LIMBU LAXMI PRASAD v. DRAGAGES (HK) JOINT VENTURE

DCEC 1227/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1227 OF 2006

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JUDGMENT

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1.  This is an application for employees’ compensation arising out of an industrial accident on 27 September 2004.  On that day, the Applicant was working in the construction of a tunnel from Sheung Shui to Chau Tau in the New Territories under a Kowloon-Canton Railway Corporation project.  He was instructed by his superior to go into an air-compressed chamber of a tunnel-boring machine together with other workers for certain cleaning work inside.  The chamber was then subjected to increasing air compression during which the Applicant experienced pain in his ears.   Eventually the pressure was reduced and he left the chamber.  After the incident, the Applicant claimed that he suffered pain in both ears and loss of hearing in his right hear, and as a result he commenced the present proceedings to claim for employees’ compensation against the Respondent.

2.  It was the first and the only time that the Applicant was assigned to work in such an environment.  The Applicant had not been assigned by the Respondent to work in an air-compressed chamber anymore since the accident.

3.  The Respondent does not dispute the occurrence of the incident and that the Applicant was his employee at the relevant time.  However according to its expert evidence, the Applicant has not suffered any loss of hearing whether as a result of the accident or otherwise, and so Respondent disputes the Applicant’s entitlement to compensation.  Hence, this becomes the main issue in the present case.

EVENTS AFTER THE ACCIDENT

4.   After the accident, the safety officer of the company referred the Applicant to see the appointed doctor of the Respondent, Dr. Jonathan Wai, and 3 days of medications and sick leave were given.  The Applicant then returned to work for the Respondent for about 18 to 19 days in October 2004.  Despite the certification given by the company doctor of the Respondent, Dr. Ronson Li, on 24 November 2004 that the Applicant was fit to work underground as a skilled worker, the Applicant had ceased working all together since 27 October 2004.

5.  On 24 November 2004, a Pure Tone Audiometry (“PTA”) was performed on the Applicant upon the referral by Dr. Ronson Li, and it was found that the Applicant’s right ear suffered mixed hearing loss with pure tone average of 55 decibel.  In other words, he could not hear sound of less than 55 decibel.  The Applicant also sought treatment from Yan Chai Hospital.  According to the PTA done in the Hospital on 17 February 2005, the Applicant’s left and right ears had a hearing level of 35 and 40 decibel respectively.  The hearing level of a person free from hearing impairment is about 20 decibel.

6.  Apart from the 3 days of sick leave granted by Dr. Wai, the Applicant obtained 4 days of sick leave from 30 October to 2 November 2004 from Yan Chai Hospital.  After that, the Applicant sought treatment from a general practitioner, Dr. Alfred Lo, who issued various sick leave certificates to the Applicant covering the period from 3 November 2004 to 8 September 2005.

7.  On 26 January 2006, the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) assessed the Applicant to have suffered 0% loss of earning capacity as a result of the accident, which was affirmed upon review by the Board in the Certificate of Review of Assessment dated 26 October 2006 (“the Certificate”).  The Applicant appeals against such assessment pursuant to s. 18 of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”).  The Respondent, while not agreeing with the period of sick leave stated in the Certificate, has also lodged an appeal against the same.  The length of the sick leave period would be relevant in assessing the claim for temporary incapacity under s. 10.

EXPERT EVIDENCE

(i) The Applicant’s expert evidence

8.  In the trial, the Applicant testifies himself and maintains that he has been suffering from pain in both ears and loss of hearing in his right ear after the accident.  However, since it is the Respondent’s case that such complaint is not genuine, the creditability of the expert evidence becomes the focus of the present case.

9.  Dr. Ng Tat Yuen, the Applicant’s expert in otorhinolaryngology, examined the Applicant on 6 March 2007.  Based on the result of the PTA conducted by Ms. Margaret Kan, the audiologist, on the same day, Dr. Ng is of the view that the Applicant’s right ear is suffering from moderate to severe hearing loss in the region of 60 decibel.

10.  In the trial, Dr. Ng explains how a PTA is being conducted.  The test would usually be conducted in a sound-proof booth.  The audiologist conducting the test would broadcast sounds of different intensities and frequencies, and the patient would then be asked to indicate whether he or she would be able to hear a particular sound.  It is a subjective test, but as the patient is repeatedly presented with various sounds of different intensities and frequencies, if the patient consistently indicates that he or she cannot listen to a sound below a certain decibel value, the test result would be considered as reliable.  In the present case, the Applicant consistently indicated that he could not hear sounds of different frequencies below 60 decibel, and so both Dr. Ng and the audiologist consider the test result reliable.  They therefore conclude that the Applicant’s complaint is genuine.

11.  When Dr. Ng is being asked about the possibility of malingering, he says that the chance is rather slim.  Unless the patient is smart enough to memorize the intensities of the various sounds broadcasted to him, it would be difficult for the patient to manipulate the result.  Further as compared with the other more objective tests, PTA, if the result is reliable, should be regarded as conclusive about the hearing ability of the patient.  On the other hand, the results of the other more objective tests may be subject to numerous interferences and they are not reliable in helping a medical practitioner in assessing the hearing impairment of a patient.

12.  However, there are some variations in the test results of the different PTAs conducted on the Applicant over a period of time, which can be summarized as follows:

Date of the test	Institution	Result
24 Nov. 2004	Melody Speech & Hearing (referral by D. Ronson Li)	average of 55 decibel in right ear
17 Feb. 2005	Yan Chai Hospital	35 decibel in left ear and 40 decibel in right ear
6 Mar. 2007	Asia Hearing Centre (referral by Dr. Ng)	60 decibel hearing loss in right hear
24 Apr. 2007	Hearing & Speech Therapy Centre (referral by Dr. Simon Wong)	for right ear, 40 to 50 hearing loss at lower and mid frequencies and 50 to 70 hearing loss at high frequencies

13.  Dr. Ng has been asked about such variations.  In his opinion, such variations can be explained by the fluctuation of the barotrauma suffered by the Applicant.  Just like any other sorts of injury suffered by a patient, the condition of the Applicant’s injury might fluctuate from time to time which would in turn affect his hearing impairment.  Hence, Dr. Ng maintains his view that the Applicant’s complaint is a genuine one.

(ii) The Respondent’s expert evidence

14.  On the other hand, the Respondent’s expert in otorhinolaryngology, Dr. Simon Wong, disagrees and he is of view that the Applicant’s hearing is normal for both ears.  The reasons why Dr. Wong comes to such conclusion can be summarized as follows:

(i)	though the result of the PTA performed on 6 March 2007 may appear consistent, such result is inconsistent with those of the other PTAs conducted on the Applicant over a period of time; and
(ii)	the Applicant’s complaint is not supported by the results of the other more objective tests conducted on the Applicant.

15.  I would then elaborate on these reasons.  According to Dr. Wong, there are significant discrepancies among the test results of the various PTAs.  A difference between 43 decibel and 60 decibel is significant because the measurement of sound level is based on log scale and not linear scale.  In other words, sound of 60 decibel would be more than 2 times louder than the sound of 30 decibel.  To give an illustration, Dr. Wong says that the sound of whisper is about 30 decibel, the sound of normal talking is about 60 decibel, the sound in a normal street is about 90 decibel and the sound of a running jet engine is about 120 decibel.  In other words, the discrepancies as shown in the test results are significant.  Further, the first two tests were conducted over a relatively short period of time, and the same was true about the last two PTAs conducted recently in 2007.  In such case, it is very difficult to explain the fluctuation in hearing ability over such a short period of time.

16.  In Dr. Wong’s opinion, for patients who suffer real genuine hearing impairment, their condition should be stable and there should not be great variations in the test results.  In fact, Dr. Wong is not aware of any known medical condition which can produce such significant discrepancies.

17.  The next reason in support of the malingering is that the Applicant’s complaint is not supported by the results of the other more objective tests.  Apart from the PTA, Dr. Wong also conducted other tests and assessments on the Applicant, including:

(i)	Impedance Tympanometry;
(ii)	Acoustic Reflex test;
(iii)	Distortion Product Otoacoustic Emissions (DPOAE) test;
(iv)	Auditory Brainstem Responses test; and
(v)	MRI Brain Scan.

18.  All these objective audiological investigations, including the Brainstem Aiditory Evoked Potentials (BAEO) test conducted at Yan Chai Hospital on 30 June 2006, show that the Applicant’s auditory function is normal.

19.  Dr. Wong does not agree with Dr. Ng that PTA, being a subjective test itself, is more reliable than other objective tests.  The obvious reason is that the result of subjective test can be manipulated by the patient, especially when the patient has done the test before, and it is a bad medical practice to rely on the test result of the PTA alone.  In fact, Dr. Wong points out that the inconsistencies found in the various PTAs undertaken by the Applicant call for the need to conduct other objective tests to verify the hearing ability of the Applicant.

20.  In the trial, Dr. Wong also explains the operation of these objective tests.  Impedance Tympanometry and Acoustic Reflex test conducted on 24 April 2007 were intended to check the middle ear pressure of the Applicant.  Both test results show no abnormality, which means that the eardrum of the Applicant is intact.  This is also consistent with the result of the similar test done at Melody Speech & Hearing on 24 November 2004.

21.  The DPOAE test done on 24 April 2007 was conducted to check the function of the inner ears of both sides of the Applicant.  A sound is broadcasted, and if the inner ear of the patient can detect the sound, a reflex of the inner ear would be recorded.  On the other hand, if the function of the inner ear is impaired, there would be no reflex recorded.  According to Dr. Wong, this is a reliable test to assess the hearing ability of a patient, and the test result shows that the Applicant’s hearing on both sides is normal.

22.  The Auditory Brainstem Responses test conducted at Phonak Hearing Centre was conducted to check whether there was waveform in the nerves in the ears when certain click stimuli was made.  According to Dr. Wong, this is even a more advanced and conclusive test.  The result showed clearly that with a 11.1/s click stimuli, there was a presence of waveform down to 25 decibel in both ears.  This shows that the Applicant enjoys normal hearing on both sides.

23.  Lastly, the MRI Brain Scan conducted on 25 May 2007 confirms that the Applicant is not suffering from any structural damage to either his brain or his ears.

24.  Based on the aforesaid information, the only explanation which Dr. Wong can provide for the discrepancies in the PTAs results is that the Applicant was malingering when he performed those tests, and hence all the test results are unreliable.  The objective tests are, on the other hand, more reliable because the results do not rely on the subjective responses of the patient.  According to Dr. Wong, it is in fact the internationally accepted practice that medical practitioner should get all the information available through both subjective and objective tests before he or she can come to any conclusion about the hearing ability of a patient.  One must examine whether or not the results of the subjective tests match with those of the objective tests.  If not, the results of the objective tests should be preferred as they involve no interference or manipulation on the part of the patient.  Based on the results of all these tests, Dr. Wong concludes that the Applicant’s hearing is normal on both sides.

25.  According to Dr. Simon Wong, barotrauma is a kind of air damage done to the ear.  In most cases, it is a trival condition and the patient can recover fully.  In the present case, Dr. Wong finds no physical injury in the Applicant’s ears, and so the Applicant should have been able to recover within a very short period of time.  Even for a worse case, a sick leave period of 2 to 3 days would be sufficient.

ASSESSMENT OF THE EVIDENCE

26.  In the trial, the Respondent also produces to the court a surevillence tape of the Applicant taken by a private investigator.  The tape shows that the Applicant could listen to conversations without much difficulty in a busy street.  However, as it is the Applicant’s case that only his right ear has suffered moderate loss of hearing and he can still hear with his left ear, I do not find that the behaviour of the Applicant as shown in the tape contradicts his own case.

27.  Ultimately, the result of this case is determined by the creditability of the expert evidence.  After hearing the experts of both parties, I definitely prefer to accept the evidence of Dr. Simon Wong.  In my judgment, he provides a comprehensive analysis of the hearing ability of the Applicant, taking into account the results of the various PTAs and the other objective tests.  On the other hand, Dr. Ng just relies on the result of one single PTA and comes to the conclusion that the Applicant’s complaint is genuine.  I must agree with Dr. Wong that a medical practitioner should rely on more information before assessing the hearing impairment of a patient, and even the doctor at Yan Chai Hospital saw the need to conduct an objective test, Brainstem Evoked Audiometry, on the Applicant on 30 June 2006 with a view to ascertain the latter’s hearing ability.  Dr. Wong’s approach is therefore more scientific and comprehensive, and I have no reservation in accepting his conclusion about the medical condition of the Applicant.  Hence, I find that the Applicant has suffered no hearing loss as a result of the accident.

THE APPLICANT’S CLAIM FOR VARIOUS HEADS OF COMPENSATION UNDER THE ECO

28.  Based on the aforesaid findings, the Applicant has suffered no occupational disease or permanent injury as a result of the accident, and so he is not entitled to claim any compensation for permanent partial incapacity under s. 9 of the ECO.  His appeal against the assessment of loss of earning capacity made by the Board in the Certificate also fails.

29.  The Applicant has managed to obtain various sick leave certificates from Dr. Alfred Lo covering the period from November 2004 to September 2005, and the next issue I have to consider is therefore whether the Applicant, by relying on these certificates, is able to claim any compensation for temporary incapacity under s. 10 of the ECO.

30.  S. 10 (2) of the ECO reads as follows:

“	For the purposes of this section a period of absence from duty certified to be necessary by a medical practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary irrespective of the outcome of the injury.”

31.  There is some uncertainty as to the effect of the deeming provision in s. 10(2).  On the one hand, we have cases which suggest that, in the absence of fraud, the deeming provision is conclusive about the period of sick leave for the purpose of calculating the compensation under s. 10.  On the other hand, we have another line of cases which suggest that the deeming provision is rebuttable.  A good summary of these two lines of cases can be found in the judgment of Deputy Judge Anthony Chow in Siu Fu Yau v. Wong Po Lee Limited & 0rs., unreported, DCEC No. 654 of 2003 (decision on 5 October 2006).  Unless the interpretation of s. 10(2) is clarified by the higher courts, such uncertainty in the law will still continue to exist.  But fortunately for our present case, it is not necessary for me to resolve this particular issue, and so I do not intend to add further confusion in this area of the law by giving additional view.  It is clear that even for the cases which suggest that the deeming provision is irrebuttable, it is subject to an important provisio that there is no fraud involved.  As I find that there was malingering on the part of the Applicant and that his complaint is not genuine, the court is entitled to disregard the sick leave certificates issued by Dr. Lo for the purpose of assessing the compensation for temporary incapacity under s. 10.

32.  Further, I find it particularly odd that Dr. Lo, being a general practitioner himself, had never arranged the Applicant to undertake any test on his hearing impairment, nor did he refer the Applicant to see any specialist.  Despite the specific request made by the Labour Department to the Applicant to produce the medical report by Dr. Lo, no such report has ever been submitted.  On the evidence, all that Dr. Lo had done was to issue sick leave certificates to the Applicant every time when the latter attended his clinic for consultation, and there is no proof that Dr. Lo had given due consideration to the Applicant’s hearing condition before issuing such certificates.  Hence, I find the issuance of the sick leave certificates unconvincing.  Indeed, the Applicant’s own expert Dr. Ng does not share the view of Dr. Lo.  Dr. Ng does not consider it necessary for the Applicant to have a prolonged sick leave of more than 10 months, and instead he accepts a sick leave of 7 days would be sufficient.

33.  The Applicant’s claim for compensation of temporary incapacity is also undermined by his refusal to attend the various medical examinations proposed by the Respondent.  According to the documentary evidence produced by the Respondent, a number of such requests were made in December 2004 and January 2005 but they were all rejected by the Applicant.  Such un-operative attitude and his refusal to work after the accident certainly cast doubt on the genuineness of the Applicant’s case, and I have grave reservation whether his then condition was so serious that justified or warranted a prolonged period of sick leave as claimed.

34.  I therefore accept the evidence of Dr. Wong in this regard.  I find that the Applicant should have been able to work after the 3 days of sick leave granted by Dr. Johnathan Wai, and I disallow the other sick leave granted after 30 September 2004.  As the Respondent has fully compensated the Applicant for the 3 days of sick leave, the Applicant is not entitled to claim any other compensation for temporary incapacity under s. 10.

35.  Finally, I deal with the claim for medical expenses in the total sum of $11,600 under s. 10A of the ECO, mostly in respect of the consultation fees charged by Dr. Alfred Lo.  As I find that the Applicant’s complaint is and was not genuine, it was not necessary for the Applicant to incur such medical expenses.  Even accepting the evidence of the Applicant’s expert Dr. Ng, the Applicant’s condition should have been stable shortly after the accident, and so there was no point for the Applicant to seek other treatment.  In fact, Dr. Lo is not a specialist in otorhinolaryngology and I really wonder what sort of treatment would have been necessary for Applicant for such a long period of time after the accident.  Hence, the claim for medical expenses also fails.

36.  As the Applicant is not entitled to claim for any compensation under the ECO, his claim is dismissed.  I also dismiss the Applicant’s appeal against the assessment made in the Certificate.  On the other hand, the Respondent’s appeal is successful and I disallow the sick leave period stated in the Certificate from 27 October 2004 to 8 September 2005.  Further, I make an order nisi that the costs of this action be to the Respondent with certificate for counsel, which would be made absolute 14 days after the date of the handing down of this judgment.