the Respondent says that when she was further confronted with the fact she had stated in her amended witness statement that at the relevant time, she tried to seek help from other patient care assistants but they were all busy distributing lunch meals, she became evasive and said she could not remember. The change of her evidence in relation to the time of the Incident, the Respondent says, is a subsequent fabrication and reflects negatively on her credibility.

35.  Second, the Respondent says that the Applicant’s evidence that she succumbed to the pressure from Debbie So, her supervisor, to change the pillowcase and bed linen on her own is not credible, as according to the Applicant, she did take the liberty to seek to enlist the help of other colleagues, but they were all busy. Also, the Respondent says it was after Debbie So left the ward after giving her instructions to change the bed sheet, and so it was impossible for the Applicant to have told her that there was no one else who were available to pair-up with her to do the job as alleged by her.

36.  Third, the Respondent says that the Applicant appears to have exaggerated her alleged condition in her amended witness statement when she claimed that she walked with a limp and had to drag her left lower limb across the floor after attending the A&E Department. It would appear to be the Applicant’s claim that she suffered rather serious symptoms and disabilities at the material time. However, the objective evidence tends to show otherwise. She was able to return to work without further sick leave from 7 January 2020 until 27 April 2020. On 13 January 2020 when she attended the Department of Family Medicine of Prince of Wales Hospital complaining of low back pain with lower limb radiation and numbness, examination showed that she walked with normal gait, with limited forward flexion of the back. Range of motion of the hip was full and straight leg raising test was unremarkable. In the circumstances, the Respondent says it would appear that the Applicant’s claim of spraining her back with serious injury on 5 January 2020 is inherently unlikely and inconsistent with objective medical and other evidence.

37.  Fourth, the Applicant says in her amended witness statement that after the accident, she mentioned to Karen Lau that her back was painful after changing the bed sheet and wished to apply sick leave to seek medical treatment. However, the Respondent says this is refuted by the evidence of Karen Lau, who says that the Applicant only indicated to her that she wished to leave the ward without specifying how or where she was feeling unwell. Karen Lau told the Applicant that she could not leave work without any reason, and if she felt unwell, she should go to the A&E Department to see a doctor. Thereafter, the Applicant left the ward after going to see a doctor and returning with a sick leave certificate. It was further pointed out by the Respondent that in this respect, the Applicant has in fact pleaded in her Reply in the common law action that she did not mention about her condition to Karen Lau because she was not sure of her injury. The Respondent says that the real reason of her not telling Karen Lau on that day that she sprained her back while working is that it did not happen.

38.  The Respondent submitted that it is plain that the Applicant’s claim in this connection is inherently unlikely and internally inconsistent. She would change her evidence at different times in relation to the subject being discussed.

39.  Fifth, the Respondent says Applicant’s claim in this case is also refuted by the evidence of Grace Yung. Grace Yung’s evidence is that the Applicant did not mention to her about the alleged accident. It was only after 23 October 2020 when the Applicant reported the alleged accident through AIRS that Grace Yung came to know about the alleged accident. The Respondent says neither did the Applicant complain to Grace Yung, who was the ward manager, when she allegedly reported the accident to Ms. Yung on 7 or 8 January 2020 that Debbie So had given her improper instructions to change the bed sheet.

40.  Lastly, the Respondent says the Applicant’s claim of the injury by accident is inconsistent with and contradictory to the earliest contemporaneous medical reports and records.

41.  One example is that in the medical report of Dr Aaron Lee of the A&E Department of the hospital, it was recorded that the Applicant attended at the department on 5 January 2020 complaining of low back pain since 11:00 a.m. It was specifically recorded that she “did not recall any injury” and there was a past record of scoliosis. The diagnosis was low back pain. The Applicant was given 2 days sick leave and referred to the out-patient orthopaedic clinic of Prince of Wales Hospital. And according to the referral letter dated 5 January 2020, the reason for referral was “[s]coliosis” and the referral information contained “low back pain with radiation to left lower leg”, “lumbar spine in August shows scoliosis with apex at L3”, “on self purchased corset without much improvement”. Apparently, that the Applicant was on self-purchased corset without much improvement should be what she told the doctor. The Respondent says this tends to show that the Applicant was at that time troubled by her pre-existing problem instead of having an accident causing injury to her.

42.  The Applicant says that on 5 January 2020 she did mention to the treating doctor that she suspected of injuring her back on duty and enquire whether she should take further action in making report of a workplace accident. However, the doctor then told her that it was not within his scope of duty and was reluctant to discuss further on the issue of injury on duty. However, instead of omitting to state such important information in the medical report and record as alleged by the Applicant, the doctor actually recorded specifically that the Applicant “did not recall any injury”, which is contrary to the Applicant’s claim. And the doctor also referred the Applicant to the orthopaedic specialist for the Applicant’s pre-existing scoliosis with the detailed information apparently provided by the Applicant that she was on self-purchased corset without much improvement.

43.  In the circumstances, the Respondent submitted that the Applicant cannot explain away the earliest contemporaneous A&E medical report and record which are contradictory to and inconsistent with her claim.

44.  Another example is that the Applicant gave oral evidence confirming that on 28 April 2020, when she consulted Dr Yun for treatment, she did not tell Dr Yun that she had an accident on 5 January 2020 causing her back injury. The Respondent says this is firstly inconceivable as it is the Applicant’s own case that her condition had worsened because of her injury suffered on 5 January 2020. This is also contradictory to and inconsistent with Dr Yun’s medical record relating to the consultation on 28 April 2020 and also his referral letter of the same date to the orthopaedic surgeon specialist in which it was stated that the Applicant had been seen at the A&E Department before. When cross-examined about this, the Applicant was not able to offer any plausible explanation as to why Dr Yun would so state and record.

45.  Further, the Respondent also says that whilst the Applicant had said in her evidence that she had told her private orthopaedic surgeon, Dr Chiu Wing Fat at the Precious Blood Hospital on 29 April 2020 that she had an accident in January and had attended A&E Department for back pain, this was not reflected at all in Dr Chiu’s records. Under cross-examination, when the Applicant was referred to the medical records of Dr Chiu, she then agreed that she did not tell Dr Chiu on 29 April 2020 about her alleged injury in January 2020. She said that she only told Dr Chiu subsequently when she attended Dr Chiu’s clinic for the MRI scan results subsequently.

46.  The Respondent submitted that weighing everything in the round, the evidence shows that instead of having had an accident on 5 January 2020 as alleged by the Applicant, she had been suffering from on and off lower back pain with left lower limb symptoms since mid-2019 and she had the worst onset in her life-time towards the end of April 2020 such that she had to receive more active and intensive treatment and take substantial sick leave. Her low back pain and lower limb symptoms are the result of her pre-existing back condition which had been troubling her before the accident, and unrelated to and not caused by the alleged Incident[4].

Ng Wing Chi

47.  The witness statement of Ng Wing Chi, a Registered Nurse working under the employment of the Respondent at the material time, who explained how the online reporting platform AIRS can be assessed, the contents of the “injury-on-duty” report form, and the role played by the ward manager in reporting on-duty injuries through AIRS, was agreed by the parties without having to call the witness.

The Respondent’s witnesses

48.  The Respondent called 3 witnesses in order to challenge the occurrence of the alleged incident by alleging, inter alia, the following:

(1) Debbie So did not instruct the Applicant to change the bed linen immediately and single-handedly and that Debbie So merely instructed her to deal with the wet linen;

(2) The Applicant did not tell Karen Lau that she had lower back pain while changing linen in the morning of 5 January 2020. Karen Lau alleged that the Applicant told her she wanted to leave the ward without telling her the reason but Karen Lau told her to go seek medical treatment from the A&E Department. Karen Lau did not know the Applicant’s reason for taking 2 days sick leave until October 2020;

(3) The ward manager, Grace Yung, was not aware of the Incident. Grace Yung denied any conversation with the Applicant about her back upon her resumption of work on 7 January 2020 (later changed to 8 January 2020) and denied ever having told the Applicant that the Incident did not constitute injury-on-duty and that it was common for nurses to suffer lower back pain at work.

49.  Their evidence, in substance, relates to the provision of proper instructions and safe system of work which are of relevance for the purpose of these proceedings. The Respondent, nonetheless, seeks to rely on their evidence to cast doubt on the credibility of the Applicant.

50.  The Applicant says all three witnesses have no doubt aligned themselves together and attempted to give a consistent and in some respects identical evidence to persuade the Court to accept their evidence. The Applicant says their evidence has been shown to be inconsistent, self-contradictory, bias, and tailored to suit their own purpose.

51.  The Applicant submitted one of the more obvious examples is when the three of them intended to refute the Applicant’s allegations of insufficient staff and everybody was very busy on 5 January 2020, they confirmed in their evidence that there was sufficient staff and that apart from the Applicant there was no one else on sick leave on 5 January 2020. When it was pointed out to them that even according to the Duty Roster, there was indeed another nurse by the name Chau who was also on sick leave, none of them was able to provide any explanation.

52.  The Applicant also says their evidence has to be considered with caution. They certainly have their own reason for not telling the Court the whole truth. It could well be that instructing the Applicant to change the bed linen for a bed-ridden patient single-handedly was against the safe and proper practice and that might attract criticism, negative comments or even punishment if the Applicant had indeed suffer injury as a result.

53.  The more important disputed fact is whether Debbie So had instructed the Applicant to change the linen by herself alone. Debbie So denied it. The Applicant says that if one looks at Debbie So’s witness statement closely, one can immediately see that she has been very evasive about it. Debbie So had carefully chosen the words and stated that she had only instructed the Applicant to deal with the patient’s wet linen and suggested the Applicant could place a disposable anti-leak mat on the wet area instead. She deliberately avoided the word “instructed her to change the patient’s bed linen” until she was asked by the Court to confirm specifically whether she had instructed the Applicant to change the bed linen which she finally agreed she did.

54.  Debbie So maintained her denial of ever having instructed the Applicant to change the linen immediately and change it by herself. In cross-examination, she initially insisted that there was no urgency and changing bed linen is not urgent until she was shown her own hand-written statement describing that the fluid had leaked and soaked through the linen and pointed out to her that the patient was bed-ridden. Even then she maintained her insistence of no urgency until the Court pointed out to her the well-being of the bed-ridden patient. She then made some concession by agreeing that it should be done as soon as possible.

55.  Also, the Applicant submits that Debbie So’s insistence that it was impossible for the “ward assistants” to refuse to offer help even when they were busy performing their own task at that particular moment shows that she is biased and her evidence is tailored to suit her own purpose. It was only after some great effort in getting Debbie So to tell the Court more about her conversation with the Applicant at the time, she reluctantly agreed in cross-examination that she might have said to the Applicant during the conversation “你自己整濕就自己 pickup 番” (i.e. she should pick up the matter herself as she was the one who caused the dampening of the bed sheet).

56.  As regards Grace Yung’s evidence, the Applicant submits that her denying ever having asked about the Applicant’s low back when she resumed work was inherently improbable. Yung had the duty to assign work to the nurses. If one of them had resumed work after sick for two days for lower back pain, it would be her duty, as the ward manager, to find out how serious the pain was and whether she had recovered so that the appropriate type of work could be assigned to the nurse.

57.  Co-incidentally, Grace Yung in cross-examination admitted that she did hold the opinion that it was common for nurses to suffer from lower back pain during their work. The Applicant says this is exactly what the Applicant said Grace Yung had told her when the Applicant mentioned to Grace Yung her concern that the Incident was injury-on-duty. It shows it is very probable that Grace Yung did have the conversation as the Applicant described her witness statement.

58.  Further, there is no dispute that the Applicant was advised by Karen Lau to seek medical treatment from the A&E Department in that morning but Karen Lau said the Applicant did not say she was feeling unwell. The Applicant says if that was the case, it is quite inconceivable that Karen Lau would advise her to go seek medical treatment from the A&E Department. Karen Lau also denied that the Applicant had told her about the Incident and she even denied any knowledge about the reason why she was given sick leave for two days.

59.  On the other hand, the sick leave certificate stated clearly the diagnosis was lower back pain and that the Applicant handed the sick leave certificate to Karen Lau personally. Despite Karen Lau was the nurse in charge of the ward and it was her duty to deal with nurses’ sick leave applications, Karen Lau claimed that she deliberately did not look at the contents of the sick leave certificate because of privacy concern.

60.  Karen Lau claimed that she did not know the Applicant’s lower back pain on 5 January 2020 throughout the whole period until October 2020 when she was informed by Grace Yung about the alleged Incident. Karen Lau maintained her story and denied ever having reported to Grace Yung that the Applicant had lower back pain while on duty and went to A&E for medical treatment and was given two days sick leave on 5 January 2020. The Applicant says this is contradicted by Grace Yung who had confirmed that on 6 January 2020, when Grace Yung returned to work, Karen Lau reported to her that the Applicant had lower back pain while on duty and went to the A&E Department for medical treatment and was given sick leave on 5 January 2020.

61.  The Applicant submits that the evidence of the three witnesses called by the Respondent was inherently incredible and self-contradictory. If the witnesses were shown to have tailored their evidence to suit their own case, their evidence should be treated with great caution and not be accepted at face value.

62.  On the other hand, the Respondent says that for the evidence of Grace Yung and Karen Lau, although there are matters which they could not recall accurately because of lapse of time, it cannot be denied that they are also frank and honest witnesses.

Discussion and ruling on liability

63.  The parties basically agrees that apart from a consideration of the medical evidence, this case hinges to a large extent on the credibility of the witnesses, especially that of the Applicant, in terms of the happening of the Incident.

64.  The Applicant says in the absence of any contrary evidence regarding the Incident, there is simply no factual basis for the Respondent to dispute the occurrence of the incident. The Applicant referred to a passage from the judgment of Suffiad J in Chong Ha Kui Tai v Multicon Engineering Company Limited (in liquidation) and Others, HCPI 1168/2002, 28 September 2005, where defence counsel sought to challenge the occurrence of the accident alleged by the plaintiff:

“13. …in a civil matter, where the standard of proof is on balance of probabilities, it is very seldom if at all that cross-examination alone showing up minor discrepancies and inconsistencies would be sufficient for a court to wholly reject and to disregard the evidence given by a witness short of some major concessions made by the witness.”

65.  In this case, what is not disputed is that the Applicant did attend the A&E Department on 5 January 2020 complaining of low back pain, and that this was after the time when the Applicant completed her work in changing the bed linen and pillowcase for the patient. The fact that the Respondent was able to point out a number of inconsistencies in her evidence, e.g. as to the time of the instructions given to her by Debbie So and the alleged happening of the Incident, and whether she did in fact succumb to the alleged pressure given by Debbie So to change the pillowcase and bed sheet on her own, I do not think that such inconsistencies are sufficient to displace the evidence of the Applicant entirely to the extent that I should hold that the Incident did not happen. This also applies to the allegations of exaggeration of her condition.

66.  As for the fact the medical record made by the doctor at the A&E Department on 5 January 2020 recording specifically that the Applicant “did not recall any injury”, which is contrary to the Applicant’s claim, I do not accept that the record alone can rule out the possibility that the Applicant had not suffered an injury. The fact remains that the Applicant did suffer from low back pain on that day during work time, and had to attend the A&E Department and obtained sick leave for two days. In any event, I accept the Applicant’s evidence regarding what she had told the doctor at the A&E Department. In my assessment, in any event, there is a real possibility of an absence of clear communication between the Applicant and the doctor at the time, whilst the Applicant might not have had a perfect grasp of the situation concerning whether she had suffered an injury at work for present purposes. Thus, I do not think the inconsistency between the record of the doctor at the A&E Department with the Applicant’s claim would be fatal to the credibility of the Applicant.

67.  In respect of the Respondents’ witnesses, I do not find that their evidence has any determinative bearing on the central issue of this case, save for matters of credibility, suffice for me to say that I have reservations about their evidence concerning what the Applicant has said to them, and what instructions had been given by Debbie So to the Applicant at the material time.

68.  Despite Mr Chan for the Respondent has done everything he could to raise doubt on the Applicant’s evidence, on the balance of probabilities, I accept the Applicant’s evidence that the Incident did occur, and she had indeed suffered injury during her work.

69.  In the present case, as Mr Sham for the Applicant has submitted, the Applicant had to adopt a bending posture to change the linen which lasted as long as 10 minutes. She was struck by an immense back pain when she drew herself up from that bending position. Although she had a pre-existing back condition, she confirmed that that was the only occasion her lower back pain appeared in that morning. I agree with the Applicant that it is obvious that her pre-existing lower back pain was triggered, contributed to or accelerated by the act of her work.

70.  Thus, on the basis of the Applicant’s description of the Incident, it is a work-related injury within the meaning of the Ordinance. For the purpose of the Ordinance, the employee is entitled to full compensation despite part of the injury was caused by her pre-exiting condition.

71.  I therefore find the Respondent liable to pay compensation to the Applicant under the Ordinance in respect of the Incident.

Section 18 Appeal

72.  By a Notice of Appeal dated 1 November 2023, the Applicant appeals against the Assessment of the Board under the Certificate pursuant to Section 18 of the Ordinance.

73.  By a Notice of Appeal dated 17 October 2023, the Respondent appeals against the decision/assessment of the Board under the Certificate pursuant to Section 18 of the Ordinance and calls upon the Court to assess the period of absence necessary as a result of the alleged injury after hearing the Respondent’s medical evidence.

74.  In the joint orthopaedic report :

(a) Dr Tio opines that the loss of earning capacity suffered by the Applicant should be 3% with 50% of her current disability apportioned to her pre-existing condition;

(b) Dr Ko opines that the Applicant suffered 0% loss of earning capacity that was caused and contributed to by the residues from the alleged injury with at least 95% of her present lumbar spine condition being caused and contributed to by her pre-existing condition;

(c) both Dr Tio and Dr Ko are of the opinion that the sick leave period from 5 January 2020 to 6 January 2020, and from 28 April 2020 to 27 June 2021 was adequate and acceptable.

Relevant principles in Section 18 Appeal

75.  Section 18(3) of the Ordinance provides:

“(3) On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit.”

76.  In Chan Kit v. Sam Wo Industrial Manufactory [1989] 1 HKC 115, Hunter JA said at 118D-E as follows :

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.”

77.  In Chu Chin Yiau v. Ray On Construction Co. Ltd. [1992] 1 HKC 246, Deputy District Judge Bharwaney (as he then was) referred to Chan Kit and said at 248 G-I :

“In fact, whether an appeal is lodged pursuant to s18(1) or application made for compensation under s9 or, indeed, both procedures resorted to at the same time, it is clear that a court approaching the matter has to start afresh, relying not only on the certificate of the Board but also on any other evidence, especially medical evidence, adduced before it to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work …”

78.  In Chan Yuet Keung v. Harmony (International) Knitting Factory Ltd. [2010] 5 HKLRD 599, Bharwaney J has clarified at paragraphs 53-60 that while expression of earning capacity in percentage terms was unhelpful in the assessment of damages at common law, expert opinion on the percentage of loss of earning capacity is helpful and admissible in employees’ compensation proceedings.

The expert orthopaedic opinion evidence

79.  In paragraph 11.3 of the joint orthopaedic report, Dr Ko says that after the alleged accident, the Applicant attended different clinics for treatment. MRI was done on 29 April 2020 and repeated on 8 October 2021, which essentially showed normal findings with no significant abnormality. According to Dr Ko, these MRI reports confirmed that there were no features suggestive or suspicious of any elements that would have possibly caused any nerve root compression, impingement or radiculopathy. Thus, the Respondent says although the Applicant gave descriptions of on and off lower limb radiating symptoms during her treatment, these MRI records could not possibly be considered as any significant symptom generator.

80.  Further, Dr Ko says that while the Applicant complained at the time of the joint assessment that she had on and off left lower back pain and on and off sense of numbness in the left lateral 3 toes, physical examination essentially showed no significant abnormality but only features of inconsistency and likely exaggeration and magnification.

81.  In this connection, the Respondent referred the Court to Dr Ko’s comments that :

(a) the Applicant’s demonstration of generalized weakness in the left whole lower limb by grade 5-/5 cannot be explained by the 2 MRI reports;

(b) during straight leg raising test, the right side demonstrated normal findings up to 90 degrees. While the left side was up to only 70 degrees and the Applicant complained of anterior thigh and knee pain and tightness, this is, according to Dr Ko, not a positive neurotension sign on straight leg raising test and does not have any corresponding findings from the 2 MRI reports as well; and

(c) while the Applicant complained of anterior thigh pain and tightness in the left straight leg raising on 70 degrees, there was no active complaint on sitting flip test 90 degrees left and right side.

82.  In the circumstances, the Respondent says that Dr Ko refers and relies on objective medical evidence including the MRI examination findings and the physical examination findings before reaching the conclusion that there was exaggeration and magnification of symptoms and disabilities on the part of the Applicant.

83.  Further, Dr Ko also points out in the joint orthopaedic report that from the findings of the orthopaedic clinic of Prince of Wales Hospital at the Applicant’s follow-up on 3 January 2022, the Applicant’s left lower limb radiating pain and numbness had grossly resolved with only minimal residual symptoms and she could walk for 2 hours without any lower limb weakness. Hence, Dr Ko says that the prognosis is excellent, and on that basis, Dr Ko assesses the Applicant to be suffering from 0% loss of earning capacity.

84.  The Respondent also says that while Dr Tio says the Applicant’s complaints of residual left side lower back pain, left lower limb weakness, limited left-sided straight leg raising test and subjective numbness and occasional falls were compatible with aftermaths of soft tissue injury to her lower back as a result of the accident, it does not appear that Dr Tio is able to refer to any objective medical evidence to support the Applicant’s subjective claims.

85.  Referring to the Applicant’s subjective complaints of left lower limb weakness and sensory loss of her left 4^th and 5^th toes, Dr Tio agrees that there was no objective sign to suggest any genuine neurological deficit. As to the Applicant’s subjective complaint of left lower limb numbness, Dr Tio also agrees that the MRI findings do not show any nerve compression to account for the same. Nevertheless, Dr Tio says that the Applicant’s complaint of left lower limb numbness should be a form of radiation symptom rather than genuine neurological deficit. In other words, the Respondent submitted that Dr Tio simply accepts the Applicant’s subjective complaint and provides a possible explanation of radiation symptom although such a complaint cannot be supported by the objective medical evidence.

86.  In the light of the above, I agree with the Respondent’s submission that the Court should prefer the opinion evidence of Dr Ko and confirm the assessment of the Board that the Applicant suffered 0% loss of earning capacity in relation to the accident.

87.  As for the sick leave period, as the parties’ experts have agreed on the sick leave period assessed as necessary by the Board, I would not disturb the assessment.

Quantum of Compensation

88.  The Applicant’s earnings for December 2020 (the month preceding January 2020) was $23,024 which is higher than the average earnings for the past 12 months. $23,024 should be adopted for calculating the claims for sections 9 and 10.

Section 9 compensation

89.  As to the claim for loss of earning capacity, the Applicant was aged 29 at the time of the accident. Hence, under section 7 of the Ordinance, a multiplier of 96 is applicable. However, as I have confirmed the assessment of the Board that the Applicant suffered 0% loss of earning capacity in relation to the accident, the calculation would be as follows:

$23,024 × 96 × 0% = $0

Section 10 compensation

90.  The Applicant submitted that as for the appropriate sick leave period, both experts agreed that the sick leave period as endorsed by Form 7 under the Ordinance, that is from 5 January 2020 to 6 January 2020 and from 28 April 2020 to 27 June 2021, was adequate and acceptable. There is no contrary evidence being adduced by the Respondent and it should be allowed in full.

91.  Section 10(1) and (2) of the Ordinance provide that where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments, or a lump sum calculated accordingly, at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning during the period of the temporary incapacity after the accident. And for the purposes of that section, a period of absence from duty certified to be necessary by a registered medical practitioner, 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.

92.  The Court of Appeal has confirmed in Yu Tat Kam v. Chu Tung Shing & Another, CACV 25/2008 and Kan Wai Ming v. Hong Kong Airport Services Ltd. [2011] 3 HKLRD 497 that the presumption under Section 10(2) of the Ordinance is a rebuttable statutory presumption. The burden is on the employer to rebut that presumption.

93.  In Pak Sai Ming v. JV Fitness Limited, DCEC 494/2014, 17 June 2016, the Court held at paragraph 7 that :-

“…. the presumption in s10(2) of Cap 282 relates to the ‘period’ of absence certified to be necessary, not the ‘cause’ of the absence. In order for an injured employee to receive compensation under s10(1), it is a pre-condition that the temporary incapacity, whether total or partial, “results” from the injury. Therefore, the injured employee still has to establish causation …”

94.  In the present case, I agree with the Respondent that neither Dr Tio nor Dr Ko seeks to distinguish the Applicant’s sick leave that was caused by her pre-existing low back pain from her sick leave that was caused by the accident. In this connection, after the Incident on 5 January 2020, the Applicant was granted only 2 days sick leave. Thereafter, she returned to work without taking any further sick leave until only 28 April 2020. I agree with the Respondent’s submission that the sick leave period attributable to the injury in this case should be 2 days only.

95.  Thus the section 10 claim should be calculated as follows:

$23,024.00 ÷ 30 x 2 days x 4/5 = $1,228.00.

Section 10A compensation

96.  In respect of s 10A medical expenses, the Applicant claims for a total sum of $5,920. I agree with the Respondent that the Applicant has not discharged her burden of proof in showing that her medical expenses incurred on and after 29 April 2020 were caused by the injury by accident on 5 January 2020. There should therefore be no award for Section 10A compensation in this case.

97.  There is no dispute that the Applicant already received a total of $159,080.38 for her periodic payments for which she has to give credit. Given this and my ruling on quantum above, there should be no award in this case.

Judgment

98.  As I have stated above, there should be no award in this case.

99.  I make an order nisi that the Applicant is entitled to costs of the action, including any costs reserved, with certificate for counsel to be taxed if not agreed. The Applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

100.  Lastly, it remains for me to thank counsel for their helpful assistance.