Tse Lai Sing v. Tung Wah Group of Hospitals

DCEC 1754/2016

[2021] HKDC 643

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1754 OF 2016

--------------------------

-------------------------

Coram: His Honour Judge H. Au-Yeung in Court

Dates of Hearing: 26 – 27 April 2021 and 17 May 2021

Date of Judgment: 31 May 2021

----------------------

JUDGMENT

----------------------

INTRODUCTION

1.This is an employees’ compensation claim arising out of an accident which happened on 11 March 2016, made pursuant to the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”).  Interlocutory Judgment on liability had been entered in favour of the applicant by consent on 13 September 2016. 

2.This is the trial for the assessment of compensation payable to the applicant.

INJURIES AND TREATMENT

3.At the material time, the applicant was employed by the respondent as a personal care worker at Jockey Club Kin Yat Home in Aberdeen.

4.On 11 March 2016 at around 5:45am, she injured her back while she was moving a female resident to a wheelchair.  According to what she told the orthopaedic experts, although she felt back discomfort at that time, she had continued to work until the normal off-duty time that morning.  She also worked as usual on 12 March 2016.  It was only when she had intolerable pain in the night of 12 March 2016 that she went to the Accident and Emergency Department (“A&E”) of Pamela Youde Nethersole Eastern Hospital (“Eastern Hospital”) for treatment.

5.At the A&E of the Eastern Hospital, the applicant complained of low back pain with radiation to her right lower limb. Physical examination revealed that there was decrease in performance in her right leg straight leg raising test (“SLR”).  There was also numbness and weakness of her right lower limb.  The provisional diagnosis was acute prolapse disc with nerve root impingement and she was admitted to the Department of Orthopaedics and Traumatology (“DOT”) on 13 March 2016 for further treatment.

6.At the DOT, the applicant complained of paraspinal tenderness over her lower back.  She also stated that she had right shoulder pain.  There was slightly reduced sensation over her right lower limb.  SLR was positive on the right side at 80 degrees.  She was treated with analgesics, gabapentin and physiotherapy and was discharged on 14 March 2016.  She was then followed-up at the out-patient clinic of the DOT.

7.The applicant had received Chinese medicine and acupuncture treatment since 14 March 2016.

8.MRI of the applicant’s lumber spine showed mild degenerative change with no compression of neurological structures. 

9.The applicant started her physiotherapy treatment on 17 March 2016.  On initial assessment, the applicant complained of pain over her back, right lower limb and right shoulder.  She had attended 23 sessions in total in this course of treatment.  She had the last physiotherapy session on 29 September 2016, and was discharged with home exercise and advice after medical consultation with doctor’s agreement.

10.On 28 July 2016, the applicant attended the clinic of the Department of Psychiatry of Eastern Hospital in the light of her unstable emotion.  She attended regular treatment since then thereat. 

11.The applicant had also sought assistance from the Department of Clinical Psychology of the Eastern Hospital upon the referral of the Medicine Department of the same hospital. 

12.On 4 August 2017, the applicant was seen at the Pain Clinic of the Eastern Hospital.  In September 2017, she was seen by a psychiatrist, who suggested hospital admission for medication titration, but that was declined by the applicant.

13.On 7 August 2017, the applicant started her second course of physiotherapy treatment.  On initial assessment, she complained of, among other things, pain over her right lower back and right lower limb. She had altogether attended 8 treatment sessions and the last session took place on 20 October 2017. 

CREDIBILITY OF THE APPLICANT

14.In the present case, the applicant’s main complaints are pain and psychiatric illness. These are matters which may not be able to be verified objectively easily.  As pointed out by Mr Cheng for the applicant, “a patient’s psychiatric condition is very much dependent on the expression of subjective feelings without much forensic verifications”[1].  It is thus important for the court to consider all evidence carefully and find as a matter of fact whether the applicant has exaggerated her alleged problems.

15.Although the injury which the applicant suffered on 11 March 2016 was not serious at all, according to the applicant’s evidence, her physical condition had been greatly affected.  She said that since the accident, in all these years, her condition had not improved and she had been under great pain all along.  If the pain scale is from grades 1 to 10 (with “10” being the most severe degree of pain), she rated her pain severity (without pain killer) as at March and June 2016 at “8” and “7” respectively.  Even the taking of pain-killer could not assist much, and she rated her pain at “7” despite the taking of such medicine.  She said that her condition now is even worse, because she is taking more medicine now as compared to 2016.

16.I am afraid I cannot accept the applicant’s evidence.  It is my finding that she has exaggerated her pain and her psychiatric condition.  My reasons are as follows:

(1)  In the physiotherapy report dated 27 January 2017, it was stated that: “After 23 treatment sessions, her back and shoulder condition was improved.  Subjectively, there was 50-60% improvement.  Pain over her back and shoulder was decreased.  Numbness over her right lower limb was improved.  There were some progressions in range of motion of her back and right shoulder as well as the muscle power of right lower limb”.  There is no reason why I should not accept that the percentage of improvement was given by the applicant herself at the last physiotherapy session in the first course of physiotherapy treatment on 29 September 2016.  However, in her witness statement and her evidence given in court, the applicant denied that there was any improvement at all.  In my view, the applicant was trying to hide the fact that her condition had improved so as to support her case. 

(2)  The applicant alleged in court that she had to use a walking stick all the time, even when she was at home, and the only time when she did not use a walking stick at home was when her husband was holding her.  This is different from what she told the orthopaedic experts: she told them that “She used a stick for going out but not at home”[2].  Further, I have serious doubt whether she really needed her walking stick at all as alleged, as it can be seen from the surveillance evidence that she could walk without her walking stick when she was worshipping at the Wong Tai Sin Temple. 

(3)  Many complaints in the applicant’s witness statements are new and had never been mentioned to the treating doctors or orthopaedic experts before, for example, complaints about left leg pain and numbness, left foot sensation, knees pain which affected mobility, incontinence, back of the head pain, etc. Mr Cheng argued that the applicant might have informed the orthopaedic experts about her problems, and it might only be because the experts considered that those problems were not related to the accident that they did not record them in the Joint Orthopaedic Experts Report.  I do not accept this explanation, because it can be seen that the experts had recorded in the said report many other injuries which they considered unrelated to the accident.  In my view, if the applicant really had all those problems which she had included in her witness statement, she would have mentioned them to the treating doctors and the experts.  She had made these up in her witness statement to bolster her case.

(4)  From this court’s observation, when the applicant’s evidence was challenged in court, for example, when it was put to her that she had never told treating doctors or medical experts about certain complaints, she would answer most of the time that she could not recall; however, when she was asked to confirm that she did tell the experts about complaints which had been recorded in the expert reports, she would, at most of the time, confirm.  The applicant has thus impressed this court as a person who had avoided questions which could lead to answers that might be unfavourable to her. 

(5)  The applicant apparently wanted to give the court an impression that she had minimal activities after the accident.  She said she rarely went out apart from seeing the doctor.  However, it is evident that she did go out for “yum cha” with her family members on 9 June 2016.  When she was cross-examined about it, she conveniently answered that she could not recall about it.  It is simply incredible.  If she had really gone out so rarely, she would not have forgotten about it.  Mr Cheng reminded this court that it should be cautious when considering the surveillance evidence because it only revealed a partial and selective picture of the applicant’s activities: only 15 days out of a 7-month period back in 2016.  He also said that there might have been a change in her life pattern thereafter given her persistent physical problems.  However, since the applicant had told the psychiatric experts that all her pre-accident activities had been stopped, I am of the view that the surveillance evidence is useful in proving that it was not the case, and she was exaggerating when she said so.  I would also not accept Mr Cheng’s speculation that the applicant’s life pattern had changed much after 2016, because it was not her evidence.

(6)  It can be seen from the surveillance evidence that during that same “yum cha” lunch in 2016, the applicant could eat with chopsticks without difficulties.  She even used chopsticks to serve food for others.  However, during the joint psychiatric expert assessment which took place on 1 February 2018, when the applicant was asked about her appetite, she volunteered the information that she could not hold chopsticks without being asked.  In my view, she was attempting to impress the psychiatric experts that her inability to use chopsticks had affected her intake of food.  Again, she had exaggerated her disability.

(7)  Furthermore, from the surveillance evidence, it can be seen that the applicant looked normal in the Chinese restaurant.  She was seen smiling and chatting.  I am of course aware of the fact that the video produced as evidence was not continuous, and there was bound to be editing of the video clips.  Be that as it may, if the applicant’s psychiatric condition was as bad as she described, I do not think so many happy expressions of the applicant could be captured.

(8)  Contrary to what the applicant alleged about her back pain, the surveillance evidence shows that she could get up from her seat after the aforesaid lunch at the Chinese restaurant very smoothly and naturally without any assistance nor did she need to hold onto anything.

(9)  Contrary to what she alleged about her right shoulder pain, the surveillance evidence shows that the applicant could carry a big shopping bag on her right shoulder. 

(10)  From the surveillance evidence, it can be seen that the Applicant was talking to an old lady in the street on 9 June 2016. When she was initially asked by counsel for the respondent who that lady was, the applicant did not answer and gave an excuse that she could not see the photographs clearly.  However, when this court asked her further on this, she admitted that that was her mother.  In my view, this clearly shows that she was evasive in her evidence.  In one of those photographs, the back of the lady was clearly seen; and in another photograph, half of the face (viewed from the left hand side of the lady) could be seen.  The applicant must have no difficulty to recognise that that was her mother.  I also hold the view that when the applicant was initially asked by Mr Lam about it, she was trying to avoid answering any question about her interaction with others.

(11)  The applicant said in court that as at 19 June 2016, she was experiencing the same pain as in March 2016, and there was no improvement at all.  As aforementioned, she described the pain as grade 8 out of 10 (without pain killer) and grade 7 out of 10 (with pain killer).  This is a very severe condition indeed.  However, she was seen worshipping at the Wong Tai Sin Temple on 19 June 2016, in the course of which she was seen bending down, moving a cushion (which was lying flat on the floor) from one position to another and standing back straight again while she was not holding her walking stick.  She could kneel down without assistance.  She could also bend down and pick up fortune sticks repeatedly while she was kneeling.  Further, she could walk in normal gait without her walking stick.  All of these gestures are inconsistent with what she described to be her condition.

(12)  The applicant said in court that her condition now is worse than that as in 2016, because of the medicine that she is now taking.  However, according to the evidence of both psychiatric experts, this cannot be true: Dr Yu Wai Tak, the psychiatric expert engaged by the respondent, told this court that the treating psychiatrist would have prescribed some other medicine if the original medicine prescribed would have serious side-effect; on the other hand, Dr Chiu Pak Wang Leo, the applicant’s own psychiatric expert, also told the court that the side-effect of the medicine, if any, would only subside with time, because the body of the applicant would have adapted to the medicine.  Therefore, when Dr Chiu was asked whether a patient’s physical condition would get worse after having taken medicine for a few years, he not only gave a negative answer, but also confirmed that the opposite should happen.

(13)  Generally speaking, it is the applicant’s evidence that her current condition is slightly worse than that as in 2016. However, from the surveillance evidence, while she had to walk with a walking stick, her condition was not too bad, as mentioned in various sub-paragraphs above. Even if this court accepts that her physical condition is really slightly worse now (which I do not accept), she would not be as weak as she would like this court to believe.

EXPERT EVIDENCE

Orthopaedic experts

17.The applicant has instructed Dr Wong Lok Yan Ian to be her orthopaedic expert.  Dr Wong opined, among other things, that:

(1)  The applicant did suffer from sprain injury to her back on 11 March 2016.

(2)  MRI taken on 24 October 2016 clearly revealed lateral stenosis as the result of bulging of L4/5 disc and hypertrophic facet and ligamentum flavum, causing impingement on traversing L5 roots.  The degenerative changes in the disc causing disc desiccation and bulging were pre-existing, and the sprain injury could have created further bulging of the disc, which resulted in further impairment of the function of the disc and further impingement on the nerve root.  “Unfortunately there was no MRI taken immediately prior to the alleged accident for comparison.  It is only through this that one could completely rule out or rule in this possibility (further bulging of disc caused by the sprain injury) without hesitation”[3] (emphasis added).

(3)  “It is very common from my experience in Spine surgery as well from textbook description that patient presented with genuine spinal stenosis does not have impaired sensation or motor power which follows a particular radicular distribution on examination.  It is also common that they don’t even have neurological deficit on examination.  Therefore even there was no documented decreased in motor or sensory function, it does not mean that there was no nerve root impingement.”[4]

(4)  The present findings are accountable by pre-existing degenerative changes triggered by the subject accident, which leads to the present state of pain.

(5)  There are positive Waddell’s signs which indicate that part of the applicant’s symptoms could not be fully explained by available orthopaedic conditions.

(6)  The applicant’s right lower limb symptom could be the result of right L5 nerve root impingement confirmed by MRI.

(7)  According to Macnab’s Backache (3^rd edition), “often there is virtually nothing to find on physical examination […] neurological examination of the extremities is often fruitless unless the stenotic condition has been present for a long time and is well advanced”.  The absence of objective neurological findings does not rule out the possibility of nerve root impingement. One should be cautious in analysing the findings in the case of no objective neurological deficit.

18.On the other hand, Dr Lam Kwong Chin, the respondent’s orthopaedic expert, opined, among other things, that:

(1)  The applicant did not have an actual back injury on 11 March 2016.  If she did have an injury which resulted in such chronic disability, the initial injury incident and pain should be very substantial. According to her own description, she did not have any particular twisting of her back.  Even if she did have any back pain as alleged on 11 March 2016, it should be at most a back pain due to muscle strain, or more likely, “a spontaneous onset of back pain due to natural progress of a pre-existing spinal pathology”[5].

(2)  Based on the medical findings reported by the treating doctor, the applicant mainly had low back pain which radiated to her right lower limb.  The complaint was not associated with weakness or spinal nerve root tension, and therefore it was a non-verifiable complaint.

(3)  The diffuse disc bulging/mild disc protrusion in L4/5 is due to degeneration.

(4)  The absence of objective signs such as loss of lumbar lordosis and paraspinal muscle spasm show that the applicant’s back pain should be of a minor degree.

(5)  In the simulation tests, the applicant complained of increase in back pain on vertex pressure, shoulder elevation, shoulder pressure and pelvis rotation.  These are typical tests for non-organic signs, i.e. Waddell’s signs, which are movements that are seem to be related to the back, but in fact they are not.  If obvious back pain is described in these tests, some exaggeration or functional overlay is present.

(6)  The applicant did not have any genuine neurological deficit because:

(i)  In a spinal root pathology (radiculopathy), there should be a combination of motor and sensory loss in the corresponding myotome and dermatome, in a persistent and segmental manner.  The present distribution of sensation and motor loss is too diffuse to be explained by a L5 root pathology.

(ii)  Neurological deficit should be associated with objective signs such as muscle wasting and diminished reflexes.  These were not altered in this case.

(iii)  The applicant did not have spinal nerve root tension (normal SLR while sitting).

(iv)  The findings are not supported by MRI findings.[6]

(7)  There were features which are suggestive of magnification of symptoms.

19.The experts also agreed that it was reported that at the L4/5 level, thecal sac is moderately compressed, lateral recesses are involved and traversing L5 nerve roots may be affected and exit foramina are mildly encroached.  While the changes might cause some problems at the L5 dermatome/myotome, they could not fully explain the diffuse nature of the applicant’s lower limb complaints.

20.I accept that the applicant did sprain her back on 11 March 2016.  However, I would prefer Dr Lam’s opinion as far as the extent of the applicant’s pain is concerned, because:

(1)  As mentioned above, it is my finding that the applicant has exaggerated the extent of her injury.

(2)  Even Dr Wong accepted that some of the applicant’s alleged symptoms could not be explained by “available orthopaedic conditions”.

(3)  Dr Lam’s opinion was made on the basis of objective signs.

21.Dr Wong has suggested different possibilities to explain the applicant’s alleged disabilities and pain.  However, as Mr Lam, counsel for the respondent, pointed out, the applicant, as the claimant herein, bears the burden of proof, and she has to satisfy the court on the balance of probabilities that she has been suffering from the alleged pain and disabilities.  Merely saying that “it is possible” that the pain exists and is caused by certain factors is not sufficient.

Psychiatric experts

22.Psychiatric experts have been instructed by the parties to give expert evidence at the trial. 

23.Dr Chiu for the applicant opined in the Joint Psychiatrists’ Report dated 3 April 2018 that:

(1)  The applicant is suffering from major depressive disorder, because she satisfies all the diagnostic criteria thereof according to the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (“DSM-5”).  Those criteria are as follows:

A.   Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.  The symptoms are:

(i)  Depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g. feels sad, empty, hopeless) or observation made by others (e.g. appears tearful);

(ii)  Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation);

(iii)  Significant weight loss when not dieting or weight gain (e.g. a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day;

(iv)  Insomnia or hypersomnia nearly every day;

(v)  Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down);

(vi)  Fatigue or loss of energy nearly every day;

(vii)  Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick);

(viii)  Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others);

(ix)  Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.

B.  The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

C.  The episode is not attributable to the physiological effects of a substance or to another medical condition.

D.  The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.

E.  There has never been a manic episode or a hypomanic episode.

(2)  The applicant’s major depressive disorder is very serious because (i) while only 5 symptoms under criteria A are required to be diagnosed for major depressive disorder, the applicant has all 9 symptoms; (ii) the applicant has heard a female voice once every few days, telling her that she was worthless and “better be dead”.

(3)  The conclusion that the applicant is suffering from major depressive disorder is supported by the fact that the applicant had been diagnosed to be suffering from depressive disorder by psychiatrists of the Eastern Hospital and that she had been prescribed with heavy dosage of antidepressant drugs.

24.Dr Yu, who was engaged by the respondent, did not agree with Dr Chiu.  In Dr Yu’s opinion:

(1)  The applicant is suffering from adjustment disorder with mixed anxiety and depressed mood. 

(2)  The applicant has “provided exaggerated descriptions of mental symptoms with the intent to build up a case of severe mental distress”[7].

25.With greatest respect to Dr Chiu, having observed the way he gave his expert evidence at the trial, I accept Mr Lam’s submissions that Dr Chiu was trying to advocate the applicant’s case rather than assisting the court.  I therefore would not accept his evidence.  This finding is made on basis of the following matters:

(1)  When Dr Chiu was asked to confirm by reference to the medical records that the applicant as a matter of fact did not tell the government hospital doctors about any hallucination, Dr Chiu, instead of answering the question, tried to defend the applicant by suggesting that there were several possibilities why she did not do so: he said she might have forgotten to mention it, she might be worried that she would be admitted into the hospital, etc.  Remarkably, if any of those possibilities was accepted by this court, it would be favourable to the applicant’s case.  It should also be noted that, in fact, Dr Chiu was not asked to speculate on the reason(s) why the applicant did not mention “hallucination” to the treating doctors, but he volunteered to give those reasons himself.   

(2)  It can be seen from the earlier part of this Judgment that one of the matters which the psychiatric experts had to take into account was whether the applicant had depressed mood most of the day and nearly every day during a 2-week period.  In the Joint Psychiatrists’ Report, one of the matters which Dr Chiu relied on to conclude that “the applicant had depressed mood most of the day and nearly every day” was the description under paragraph 30(d) of the Joint Psychiatrists’ Report, which was only stated that “Her mood was so bad that she wished to be dead”.  Apparently, no frequency of the occurrence of such mood was stated therein.  When Dr Chiu was cross-examined on this, he initially defended himself by saying that the said sentence was only on “severity” of the applicant’s condition, but not on “frequency”. However, when he was reminded that “frequency” was an important consideration (which he agreed), Dr Chiu stated that emotion cannot be expressed in terms of “number of times” (情緒唔可以用次數嚟計), and therefore he had asked the applicant “whether she had depressed mood most of the time”.  However, when this court queried whether it would be appropriate for him to ask the applicant in such a way because “whether you had depressed mood most of the time” seems to be a leading question, Dr Chiu changed his evidence again, and stated that he would not ask question in such a direct way but would do it step by step.  All in all, in the whole process, it is this court’s impression that Dr Chiu was only trying very hard to reach the conclusion that the applicant had the required symptoms. 

(3)  When Dr Chiu was re-examined by Mr Cheng on the Psychiatric Impairment Rating Scale, he was asked about the reduced frequency of travelling on the part of the applicant.  Mr Cheng asked him whether, among other things, the use of walking stick and the “walking speed” would affect the rating.  Surprisingly, Dr Chiu confirmed that they would. This court found it most surprising, because it seemed that the rating should only be affected by the frequency of the applicant going out herself.  This court therefore clarified with Dr Chiu, and it was only then that he changed his evidence and confirmed that the “walking speed” and the use of walking stick would not affect the rating.  In my view, this is another example showing that Dr Chiu was trying to advocate the applicant’s case.  The question was asked very clearly, and I do not think that it was an unintentional slip of tongue on the part of Dr Chiu. 

26.There are some other reasons on the basis of which I find that I should not rely on Dr Chiu’s opinion.

(1)  Some answers given by Dr Chiu in court are difficult to understand.  For example, while he agreed that whether a patient was taking medicine at the material time was an important matter which had to be taken into account by experts, he did not agree that he would have taken it down in the Joint Psychiatrists’ Report if he had asked the applicant questions about taking of medicine.  This does not make any sense.  As he pointed out, if a patient had taken medicine, his/her psychiatric condition might be affected, and the condition as shown in the assessment session may not be the “real” condition.  Therefore, psychiatrists have to know whether a patient has taken medicine before the assessment so as to assess whether the condition is the “original” condition or the “improved” condition or “unimproved condition”. But Dr Chiu maintained that there is no need to write it down.

(2)  Dr Chiu had repeatedly said in his evidence that since there was nothing which proved that the applicant was lying, he had to believe the applicant.  He even went as far as to say that if he did not believe his patient, he could not write the expert report.  In my view, this is not the correct approach.  As an expert, Dr Chiu owed a duty to the court.  He had to do all the necessary tests, make reference to all the medical records, and give his opinion on the real condition of the applicant.  Although experts’ tasks are not to prove that a patient is or is not exaggerating, they are obliged to assess the patient objectively, and give their opinions impartially.  It is because of this that I find it surprising for Dr Chiu to allege that in depression cases, doctors need to believe in the patient, and that there is no need to consider objective observation.  In my view, it is exactly because the detection of psychiatric problems relies heavily on the subjective complaints of the patient that it is all the more important for experts to try their best and assess (and observe) the patient objectively, and assist the court by giving their opinion as to whether the subjective complaints are genuine or not. 

(3)  I also take the view that Dr Chiu had drawn his conclusions too readily without adequate factual support. For example, when he was told that the applicant did not cook at home, and all that she did at home was to put laundry into a washing machine, he immediately came to the conclusion that the applicant could not live independently without regular support.  However, throughout the entire Joint Psychiatrists Report, it was never mentioned that the applicant had ever told the experts that she was unable to do household chores at all.  Indeed, neither did the applicant said in her witness statement nor in her evidence in court that she was unable to do household chores.

27.On the other hand, Dr Yu has impressed me as a very careful expert witness, who gave his evidence in a meticulous way.  I find that the evidence he gave was logical, and that he was doing his best to assist the court impartially.  I accept his evidence.

28.Although I have already rejected Dr Chiu’s expert evidence in the present case, for the sake of completeness, I would go further and give my view on Dr Chiu’s reasoning of his finding that the applicant was suffering from major depressive disorder.

29.I would first of all give some general comments.

30.Dr Chiu had explained that, for the applicant to be diagnosed to be suffering from major depressive disorder, she had to have at least 5 out of 9 symptoms under criterion A referred to above.  Dr Chiu opined that the applicant had all the symptoms. 

31.It should be remembered that the requirement is that for the symptoms to be counted, they had to be present during the same 2-week period and there should be a change from the previous condition.  Furthermore, out of the 9 symptoms, both “depressed mood” and “markedly diminished interest or pleasure in activities” must be present.

32.However, it is apparent from the report and from the oral evidence of Dr Chiu that he had not, in respect of each of the first 8 symptoms, specifically asked the applicant about whether she had experienced those problems “most of the day, nearly every day” in the same 2-week period before the assessment.  Dr Chiu only asked the applicant generally whether she had such symptoms, and then inferred that the applicant had such problems “most of the day, nearly every day” in the same 2-week period.  I do not think this court should accept inferences drawn in this way.  In fact, even Mr Cheng emphasized in his submissions that the applicant’s mood “fluctuated over time”[8].  Under such circumstances, one must be cautious when analysing whether the applicant had a particular symptom in a frequency which is required.  If the diagnosis of “major depressive disorder” has such stringent requirements as set out above, we have no other way but to go through such requirements one by one and check whether they are satisfied.  Mr Cheng submitted that “psychiatric experts should not be expected to ask the patient questions according to a checklist because that would be too obvious to the patient”. I trust that experts would have their own way to elicit the required information from the patient, and they should have the expertise to distinguish those patients who have genuine complaints and those who do not.

33.Moreover, as admitted by Dr Chiu, he tended to accept totally what the applicant said because, in his own words, “there was no evidence which contradicted what the applicant said”.  However, as can be seen below, some of the applicant’s complaints are apparently not supported by some of the medical records of Eastern Hospital.  Furthermore, as I have ruled above, I find that the applicant’s evidence is not credible, and she had exaggerated her problems.

34.It should also be borne in mind that the applicant bears the burden to prove that she was indeed suffering from major depressive disorder.  It is therefore necessary for the court to consider whether what Dr Chiu relied on was adequate in discharging the applicant’s burden of proof in court.

35.I now turn to consider some of the symptoms.

36.Depressed mood – The 1^st symptom is “depressed mood”.  The requirement is that it had to be present “most of the day, nearly every day, as indicated by either subjective report (e.g. feels sad, empty, hopeless) or observation made by others (e.g. appears tearful)”[9]. Dr Chiu relied on paragraphs 30(d) and 50 of the Joint Psychiatrists’ Report in support of his conclusion that this criterion was satisfied.  Paragraph 30(d) reads: “Her mood was so bad that she wished to be dead”.  Paragraph 50 mentioned that the applicant had been in tears once during the assessment session.

37.The statement under paragraph 30(d) does not mention about frequency at all.  Dr Chiu explained in court that he could not remember what applicant said about frequency.  However, he said he accepted that the applicant was in depressed mood most of the time.

38.I have great doubt as to whether Dr Chiu had asked about frequency at all.  “Frequency” is apparently an important matter which has to be taken into consideration.  If Dr Chiu had asked about it, I am sure he would have recorded it in the report.  However, there is no such record therein.

39.If Dr Chiu did not ask about frequency, then there is a big question mark as to whether the criterion of this symptom is satisfied.  It should be noted particularly that in a number of previous medical records of the Eastern Hospital, the recorded finding was “euthymic”.   

40.I therefore do not think Dr Chiu has provided adequate basis in his evidence to conclude that the applicant had depressed mood “most of the day, nearly every day in the same 2-week period”.

41.Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation) – Dr Chiu relied on paragraphs 30(i) and 41 of the Joint Psychiatrists’ Report in support of his conclusion that this criterion was satisfied.  Paragraph 30(i) reads: “She talked much less”.  Paragraph 41 mentioned that all her pre-accident activities had been stopped and that she would decline if her friends asked her to go out.  Dr Chiu explained that he gave his opinion on the basis of what he was informed by the applicant.  However, when it was pointed out to Dr Chiu that according to the surveillance evidence, the applicant did go out and have lunch in a Chinese restaurant (yum cha) in June 2016, Dr Chiu changed his evidence and stated that it would not count if the applicant only went out once, and that one cannot require the applicant to stop all her activities. 

42.Dr Chiu had given his opinion on the basis that the applicant was telling him the truth and had not exaggerated.  I agree with Dr Yu that this is not right, because the applicant had exaggerated her evidence.  It also appears that Dr Chiu did not specifically enquire with the applicant as to her activities in the 2-week period before the assessment and how it should compare with her previous routine and lifestyle.  In my view, there is inadequate material to conclude that the requirement under this symptom is satisfied.

43.As neither of the first two symptoms was present, the applicant has failed to prove that she was suffering from major depressive disorder.

44.While the above analysis would be enough to dispose of the applicant’s case on major depressive disorder, I will consider some other symptoms.

45.Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down) – Dr Chiu relied on paragraphs 30(a), (b), (c) and 48 of the Joint Psychiatrists’ Report in support of his conclusion that this criterion was satisfied.  In relation to paragraph 30(a) (the applicant said she was unable to stop hurting her own self), Dr Chiu admitted that he did not ask the applicant the frequency of occurrence of such a problem.  For paragraph 30(b) (she wanted to take a chopper and chop her son when she had a quarrel with him) and paragraph 30(c) (she hit her son), Dr Chiu said that according to the applicant, these had happened once only.  However, it was Dr Chiu’s evidence that because the applicant’s behaviour as described in paragraph 30(a) to (c) are “extreme examples”, one can infer that the criterion on frequency is satisfied. With respect, I cannot accept such an explanation, because that was not what was stated in the Joint Psychiatrists’ Report as the requirement for the diagnosis of major depressive disorder.  In my view, there was plainly inadequate material for Dr Chiu to conclude that this criterion was satisfied. It seems to me that this was just another example that Dr Chiu was trying to assist the applicant in establishing her case.

46.Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick) – Dr Chiu relied on paragraphs 27 and 33 of the Joint Psychiatrists’ Report in support of his conclusion that this criterion was satisfied.  In paragraph 27 of the said Report, it was stated that the applicant said that she was worthless during the assessment on her own initiative.  In paragraph 33, it was stated that the applicant said she was nothing and was worthless. 

47.It appears that no further enquiry had been made on whether the applicant had such a thought “most of the day, nearly every day” in a 2-week period. 

48.Furthermore, as aforesaid, it is my finding that the applicant had exaggerated her pain, in an attempt to bolster her case for compensation.  I am of the view that she had likewise exaggerated her mental symptoms during the assessment by the psychiatric experts. 

49.I do not think Dr Chiu has satisfied this court that he had come to his conclusion with adequate material in support.

50.Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others) – Dr Chiu relied on paragraphs 25 and 53 of the Joint Psychiatrists’ Report in support of his conclusion that this criterion was satisfied.  In the said paragraph 25, it was recorded that the applicant told the experts on her own initiative that she was forgetful.  In paragraph 53 of the Report, it was stated that the applicant performed poorly in some tests conducted during the assessment.

51.It is remarkable that according to the objective observation of the experts, the applicant had adequate attention and concentration. However, Dr Chiu told the court that it is unnecessary to consider such an objective observation, and that one can rely totally on the subjective view and conclusion of the patient.  I find this difficult to accept because, as pointed out by Dr Yu, it is very easy for a patient to deliberately answer questions raised in the screening tests in the wrong way so as to claim that he/she has severe problems. 

52.I also accept Dr Yu’s evidence that the applicant had deliberately given some wrong answers when she was asked to subtract 5 from 100 continuously.  Dr Yu told the court that this was a test which was not usually given in assessments, but was specifically given to the applicant so as to check whether she was exaggerating her problem.  Dr Yu also gave evidence that because such a question should be very easy to answer correctly, in the event the patient did it wrong, then the patient should be exaggerating.  The applicant indeed did it wrong.  Dr Yu therefore concluded that the applicant was exaggerating.  I accept Dr Yu’s evidence in this regard.

53.Given my finding that the applicant had tended to exaggerate her problems, I would not accept Dr Chiu’s conclusion which was reached entirely on what he had been told by the applicant.  I would also give more weight to the objective observations of the experts.

54.Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide – Dr Chiu relied on paragraphs 30(e) and 30(h) of the Joint Psychiatrists’ Report in support of his conclusion that this criterion was satisfied.  Paragraph 30(e) stated that the applicant had attempted suicide once.  Paragraph 30(h) mentioned that the applicant thought of committing suicide everyday.  However, as it can be seen from the medical records of the Eastern Hospital made from 28 July 2016 onwards, it had been recorded repeatedly that she had no suicidal idea. 

55.Mr Cheng for the applicant had referred this court to 2 previous medical records which showed that the applicant did mention about suicide.  However, according to the Joint Psychiatrists’ Report, for these to be taken into account, they had to be present in the same 2-week period as other symptoms.  There is no such evidence in the present case.  I also note Dr Yu’s observation that the applicant had mentioned about her alleged suicidal idea to different people in different ways.  Taking into account my finding that the applicant had exaggerated her problem, I do not accept that this criterion was satisfied. 

56.Given at least 6 of the 9 symptoms of major depressive disorder are found not to be present, I do not accept that the applicant had such a mental problem.  I accept Dr Yu’s opinion that the applicant was only suffering from adjustment disorder with mixed anxiety and depressed mood.

57.In my view, such a conclusion is a reasonable one, taking into account the fact that the applicant’s physical injury was not serious at all.  As pointed out by Dr Yu, if a mental problem was caused by an injury, the seriousness of the mental problem should be directly proportional to the seriousness of the physical injury.  Dr Chiu did not disagree with this, though he pointed out that it would also be dependent on the particular personal character of the patient, as there might be some special features in the personal character that might aggravate the problem.  Having said that, Dr Chiu accepted that there was no such special feature found in the applicant which would worsen her mental condition. 

58.Further, according to the Government hospital’s records from 28 July 2016 to 5 June 2017, the applicant was not suicidal nor psychotic. In records up to November 2016, she was described as “euthymic”, and she was only, at most, described as “worrisome looking” or “tense looking”. 

59.I have not lost sight of the fact that the applicant had been diagnosed by psychiatrists of the Eastern Hospital to be suffering from moderate depression. According to Dr Yu, public hospitals are adopting the “ICD-10” scale (International Classification of Diseases), whereas he and Dr Chiu had agreed to use “DSM-5”, and “moderate depression” under ICD-10 is equivalent to “major depressive disorder with moderate severity” under DSM-5.

60.However, I would not place any weight on the diagnosis of the government doctors in the present case.

61.The first reason is that treating doctors would normally treat their patients without querying whether such patients are describing their problems truthfully.  Psychiatric problems, like pain, are very subjective.  Treating doctors may be misled by patients who intentionally exaggerate their problems.

62.The second reason, which is the more important one in the present case, is that, as agreed by both psychiatric experts, there are some unexplained features in the medical records of the Government hospitals, in that while it is not apparent from such records that the applicant’s psychiatric condition had gone any worse, the medication dosage prescribed had kept going up from 30mg of Duloxetine daily to 60mg to 90 mg per day.  Both experts told the court that 90mg of Duloxetine per day was a very heavy dosage (Dr Chiu said he had never prescribed such a heavy dosage to his patients himself) and it is unclear why the government doctors felt it necessary to give such a heavy dosage.  Even Dr Chiu opined that he would have kept the dosage at 30mg only in the case of the applicant.  He further opined that the government psychiatric doctors had either incorrectly summarised their medical findings or mistakenly increased the daily dosage of Duloxetine prescribed.  I therefore find it unsafe to rely on the diagnosis of the government doctors.

SECTION 9 COMPENSATION

63.It is undisputed that the applicant was earning $19,221 per month at the time of the accident. 

64.She was 41 at the material time.  Hence, pursuant to section 7(1)(b) of the Ordinance, the applicable multiplier is 72.

65.The only question which this court has to decide here is the applicant’s permanent loss of earning capacity.

66.According to the Form 7 dated 3 April 2018, such loss was assessed by the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) at 4%.  The applicant’s injury was stated to be “Back injury resulting in prolapsed intervertebral disc at L4/5 with lack of endurance, weakness and stiffness; Psychiatric impairment”.

67.The applicant has lodged an appeal against the Board’s assessment pursuant to section 18 of the Ordinance, whereas the respondent has not lodged any such appeal.  However, Mr. Lam for the respondent submitted that, be that as it may, it is free for the respondent to argue at the trial that the applicant’s permanent loss of earning capacity was less than 4%, because the issue has been reopened by virtue of the applicant’s appeal, and the court is not bound by the assessment of the Board.

68.It is trite that an appeal under section 18 of the Ordinance in fact is not an appeal proper, because the Assessment Board does not give any reasons for its assessment and the court hearing the appeal has to form its own view by reference to all the evidence, and in particular the medical evidence, in arriving at its conclusion as to the permanent loss of earning capacity and the period of temporary total incapacity resulting from the injury.  In Chan Kit v Sum Wo Industrial Manufactory[10], Hunter JA, who gave the judgment of the Court of Appeal, said:-

“… the court’s jurisdiction appears to beappellate. But one has then to remember that these Boards are acting ontheir own knowledge. They hear no evidence. They keep no record. Theygive no reasons. So that they provide no material which explains the basisof their approach. They only produce a result. Although the procedure byway of appeal may be properly so described in order to bring about areversal of their decision if the court is so minded; it is plain that a Courtapproaching this matter has really got to start afresh.”

69.The paragraph quoted above had been referred to by the Court of Appeal in Tsang Kwong Tong v Tennille Decoration & Design Limited & Others (CACV 42/2006, unreported, 10 October 2006), in which Tang JA (as his Lordship then was) added:

“Where no reasons are given by the Board, as is usually the case, the court hearing an appeal under section 18 ought not to speculate and ‘can only judge an assessment by testing the validity of its conclusions against the total available evidence’ (Chan Kam v. Standard Chartered Bank Hong Kong Trustee Ltd., supra. at 458)” (at paragraph 47).

70.In Chu Chin Yiau v Ray On Construction Co Ltd[11], Deputy District Judge Bharwaney (as his Lordship then was), also said:

“In fact, whether an appeal is lodged pursuant to s 18(1)or application made for compensation under s 9 or, indeed, both proceduresresorted to at the same time, it is clear that a court approaching the matterhas to start afresh, relying not only on the certificate of the Board but alsoon any other evidence, especially medical evidence, adduced before it toassess the loss of earning capacity permanently caused by the injurysuffered in an accident at work (Chan Kit v Sum Wo Industrial Manufactory[l989] 2 HKLR 230 at 233 and Yip Fong Ming v Joint-Effort EngineeringCo & Anor(ECC 128/88, 17 May 1989 p 3, unreported)).”

71.It can be seen above that, if an appeal under section 18 of the Ordinance has been lodged, this court has to start afresh and shall not be bound by the assessment of the Board.  Therefore, I agree with Mr Lam that he is at liberty to argue at the trial that the percentage of permanent loss of earning capacity on the part of the applicant should be even lower than that assessed by the Board even though the respondent has not lodged any appeal as such.  Ruling otherwise would be equivalent to saying that the court is, at least partly, bound by the assessment of the Board (because the court in such a case would not be able to go lower than the assessment arrived at by the Board). 

72.Take the present case as an example, if this court does not allow the applicant’s appeal, and if the court does not allow the respondent to argue that the applicant’s loss of earning capacity is lower than 4%, it will be equivalent to saying that the court is bound by the assessment of the Board.  This seems to me to be contradicting the rationale which has been adopted by the court for a long time that once an appeal under section 18 is lodged, the court has to start afresh and will have to come to its own conclusion having considered all the evidence placed before the court. There is no reason why the court should not be allowed to come to a figure which is lower than that given by the Board. 

73.With the above in mind, I will now turn to consider the applicant’s orthopaedic condition and psychiatric condition separately.

Orthopaedic condition

74.Dr Wong assessed that the applicant’s permanent loss of earning capacity was 3%, whereas Dr Lam assessed it at 2%.

75.I accept Dr Lam’s evidence, and would adopt the figure of 2%.

Psychiatric condition

76.As far as the applicant’s psychiatric condition is concerned, I have rejected Dr Chiu’s opinion.  I agree with Dr Yu that she only had very mild symptoms.  I will adopt Dr Yu’s evidence that the applicant has suffered no permanent loss of earning capacity by reason of her psychiatric condition.

Calculation of section 9 compensation

77.Compensation under section 9 of the Ordinance is therefore assessed at $27,678.24 ($19,221.00 x 72 x 2%).

SECTION 10 COMPENSATION

78.It is undisputed that the applicant had been given sick leave for a total of 632 days from 13 March 2016 to 4 December 2017 and that it had been certified in the Form 7 that those days of sick leave were necessary as a result of the applicant’s injury. 

79.In Dr Wong’s opinion, sick leave up to April 2017 is appropriate. Dr Lam did not agree.  He took the view that the sick leave had been unnecessarily prolonged.  On the basis that the applicant had only strained her back, Dr Lam opined that only 6 months’ sick leave should be endorsed.

80.At the trial, Mr Cheng suggested that the applicant’s appeal under section 18 of the Ordinance should be allowed and therefore section 10 compensation should be calculated on the basis of 3 years’ sick leave.

81.With respect, I do not agree with Mr Cheng.

82.Given my finding that the applicant’s back pain is only very minor, I rule that the respondent has successfully rebutted the presumption under section 10(2) of the Ordinance.  I would adopt Dr Lam’s opinion that only 6 months’ sick leave should be endorsed.

83.The amount of section 10 compensation is therefore assessed at $92,260.80 ($19,221.00 x 4/5 x 6).

SECTION 10A COMPENSATION

84.Section 10A compensation has been agreed at $32,110.00.

TOTAL AMOUNT OF COMPENSATION PAYABLE

85.It is undisputed that the applicant had received advance payment in the total sum of $112,043.23.

86.The total amount of compensation payable is therefore calculated as follows:

Section 9	$27,678.24
Section 10	$92,260.80
Section 10A	$32,110.00
		$152,049.04
Less advance payment		($112,043.23)
		$40,005.81

87.Interest should be awarded at half of the judgment rate from the date of the accident (11 March 2016) to the date of this judgment, and at judgment rate thereafter until full payment.

COSTS

88.I make a cost order nisi that the applicant shall bear the costs of the respondent (including all costs reserved, if any), with certificate for counsel, to be taxed if not agreed.  The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any) within 14 days hereof.  Any application to vary the costs order nisi shall, with the consent of the parties[12], be dealt with on papers.

Mr Ken Cheng, instructed by CHIH, for the applicant

Mr Gary Lam, instructed by Deacons, for the respondent