Chung Chun Wah v. J.V. Fitness Ltd

DCEC 682/2016

[2021] HKDC 1044

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 682 OF 2016

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Deputy District Judge David Chan (Open to public)

Dates of Hearing: 16 to 19 December 2019

Date of Assessment of Compensation: 27 August 2021

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ASSESSMENT OF COMPENSATION

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Introduction

1.This is the assessment of the applicant Mr Chung Chun Wah’s (“Mr Chung”) employees’ compensation claim based on an accident which took place on 11 January 2015. He claims against the respondent company J.V. Fitness Limited (“J.V.”) for compensations under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (Cap 282) (“ECO”). Interlocutory judgment on liability was entered against J.V. on 3 May 2016.

2.J.V. was wound up, and pursuant to the order made by Mr Justice Harris on 29 November 2017, Ms Hou Chung Man and Mr Kan Lap Kee (“Mr Kan”) were appointed as its joint and several liquidators. By an earlier order of Mr Justice Harris dated 25 October 2016, Mr Chung was granted leave to continue with the present proceedings pursuant to section 186 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32).

3.At the assessment hearing, Mr Chung was represented by counsel Mr Patrick Szeto (“Mr Szeto”) and J.V. was represented by counsel Mr Leon Ho (“Mr Ho”).

4.On the first day of the hearing, Mr Szeto informed the court that, despite having filed a witness statement for this case, Mr Chung would not be calling his mother to give evidence in court. Likewise, Mr Kan, who made a statement for J.V., would not attend court to give his evidence. Nevertheless, it was agreed between the parties that Mr Kan’s witness statement should stand as his evidence-in-chief as the contents of the same is not contested by Mr Chung.

5.As a preview of what this assessment features, one should expect to see much diversity between the parties on various aspects of the case, mostly encompassing on the battle of opinions between the orthopaedic experts.

The Accident

6.The events leading up to the Accident are set out below for background information.

7.Mr Chung commenced his employment with J.V. on 4 June 2012.[1] His initial post was a trainee fitness professional, and later on a fitness professional after he completed his training course. He was promoted to the post of assistant fitness manager at the end of 2014. During his employment with J.V., he was deployed to work at its Causeway Bay branch (the “Branch”) which was operated under the name of “California Fitness”. 

8.Mr Chung did not have long to enjoy his new post. On 11 January 2015, at or about 10:45 a.m., Mr Chung was, in the course of his employment at the Branch, assisting a student (the “Student”) in doing squats with the aid of a Smith Machine. At the time, Mr Chung was supporting the Student from behind whilst the latter was holding the barbell at his shoulders. In the midst of squatting down bearing the load, the Student lost balance and fell backward onto Mr Chung. Like a domino falling, Mr Chung also losing his balance and fell backward onto the ground, sustaining injuries that he now claims to have suffered (the “Accident”).

The injuries

9.In his Application, Mr Chung alleges that he suffered from the injuries below due to the Accident: -

(1) Persistent back pain with radiation to right lower limb, aggravated with movement or prolonged standing.

(2) Tense paravertebral muscles at lumbar spine region.

(3) Tenderness over sacral region.

(4) Right sciatica.

(5) Reduced range of trunk flexion, extension and lateral flexion.

(6) Desiccated L4/5 intervertebral disc, with mild disc flattening.

(7) Broad-based posterior disc extrusion at L4/5 level, with mild focal spinal stenosis.

10.As per the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) dated 21 April 2017 (“Form 7”)[2], Mr Chung was assessed to have suffered from permanent loss of earning capacity at 5% due to back contusion[3], and it was opined that sick leave period from 11 January 2015 to 9 March 2017 should be appropriate. Neither Mr Chung nor J.V. was content with the Board’s assessment; they both appealed against the same.

11.In a letter dated 15 June 2017 from the Employees’ Compensation Division of the Labour Department[4], a breakdown of the Board’s assessment of 5% permanent loss of capacity was provided: (1) L4/5 prolapsed intervertebral disc (“PID”) (2%); (2) back pain (1%); (3) right lower limb weakness (1%); and (4) psychiatric impairment (1%).

12.Based on the parties’ respective list of issues, the court is tasked to decide on the following matters: -

(1) On the issue of causation, whether the Accident resulted in broad-based extrusion disc at L4/5, causing mild focal stenosis? (“1^st Issue”)

(2) Whether the Accident caused a mild degree of muscle atrophy at Mr Chung’s right thigh? (“2^nd Issue”)

(3) Whether Mr Chung have any genuine residual disability? (“3^rd Issue”)

(4) What is the reasonable length of sick leave? (“4^th Issue”)

(5) Whether Mr Chung could resume his pre-injury occupation as a fitness trainer? (“5^th Issue”)

(6) On the question of prognosis, whether his daily activities would be affected? (“6^th Issue”)

(7) What apportionment shall be made, if any, due to his pre-existing spinal degeneration? (“7^th Issue”).

Mr Kan’s evidence

13.I will depart from the norm and set out Mr Kan’s evidence first in this assessment as the same is not contested by Mr Chung.

14.In his capacity as one of the liquidators of J.V., Mr Kan’s evidence is unsurprisingly short, limited to the provision of information regarding Mr Chung’s earnings prior to the Accident, and the advanced payment that he had received subsequent to it.

15.For the former, Mr Kan said that Mr Chung received basic salary of HK$8,000 per month together with performance bonus and commission before November 2014. Since the promotion in late 2014, ironically his basic salary was reduced to HK$5,000 per month, but his entitlement to performance bonus and commission remained intact. In December 2014, Mr Chung received HK$82,092.42 from J.V., which comprised of HK$5,000 basic salary, and HK$77,092.42 representing the commission and performance bonus that he earned. Mr Kan also took the opportunity to confirm that the information contained in the List of Earnings filed on 17 June 2016[5] is correct.

16.As to the latter, a table was prepared to show the periodical payment (total sum of HK$510,067.59 from February to September 2015) and medical expenses (total sum of HK$3,590 for the same period) received by Mr Chung. In all, they amounted to HK$513,657.59.[6]

Mr Chung’s evidence-in-chief

17.Mr Chung made a total of 2 witness statements in this case. He adopted them as part of his evidence-in-chief at the assessment hearing.

His background

18.Mr Chung was born on 13 December 1969, and was 45 years old at the time of the Accident. He was having a divorce with his former wife at the time of the Accident, and he resided alone in Shenzhen during their separation. He moved back to Hong Kong and lived with his mother in around mid-2016, to facilitate attending his follow-up treatments after the Accident. Mr Chung explained that, prior to the Accident, he was required to pay his elder sister HK$9,000 per month for taking care of his daughters, and around HK$2,000 to HK$3,000 per month to his mother as household expenses. Together with his other outgoings, he needed about HK$25,000 per month to make ends meet.

19.His narratives then turned to his education and work experiences. After completing his education up to Form 5, Mr Chung entered into the workforce and tried his hands on a variety of jobs including driver, delivery worker, rehabilitation instructor for the disabled, and worked in the manufacturing business operated by his family.

Employment with J.V., duties and earnings

20.Since June 2012 when he started his employment with J.V., Mr Chung’s daily duties included instructing, assisting and supporting his students whilst they performed different move-sets during trainings. These training sessions with his students could earn him HK$200 to HK$300 an hour. He said that he would train 6 to 7 students per day. On top of such duty, he was required to promote training programmes to customers in return for commission. He could receive 12% commission on the programmes he sold if the target sales of HK$100,000 per month was attained. He said that, on average, his sales per month would reach HK$250,000. Since late 2014, as the assistant fitness manager, he had the added duty to supervise his subordinate fitness instructors, and attend meetings with his superior. In such role, he was also responsible for ensuring that his subordinates could meet the sales target set by J.V. for the Branch.

21.Mr Chung then expounded on his remuneration package and his average monthly earnings. As an assistant fitness manager, his basic monthly salary was HK$5,000. Together with the aforesaid class fees and commission, his monthly earnings ranged from HK$65,000 [HK$5,000 (basic salary) + HK$40,000 (class fees) + HK$20,000 (commission)] to HK$85,000 [HK$5,000 (basic salary) + HK$50,000 (class fees) + HK$30,000 (commission)]. There were other means of escalating his earnings, Mr Chung explained, for example by not taking his annual leave in return for monetary compensation, and bonus earned from recommending people to work for J.V., whom eventually stayed on with the job. On these bases, Mr Chung claims that he could earn on average HK$80,000 per month, as evidenced by his earnings for the month prior to the Accident (HK$82,092.42).

The Accident

22.Mr Chung’s description of how the Accident happened resembled that set out in the Application and reproduced in §8 above. He added the following details in his witness statement: -

(1) The Smith Machine was used to aid the deep-squat exercise, which was aimed to train the thigh muscle.

(2) The Smith Machine consisted of a barbell that was fixed within steel rails which allowed only vertical movement (not sideways). Behind each vertical poles of the Smith Machine were a series of slots on which the barbell could be hooked. The Smith Machine was also installed with a safety device at the mid-lower portion of it, which would automatically stop the barbell at a predetermined minimum height. This would prevent the barbell from falling all the way onto the ground.

(3) The barbell that the Student used on that day was burdened with the weight of 50 kg. In performing the move, he had to walk into the Smith Machine, held the barbell with both of his hands at his shoulder level throughout the exercise. The Student would then squat down and stand up with repetitions.

(4) Before the training began, Mr Chung had demonstrated to the Student what the latter needed to do. And whilst the Student was performing the move, in order to render support to him, Mr Chung wrapped his arms around the Student’s waist from behind and moved along with the Student when he was squatting down and standing back up.

(5) Mr Chung explained that when the Student was falling back onto him, the Student was still holding on to the barbell, until the same was caught by the safety device. As such, Mr Chung was impacted by the combined weight of the Student and the barbell. Mr Chung elaborated that when he fell, it was his buttock that landed on the ground first, followed by his upper body. He felt instant pain at his buttock and waist region, radiating to his right leg. He was unable to stand upright; he sat on the floor whilst waiting for the arrival of an ambulance to take him to the Ruttonjee and Tang Shiu Kin Hospitals (“RTSKH”).

23.In the sections below, we will see Mr Chung’s journey through the physical and psychiatric ailments he had, the findings of the doctors, and the treatments rendered to him. In order to have a clearer picture of all these, I will combine Mr Chung’s evidence with the contents of the reports compiled by the treating doctors.

RTSKH

24.Upon arrival at the RTSKH, he was admitted to the Accident and Emergency Department (“AED”). There, he was examined by Dr Chan Yau Ng, Puisy (“Dr P. Chan”). As per her report dated 6 January 2016 (“Dr P. Chan’s Report”)[7], examination revealed that:-

(1) the general condition was satisfactory;

(2) blood pressure and pulses were stable;

(3) tenderness was found over lower back;

(4) no neurological deficit of lower limb, straight-leg raising (“SLR”) of 60°[8]; and

(5) x-ray of lumbosacral spine showed alignment satisfactory, disc space preserved and no fracture was seen.

25.Dr P Chan injected Mr Chung with 30 mg of Ketorolac, and prescribed to him Voltaren SR, Panadol, Pepcidine and Analgesics Balm. He was discharged on the same day.

26.On 16 January 2015, he returned to RTSKH for follow-up treatment on his persistent back pain which radiated to his right leg.

South Kwai Chung Jockey Club GOPC (“SKC”)

27.Mr Chung attended the SKC on 22 January 2015 for his back pain, with radiating pain and numbness to his right leg. As per the medical report dated 27 November 2015 (“1^st SKC Report”)[9], Mr Chung’s pain was aggravated with movement or standing which exceeded 15 minutes. He complained of occasional disturbed sleep. He walked with mild limping gait, and examination revealed mild tenderness over sacral region, with no tenderness was found at lumbosacral spine. Slump test was positive on the right side. The impression was right sciatica.

28.It was recorded in the 1^st SKC Report that there were complaints of persistent right lower back pain during subsequent consultations. The progression was slow and the pain was mainly on the lower back with gradually lesser radiation of pain. A letter was issued (after private MRI) to the Yan Chai Hospital (“YCH”) to accelerate the orthopaedics appointment there[10], which bore no fruit.

29.Pausing here, the said private MRI was performed on 6 May 2015 at the Apex MRI Centre Ltd (“Apex”). A report was prepared by Dr Ivan Tsui (“Dr Tsui’s Report”).[11]  In it, Mr Chung was said to have degeneration, mild narrowing and posterior prolapse of the L4/5 disc with mild upward migration and adjacent small anterior marginal osteophytes. It was also observed that there was posterior bulging of the other lumbar discs and mild degenerative changes in the mid and lower lumbar facet joints, but no nerve impingement, cauda equine lesion, vertebral collapse, other fracture or bony lesion was seen in the lumbar spine.

30.Apart from the above, another MRI on Mr Chung’s lumbar spine was performed by Yan Chai Hospital Board Ng Shi Chow MRI Centre on 22 October 2015. In the report of Dr Rayson K T Lee (“Dr Lee’s Report”)[12], it was found that there was desiccated L4/5 intervertebral disc with mild disc flattening noted. In addition, the MRI showed that there was broad-based posterior disc extrusion at L4/5 level, with mild focal spinal stenosis but with no obvious focal compression of the cauda equine or impingement of the exiting nerve roots noted. Finally, no evidence of posterior annulus tear was detected in the lumbar spine.

31.Returning to the 1^st SKC Report, it was said that Mr Chung was prescribed with Voltaren SR, Panadol, Pepcidine, Tramadol, Naproxen, Phenergen and Analgesics Balm.

32.In another medical report dated 15 July 2017 (“2^nd SKC Report”)[13], Mr Chung’s complaints of increasing back pain and urinary incontinence for 2 days were recorded during the session on 7 November 2015. Examination revealed that there was diffuse tenderness over his back; SLR test performed on both legs resulted in 60° for the right side and 30° for the left. There was reduction of sensation over the whole left lower limb.[14] Perianal sensation and anal tone were intact. In view of such fresh complaint of urinary incontinence, Mr Chung was referred to the AED but he defaulted.

33.Mr Chung received his last follow-up treatment from SKC on 21 September 2016. It was commented that his back pain was static, with overall improvement up to 30%. His right leg numbness was similar. Physical examination showed mild tenderness over right paraspinal muscle of lumbosacral spine. There was no bony tenderness. SLR test were 45° and 80° for the right and left side respectively. Upon forward flexion, Mr Chung’s fingers could reach mid-thigh level.

34.In his witness statement, Mr Chung corroborated on what was stated in the 2^nd SKC Report, and remarked that his pain became more serious at the time of the follow-up session on 7 November 2015. He also complained about the lack of apparent improvement on his condition in spite of the physiotherapy treatments that he had received.

KY Family Practice

35.In-between his treatments from SKC, Mr Chung visited the KY Family Practice on 6 February 2015 due to severe back pain. In his report dated 27 November 2015[15], Dr Chan Yiu Wing (“Dr Y. W. Chan”) said that examination showed tense paravertebral muscles at lumbar spine region, with limited ranges of movement including flexion, extension, and lateral flexion, while rotation movements remained relatively preserved. Dr W. Y. Chan diagnosed Mr Chung with back injury. Subsequent to that, Mr Chung was seen on 15 March 2015 and 18 March 2015. During these sessions, Dr W. Y. Chan observed that there was steady improvement after adequate resting, the severity of pain was reduced, and the paravertebral muscle spasm was relieved. However, Dr W. Y. Chan observed that there was slow progress of recovery.

Treatment by Dr Tio Man Kwun Peter (“Dr Tio”)[16]

36.Arrangement was made by J.V.’s insurer for Mr Chung to be treated by Dr Tio. The first session took place on 29 April 2015. Dr Tio observed that Mr Chung could walk independently. There was diffused back pain over right side and mid-line. The SLR test revealed 70° and 90° for the right and left side respectively. Dr Tio diagnosed Mr Chung with right sciatica, with the opinion that the same was caused by the Accident. Dr Tio granted sick leave from 29 April 2015 to 13 May 2015. He also advised for MRI to be taken on his lower spine, hence the MRI performed by Apex and Dr Tsui’s Report.

37.On 13 May 2015, Mr Chung attended a follow-up session with Dr Tio. With Dr Tsui’s Report, Dr Tio again diagnosed Mr Chung with right sciatica. SLR test performed on Mr Chung came back with the same results. Sick leave was granted from 13 May 2015 to 3 June 2015. Physiotherapy was recommended, and Mr Chung was referred to the Canadian Asian Neck and Back Institute (“CANBI”) for this purpose.

38.Thereafter, Mr Chung attended 2 more follow-up sessions with Dr Tio on 3 June 2015 and 23 June 2015. Dr Tio observed that there was minimal improvement, and SLR tests again produced the same results. Sick leave was granted up to 12 July 2015. In his report to the Employees’ Compensation Division of the Labour Department, Dr Tio concluded that the MRI showed PID of L4/5 with no nerve compression. His opinion was that the injury was likely related to the Accident. Having reached static physical condition, Dr Tio referred Mr Chung to the Board for assessment.

Physiotherapy with CANBI[17]

39.Mr Chung started his physiotherapy with CANBI after the initial consultation on 8 May 2015. At the said consultation, Ms Jag Lee (“Ms Lee”), the physiotherapist, performed a number of tests on Mr Chung. Of note were the SLR test and Waddell test. The former revealed that Mr Chung could raise his right leg at 20°. The latter showed that Mr Chung tested positive in only 1 out of 5 categories of the non-organic signed. Ms Lee remarked that this is clinically insignificant for pain-focused behaviour.

40.Subsequently, Mr Chung attended a total of 12 sessions of physiotherapy with CANBI. It was reported that there was 30% overall improvement in his lower back, but the numbness sensation in his right leg remained unimproved. The SLR test showed that the right leg could reach 30°. Ms Lee opined that Mr Chung had attained maximal medial improvement thus he was suitable to be assessed by the Board.

Examination by Dr Chun Siu Yeung (“Dr Chun”)

41.Further to the treatments from Dr Tio and Ms Lee, J.V.’s insurer sought opinion from Dr Chun on Mr Chung’s condition. Examination was fixed for 7 August 2015 and attended by Mr Chung. In his report dated 23 September 2015 (“Dr Chun’s Report”)[18], Dr Chun was very critical with Mr Chung’s complaints of radiating pain and numbness of right lower limb, citing the lack of imaging findings which showed impingement of the nerve. Mr Chung had also failed the Waddell Simulation tests, having 3 positive results out of 4 categories. There was no muscle wasting at the thighs, calves and buttocks in spite of the complaints of radiating pain and numbness. The cumulative effect of these, Dr Chun said, suggested that there was likely expansion of symptom. Dr Chun also preached the need to be sceptical with any complaints of low back pain, as the spontaneous onset of it is very common, and is exceedingly common in the general population, with or without minor trauma. Back pain, Dr Chun remarked, frequently occurs without any identifiable cause.

42.Apart from the above, Dr Chun shared his view on the degeneration found on Mr Chung’s lumbar spine. He first referred to the MRI studies conducted on asymptomatic volunteers, which showed features such as disc dehydration, disc bulging, disc protrusion, annular tear in a high percentage of these volunteers but they were without low back pain at all. Relying on these studies, Dr Chun eliminated the suggestion that any degeneration found on Mr Chung must have been caused by the Accident as he had no history of lower back pain. He then proceeded to explain that Mr Chung’s degeneration changes could not be caused by the Accident, as they should take much longer to develop and be asymptomatic despite their existence. Referring to Dr Tsui’s Report, Dr Chun said that the absence of T2 signal at the L4/5 disc bulge indicated that it was not a new but old bulge. Dr Tsui opined that, at most, one could say the contusion injury (which was Dr Chun’s diagnosis of Mr Chung’s injury), had triggered the onset of the symptom of low back and radiating symptom, if Mr Chung indeed had no prior symptom. He added that, even in the absence of the Accident, either as a result of the nature of low back pain or some other events in life, Mr Chung would have low back pain and referred pain at any time in any event.

North Kwai Chung Clinic GOPC (“NKC”)

43.On 22 January 2016, Mr Chung sought help from NKC for his persistent lower back pain and numbness on his right leg. His pain was aggravated with standing for more than 10 minutes. In the report dated 3 July 2017 (“NKC Report”)[19], examination revealed mild limping gait on walking. There was tenderness over right lower back paraspinal muscle with forward flexion up to mid-thigh. SLR was 30° on the right side and 60° on the left side. There was decrease in sensation over whole right lower limb. The clinical impression was right sciatica after back sprain. Mr Chung was advised to await orthopaedics specialist review and physiotherapy.

Orthopaedics & Traumatology Department (“O&T”) of YCH

44.His long-awaited consultation with the O&T of YCH materialised on 26 September 2016. According to the report of Dr Kam Wing Lok dated 27 June 2017 (“Dr Kam’s Report”)[20], clinical assessment showed that there was diffused tenderness over Mr Chung’s lumbar region. The motion was stiff with some degree of right-sided muscle spasm. There was mild decrease in sensation and power of his right leg as compared with the left. The gait was seen to be normal. Review of all the performed imaging studies (presumably Dr Tsui’s Report and Dr Lee’s Report) revealed no obvious abnormalities or neural compression. It was noted that Mr Chung was prescribed with analgesics and physiotherapy.

45.As Mr Chung’s clinical progress was static by the time of the said examination, the O&T referred him to occupational therapist for work assessment and rehabilitation. When he was followed-up by the O&T on 9 December 2016, 27 January 2017 and 3 April 2017, his condition was found to be similar.

46.After receiving the assessment from occupational therapist that Mr Chung was unfit to resume his previous job, Dr Kam issued the Certificate of an Employment’s Permanent Unfitness for a Particular Type of Work on 27 January 2017, for the reason that there was unsatisfactory recovery despite intensive treatment and rehabilitation.[21]

Physiotherapy Department (“PD”) of YCH

47.There are 2 reports prepared by the physiotherapists. The first report by Ms Yan Fung Ping dated 10 November 2015 (“Ms Yan’s Report”)[22], and the second one by Ms Lo Siu Yuk dated 6 July 2017 (“Ms Lo’s Report)[23].

48.In Ms Yan’s Report, she explained that Mr Chung was referred to the PD of YCH by the AED of RTSKH, with diagnosis of right sciatica. He first attended PD of YCH on 5 February 2015. On assessment, the range of trunk flexion and extension was 1/2 and 1/3 of normal range respectively. Results of straight leg raising test showed the right side was 40° and the left side was full. There was 40% sensation deficit over his right leg, and the muscle power of his lower leg was normal. Mr Chung was then given physiotherapy with intermittent pelvic traction, hot pack, back and stabilisation exercises.

49.On 1 June 2015, Mr Chung reported that was 20% improvement. The trunk flexion remained 1/2 of the normal range.

50.He defaulted from the scheduled subsequent session, until he was referred to the PD of YCH again by SKC on 9 October 2015, with the diagnosis of sprain back. As per Ms Lo’s Report, Mr Chung attended physiotherapy session on 24 June 2016, complaining of pain over right lower back which radiated to his right leg. On assessment, Mr Chung’s range of movement of trunk flexion was about 1/3 and extension was about 1/2 with pain at the end of range. SLR test of the right leg was about 40°.

51.After a course of physiotherapy treatment was received, Mr Chung’s subjective improvement was about 10%. The range of movement of trunk flexion and extension was about 1/2 with pain at the end of range. Result from SLR test for right leg was about 60°. He was discharged with home exercise on 21 September 2016.

52.In his witness statement, Mr Chung explained that he felt there was minimal improvement of his condition despite having attended quite a number of sessions during the first course of physiotherapy. Hence the therapist suggested that he should suspend the treatment to determine the effect of physiotherapy to his condition. He added that the second course of physiotherapy did not bring about much improvement as well.

Occupational Therapy Department (“OTD”) of Princess Margaret Hospital (“PMH”)

53.As said, Mr Chung was referred by the O&T to the OTD of PMH for occupational therapy. According to the report of Ms Alky Yu dated 26 June 2017 (“Ms Yu’s Report”)[24], work rehabilitation services were provided to him from 7 November 2016 to 9 January 2017, which included work capacity evaluation, regular reassessments and work hardening training. After receiving his last therapy session, Mr Chung’s work capacity was assessed to be unmatched with the previous job demands as a personal trainer. There was discussion on his job plan, during which Mr Chung said he planned to change his job. OTD reported Mr Chung’s condition to the O&T, and he was discharged from the OTD on 6 February 2017.

Ha Kwai Chung Polyclinic General Out Patient Clinic (“HKC”)

54.Although this episode received no attention in Mr Chung’s evidence, nor much attention from the experts in their reports, I find this an intriguing one for reasons that I will later on cover in this assessment.

55.As per the report dated 5 July 2017 prepared by Dr Chow Sheung Yan Alex (“Dr Chow’s Report”)[25], Mr Chung attended HKC on 22 February 2017, complaining of epigastric pain for about 1 year. He informed Dr Chow that he was previously on nonsteroidal anti-inflammatory drugs (“NSAIDs”) for pain relief. Haemoglobin level and liver function tests were both normal. Esophagogastroduodenoscopy was performed on Mr Chung on 28 March 2017, which showed that he suffered from chronic gastritis. He was treated with Pantoloc and the symptoms improved.

Psychiatric problems and treatments

56.On 16 January 2015, apart from his follow-up treatment at RTSKH, Mr Chung attended the West Kowloon Psychiatric Centre (“WKPC”). He acquired psychiatric assistance for his fear of having to face extended period of recovery for his injuries and the persisting pain he endured on his back and right leg. He was worried about his working ability and how he would be financially affected by it; his worries and back pain led to unstable mood and insomnia. The two reports from WKPC dated 5 July 2016 (“1^st WKPC Report”)[26] and 16 August 2017 (“2^nd WKPC Report”)[27] confirmed as much. Mr Chung was prescribed with antidepressants and hypnotics.

57.In the 1^st WKPC Report, it was said that Mr Chung last attended WKPC on 13 May 2016, despite another follow-up session was scheduled for 22 July 2016. In the last session he attended, Mr Chung reported that his sleep had improved with psychiatric medications, but his mood was still low and he was worried about his ability to resume work in the future. There was no psychotic symptoms and Mr Chung denied having any suicidal ideas. He was diagnosed with depression and treatment was rendered accordingly. Mr Chung was prescribed with 45 mg of Mirtazapine at bedtime, 100 mg of Pregabalin at night, and 7.5 mg of Zopiclone at bedtime when necessary.

58.The 2^nd WKPC Report revealed that Mr Chung had resumed his follow-up psychiatric treatment after 13 May 2016. It was reported that his sleep had partially improved with medications, but the quality of his sleep was still affected by the pain. The pain had also caused Mr Chung’s mood to be dysphoric, and he felt frustrated due to his financial problem. On mental state examination, Mr Chung’s mood was euthymic, without any psychotic symptoms or suicidal ideas. He was given the same prescriptions with follow up sessions arranged.

59.Notwithstanding the said remark that his mood was euthymic, Mr Chung in his evidence complained that the psychiatric treatments did little to improve his sleep and mood.

Sick leave

60.For his sickness, Mr Chung was granted sick leave from 11 January 2015 to 31 May 2017, a total of 902 days.[28]

His health conditions pre-Accident

61.Mr Chung reckoned that, save for sporadic hypertension (which was regularly checked and all along under control), he was generally healthy prior to the Accident. He claims to be strong (he spent 2 hours per day working-out at the gym, and could weight-lift 200 lbs), energetic, agile and could manage long working hours.

62.Notwithstanding the above, he confessed that he had physical injuries in the past. First, he sustained injuries to his neck in a traffic accident about 10 years before 2018.[29]  He received treatment from the United Christian Hospital and fully recovered from the same after having rested for 1 month. Then in 2012, he pulled his left shoulder whilst exercising. He fully recovered from this with treatment from RTSKH and 2-week rest.

63.On the psychiatric side, his problem started in 2011 when he was mired in the divorce with his former wife and the by-product of it in the form of care over their daughters. His treatment from WKPC for depression started in August 2011 and is documented in the 1^st and 2^nd WKPC Reports. He was treated with antidepressants and hypnotics, resulting in gradual improvement and medications being discontinued since February 2012. Mr Chung then defaulted his follow-up session since June 2013 as he claimed to have fully recovered from this episode of depression.

His health post-Accident

64.Mr Chung whined that the series of treatment that he had received could not cure the persistent pain he felt on his waist and right leg, and the numbness on the latter. His doctors had also told him that there was no chance for full recovery from the same.

65.He expounded that during the initial stage his injuries, there was immense pain on his waist and his right leg together with numbness, so much so that he had difficulty walking. In spite of the treatments he received, the pain persisted (and would become worse during weather change and rainy days), and he had to consume painkillers on daily basis. The pain would resurface once the effect of the painkillers subsided. The condition limited his range of movement; he could not bend or extend his waist, unable to carry heavy objects (carrying object which exceeded the weight of 20 lbs for over 5 minutes), and even had difficulty putting on his socks due to the lingering pain. The pain from his waist radiated to his right leg all the way down to this right foot. Persistent pain and the recurring numbness on his right leg led to its lack of strength and increased pain on his waist after walking for a period of time, mandating stoppage and rest. Mr Chung had to walk slowly, and jogging was no longer possible. Standing for prolonged period of time would also render the pain more serious. For these reasons, he was mostly grounded at home save for attending medical treatments and works.

66.Mr Chung added that the pain affected his sleeping condition, often causing insomnia or sleep interruption, weakening his vitality and dampening his mood. He commented that he became easily annoyed with tendency to throw a fit.

67.He next presented on how his injuries had affected his daily life. Regarding the loss of amenities, Mr Chung said that before the Accident, he enjoyed gatherings and dining-out with colleagues and friends, and he would exercise every day. But due to his back pain, he had turned down invitations from friends and colleagues, and exercising became extinct. Such enforced idleness resulted in him growing fat but at the same time decreasing in confidence, another reason for him to avoid social gatherings. In addition, he was fond of swimming in the past; even though his doctors recommended such activity for rehabilitation purpose, the frequency of swimming since the Accident was reduced due to the pain. By the time his supplemental witness statement was filed on 31 October 2019, Mr Chung said he had made his peace with the reality that he could no longer resume his pre-Accident job as a fitness trainer. His mood had therefore improved, allowing for gradual resumption of social gathering with friends.

68.Mr Chung admits that the relationship with his family also turned sour after the Accident. He often argued with them due to his volatile mood caused by the pain, the stress of having to acquire treatments at various clinics, and the dire state of his financial situation. He became easily annoyed with his daughters and seldom played with them due to the pain that he suffered.

69.Mr Chung further said that he would do his own chores whilst residing in Shenzhen. But with the reduced range of movement at the waist and the associated pain, it was impossible to do these chores (eg washing and hanging clothes, wiping the table and windows etcetera), he had to trouble his girlfriend, and later on his mother after he moved back to Hong Kong and lived with her.

70.His working capacity was not immune from the adverse effects caused by the injuries. His original job as a fitness trainer required extensive amount of physical demands, including but not limited to weight-lifting exercises, flexion and extension of the lower back, and movements of extremities; these became impossible for him after the Accident as they would escalate his agony.

71.He did seek manageable alternative employment (ones that did not require prolonged standing and walking, or physically demanding) after the end of his sick leave period, but his options were limited due to his education background and the scepticisms that potential employers held against him due to his disabilities. Fortunately, he was able to secure an employment with T-Rex Engineering Limited (“T-Rex”) since 2 May 2017 as a purchasing clerk, earning a monthly salary of HK$10,000.[30]  Mr Chung reported that his job duties with T-Rex gave him a mix of office works and running errands outside the office, so that he was not required to sit/stand/walk for extended period of time. The undemanding nature of his job also allowed him to work from home at times, and to take a breather during work when needed.

72.Mr Chung added that T-Rex often hired part-time employees to ease its workload. As he wanted to enhance his earnings, Mr Chung accepted extra duties on part-time basis since February 2019, working at construction sites on some physically undemanding tasks like conducting visual inspections on LED lights, connecting electrical cables, assist in the installation of circuit boards, transporting materials with electrically-powered trolley, and etcetera. Despite working at construction sites, he was not required to carry or lift any weighty objects. He could also rest whenever he felt any discomfort or fatigue at his waist or right leg area. With the part-time duties, Mr Chung was able to generate on average HK$6,000 more per month on top of his salary of HK$10,000.

Surveillance

73.J.V. had commissioned the making of 4 surveillance reports on Mr Chung. In his supplemental witness statement, Mr Chung specifically addressed on the last surveillance report dated 30 June 2016 (“4^th Surveillance Report”) compiled by Verity Consulting Limited (“Verity”).

74.In the 4^th Surveillance Report, Verity captured Mr Chung’s movement to and from Shenzhen on 29 and 30 May 2016. In his response, Mr Chung repeated that he was residing intermittently at Shenzhen at the material times, and he was unemployed. He also highlighted from the video recordings that he walked slowly to cater for his discomfort, and when he was required to bend-over to pick up some groceries, it entailed him slightly bending his knees and squatting so as to reduce the degree of flexion of his back. Mr Chung said that he was still on painkillers every day, and when the condition was especially bad on a certain day, he would take painkillers 4 times per day, 1 to 2 pills each time. He remarked that when the painkillers were taking their effect, he could walk, flex and extend his back and carry objects normally. Aside from his physical condition, he also continued to take psychiatric medications to help with his sleep.

Mr Chung’s evidence under cross-examination

The Accident

75.Mr Ho started his cross-examination by playing a video in court showing how the Accident happened.[31]  He then took almost a frame-by-frame dissection of the recording with Mr Chung. Below are what Mr Chung had agreed on: -

(1) The floor beneath the Smith Machine was padded with a plastic mat.

(2) At the start of the exercise, the Student was backing up a bit, then split his legs to a point which was vertically parallel to his shoulders. This was to enhance the Student’s stability when he squatted.

(3) The Student then started squatting. Whilst doing so, his feet did not move. Mr Chung explained that this was due to the weight of the barbell on his shoulders, and the friction of the plastic mat.

(4) At the time when the Student was squatting, Mr Chung was behind him and squatted together; Mr Chung used his right hand to press the Student’s belly.

(5) The Accident happened between 10:37:44 and 10:37:46. The Student was holding the barbell when he fell. When it was dropping, the barbell did not drop vertically but slightly backward, and it went all the way backward once the barbell reached the safety device.

(6) The Student did not fall on top of Mr Chung, notwithstanding that Mr Chung described as such to the experts in psychiatry. However, Mr Chung added that when the Student fell, he was falling with much speed. This created a greater force when the Student’s back hit Mr Chung, thereby also accelerating the speed and force when Mr Chung hit the ground.

The pain he endured/exaggeration/malingering

76.Mr Ho turned his attention to the pain Mr Chung claimed to have suffered. He first referred Mr Chung to the attendance records prepared by PD of YCH, which showed that Mr Chung attended physiotherapy treatments about 3 to 4 times per month from February to May 2015.[32]  When asked, Mr Chung said that they were helpful in easing his pain, yet not very good. His condition would fluctuate despite the treatments. He commented that he felt better after getting electrotherapy, as it would ease the tightness on his back, but the effect of the same would not last long and the pain would reappear.

77.Next, Mr Ho referred Mr Chung to the Spinal Assessment Form created by the PD of YCH dated 5 February 2015.[33]  In it, it was recorded that the N.P.R.S.[34] was 3-4 out of 10. Then, as per the Rehabilitation Assessment Report dated 8 May 2015 (“1^st RA Report”)[35] and prepared by Ms Lee of CANBI, Mr Chung reported that his level of pain was 6-7 out of 10. Apart from this, the Work Rehabilitation Assessment prepared by the OTD of PMH[36] showed that during the examination on 9 January 2017, the level of severity of pain experienced by Mr Chung remained at 6-7 out of 10 under movement, and 5 out of 10 at a static position.

78.Relying on the above, Mr Ho questioned, in spite of the physiotherapy treatments that he had received from PD of YCH and CANBI, Mr Chung seemed to have regressed in his level of pain. Mr Chung said, if he had taken painkillers before the physiotherapy session, his level of pain at the time of examination would be lower. He added that one of the painkillers he took contained morphine. Apart from medications, he explained that the level of pain also varied depending on the activities that he had on the day in question.

79.Following up with the painkiller that contained morphine, Mr Ho suggested none of the medications that Mr Chung was prescribed with contained morphine and he was just exaggerating. This was disputed by Mr Chung. He said that the doctor from SKC told him that the green tablets contained morphine. The doctor advised him not to take the green tablets on regular basis; they should be taken only when it was necessary. Together with the green tablets, Mr Chung said that he also received pills that would ease stomach irritation.

80.Mr Chung was referred to the consultation summary of SKC on 13 July 2015,[37] where it was reported that there was no radiating pain. He was then shown the consultation summary dated 7 August 2015.[38]  It was recorded therein that the SKC consultation took place at 9:27 am on that day. Mr Ho compared it with Dr Chun’s Report. The examination on Mr Chung was conducted on the same day (i.e. 7 August 2015) between 3:01 and 4:25 pm.[39] Dr Chun’s Report recorded that there was radiating pain as informed by Mr Chung.[40]  Based on these reports, Mr Ho pointed out that Mr Chung did not have radiating pain in the morning, but the same surfaced in the afternoon, and queried why this was the case. In his answer, Mr Chung reiterated he took medications before the morning examination, and the effect of which had subsided in the afternoon. When he met with Dr Chun, he simply reported on his condition at the time.

81.Staying on the differences between the SKC consultation summary for 7 August 2015 and Dr Chun’s Report, the former showed that Mr Chung complained of persistent lower back pain, but there was none in the afternoon as shown in the latter. Mr Chung speculated that could have something to do with the doctors in question pressing on different regions of his back. He stressed that he simply related on how he felt at the time.

82.Mr Ho continued his hunt for inconsistencies by comparing the consultation summary of SKC dated 21 September 2016[41] and the consultation summary of the O&T of YCH dated 26 September 2016.[42]  The former reported that Mr Chung walked unaided, with mild tenderness at right back paraspinal muscle, whereas the latter revealed he had persistent back pain radiating to his right leg. Mr Ho questioned why there was deterioration of conditions within these 5 days. Mr Chung responded by stressing once again that most of the time when he was scheduled to meet with a doctor, he would refrain himself from taking any painkillers beforehand, so that the doctors could gain insight of his condition without the effect of medications. However, if he was in intolerable pain, he would deviate from such practice and take the painkillers. He could not recall whether he had taken any medications before his appointment with SKC on 21 September 2016. However, he recounted that on 26 September 2016, his appointment at the O&T of YCH was supposedly scheduled for the morning but he was made to wait for a long time before his interview with the doctor. Thus, by the time the examination started, he had been painkiller-free for an extended period of time. He further explained that the numbness of right leg happened every day, whereas the pain would vary from day to day, and even at different times of the day. Mr Chung expressed that his pain would generally be worse in the morning, better in the afternoon, and relapsed to worse at night.

83.The next focus of Mr Ho’s cross-examination was on the discrepancies in the results from SLR tests as shown in various reports. Mr Chung’s answers to these were that his conditions fluctuated. As to why the SLR test conducted on 7 November 2015 by SKC reported that his right leg performed better than his left, he had no answer to it, but the suggestion that he malingered was denied. Mr Chung explained that there were, at times, some mild discomforts on the left leg, but the same were mostly confined to the middle part of the back.

84.Regarding his gait, Mr Chung agreed that he could walk without aid after the Accident. Mr Ho then referred to the consultation summary of SKC on 23 February 2015 (with the descriptions that Mr Chung walked unaided with normal gait)[43], the Rehabilitation Follow Up Report prepared by Ms Lee of CANBI dated 1 June 2015 (“2^nd RA Report”) (with the descriptions that on 29 May 2015 Mr Chung walked slowly in the clinic with a mild limping gait favouring his right leg)[44], and the NKC Report (with the descriptions that on 22 January 2016 Mr Chung had mild limping gait on walking). To the question why his limping became worse over times, Mr Chung’s answer was that his condition fluctuated, as he had previously explained.

85.Mr Ho then brought Mr Chung’s attention back to 7 August 2015. On that day, Mr Chung visited SKC in the morning and Dr Chun in the afternoon. The surveillance report prepared by Charlton Consulting for the month of August 2015[45] (“1^st Surveillance Report”) was then introduced to Mr Chung. After watching in court the video recording starting from 16:55:00 on that day, Mr Chung agreed that after visiting Dr Chun, he was walking with normal gait, unaided, and at normal speed. He also agreed that he walked faster than some of the other road users shown in the video. In addition, Mr Chung had no quarrel that he was seen walking for over 20 minutes, which contradicted with what he had reported to Dr Chun (i.e. walking for more than 20 minutes would require rest; could not continue to walk). He explained that, at the time, he had taken medications thus he could walk better.

86.Apart from the above, the 1^st Surveillance Report revealed that on 23 June 2015, after attending an appointment with Dr Tio[46], Mr Chung was shown walking with normal gait and pace between 18:00:24 and 18:30:03. Mr Ho suggested that the video recording showed Mr Chung could walk with normal gait and without pain. To this, Mr Chung replied that he could walk with normal gait, but not without pain. He supplemented that he did not walk for over an hour after visiting Dr Tio, as suggested by Mr Ho. He had rested when he went into the shop where his girlfriend was working, to have some food that he bought. I interposed with questions as to where the shop was located and the name of the shop. Mr Chung answered that the shop was on Po Ning Street, and its name was “E-buy”, and the sign outside the shop was purple in colour. Pausing here, I observe that his narratives above were corroborated by the 1^st Surveillance Report. It was revealed therein that he did go in and out of a shop named “BUY-e” at various times starting from 17:02 (and during the period visited a number of shops to buy food), and stayed inside “BUY-e” between 17:24 and 17:34, and between 18:14 and 18:26.

87.Turning to his visits to KY Family Practice, Mr Chung acknowledged that Dr Y. W. Chan was his family doctor. For this reason, he wanted Dr Y. W. Chan to render second opinion on his conditions apart from the treatments given to him by the public sector. Mr Chung stopped doing so after 3 sessions as Dr Y. W. Chan charged him HK$200 per treatment whilst he only needed to pay HK$80 each time he was treated at the public clinics. Mr Chung’s colleagues also reminded him that sick leave given by doctors from the public sector would have more credence. He rejected Mr Ho’s suggestion that he ceased visiting Dr Y. W. Chan because the doctor only diagnosed him with a sprain back, as that was not what Dr Y. W. Chan had described to him during their consultations.

88.On physiotherapy, Mr Ho’s cross-examination started with the first course that Mr Chung received from the PD of YCH. There was no dispute that the same ended on 1 June 2015, i.e. less than 4 months after the course was started. Although it was said in Ms Yan’s Report and Ms Lo’s Report that he defaulted physiotherapy session after 1 June 2015, Mr Chung denied that it was the case. He repeated that the first course was halted after discussions between him and the physiotherapist; he was told to suspend the treatments. But for such suggestion from the physiotherapist, he saw no reason for defaulting sessions as alleged, since he was unemployed and had a lot of time on his hands. In support of his willingness to receive physiotherapy treatments, Mr Chung highlighted that he did request for and received the second course of them.

89.On the second course of physiotherapy from PD of YCH, Mr Ho cited the consultation summary of SKC on 9 October 2015 and questioned why Mr Chung only requested to resume treatments 4 months after the last session. Mr Chung answered that between June and October 2015, he received physiotherapy treatment from CANBI as arranged by the insurer of J.V.,[47] and tried acupuncture treatments at YCH as an alternative following the doctors’ suggestion. Mr Ho corrected Mr Chung that, as per the SKC consultation summaries, the acupuncture treatments happened sometime in mid-2016.[48]

90.Throughout his evidence, Mr Chung repeatedly remarked that the treatments he received could not cure his pain and there was only mild improvement on his conditions. Mr Ho challenged that if Mr Chung was unhappy with the treatments he received from public sector, he could always try those from the private sector. Mr Chung answered that he had experiences with physiotherapy treatments from the private sector when his neck was injured, and he was charged over HK$1,000. He considered the charge to be expensive, even though he was earning on average over HK$80,000 at the time; he maintained that the fee of over HK$1,000 was expensive in 2015 even though he had HK$270,000 in his bank account.[49]  Mr Ho pressed on with this topic, suggesting that HK$1,000 per session of physiotherapy should be acceptable if Mr Chung could spend HK$2,570 for MRI from YCH. To this, Mr Chung rebutted that he had to incur such costs only because the insurer of J.V. refused to provide the MRI they had done for him (presumably Dr Tsui’s Report).

91.Unsurprisingly, Mr Chung’s urinary incontinence did not escape Mr Ho’s attention, and this was the topic to conclude his cross-examination. Mr Chung confirmed accuracy of the description of his incontinence condition in SKC’s consultation summary for 7 November 2015, i.e. urinary incontinence on 4 occasions in 2 days. Mr Chung confessed that in spite of the arrangement to attend AED for examination of this condition, he had absconded from it. He said the doctor of SKC who gave him the initial examination was a female, and she inserted her finger into his anal. He felt embarrassed and did not want to relive this at the AED.

92.I asked Mr Chung whether his incontinence problem had been resolved, and he replied in the negative. He said the condition would only become serious with greater numbness of his leg, and at worst it would only cause him to wet his underwear.

Mr Chung’s evidence under re-examination

93.Since Mr Ho suggested that Mr Chung had lied about how the painkillers improved his mobility when confronted with the 1^st Surveillance Report, Mr Szeto referred Mr Chung back to his witness statement, where he had repeatedly given the same descriptions.

The joint orthopaedic experts’ report

94.Dr Wong See Hoi (“Dr Wong”) is the orthopaedic expert instructed by Mr Chung for this case. Together with Dr Lam Kwong Chin (“Dr Lam”) for J.V., they have prepared a joint orthopaedic expert report dated 31 October 2017 (“JOR”). As a preview of what to come, not much could be agreed between the experts be it in the JOR or at the assessment hearing.

Background

95.As per the norm, the JOR sets out the background of Mr Chung, the treatments that he had received, the findings of his treating doctors, history of his past injuries, and etcetera. The information has been sufficiently reproduced earlier in this assessment, save that Mr Chung had elaborated further to the experts about his pre-Accident works to the experts. He said he used to work 11 to 12 hours per day, 6 days a week. About 1/3 of his time was spent in administrative works, whilst the remaining 2/3 was used on training his clients. In spite of his works, he could still squeeze out 2 hours daily for his own training, boasting his ability to lift over 200 lbs of weight.

96.Aside from these, Mr Chung informed the experts that he would acquire ultrasound on his epigastric pain on 19 December 2017.

Complaints

97.At the time of the joint examination, Mr Chung reported that he had the following problems: -

(1) On and off back pain more on the right side. The pain could be provoked by bending back, lifting weight of 20 lbs for 5 minutes, and exertion. The pain affected his sleep. He remarked that his back-pain condition had improved by 40%.

(2) Intermittent radiation pain to the right lower limb, along lateral thigh to sole, with weakness of his right leg.

(3) Mr Chung said, after the Accident, he could no longer engage in physical training. Consequentially, he had gained much weight, from 180 lbs before the Accident to around 200 lbs at the time of the joint examination.

Examination

98.Examination conducted by Dr Wong and Dr Lam revealed that Mr Chung had a muscular build, with a height of 178 cm, and weighing 93 kg (204.6 lbs). Regarding his gait, the experts observed that he could walk normally and unaided. He could stand on either side single-legged, but added that Mr Chung was less steady on the right side. He could stand and walk on tiptoes or heels. He was able to squat fully, but had to rise with hand support. Mr Chung had no apparent distress sitting for 30 minutes, and when he rose from the seat, he could do so smoothly.

99.Turning to Mr Chung’s back, the experts reported that: -

(1) he was not using any spinal support;

(2) there was no external deformity, swelling or scar;

(3) there was no loss of lumbar lordosis;

(4) he complained of tenderness at midline (from L3 to coccyx) and right side (from lower paraspinal area to calf, maximal at buttock);

(5) there was no paraspinal muscle spasm; and

(6) back movement limited by pain (forward flexion 30°/60°; backward extension 10°/25°; sideward flexion on each side 20°/25°).

100.On his lower limps, the experts found: -

(1) there was no length discrepancy;

(2) no deformity, swelling or scar;

(3) thinner right thigh muscle;

(4) satisfactory and symmetrical hip, knee and ankle movement;

(5) girth of thigh 43.5 cm on the right and 44.5 cm on the left;

(6) girth of calf 37.5 cm on both the right and the left;

(7) SLR at supine position 45° on the right and 70° on the left;

(8) SLR at sitting position 45° on the right and 70° on the left;

(9) sensory loss of 20-30% in right thigh and 30-40% below right knee, normal on the left leg at both regions; and

(10) motor and reflexes on both legs were normal.

101.X-rays of lumbar spine and pelvis were taken. The investigations showed that: -

(1) density appeared normal;

(2) lumbar lordosis was preserved;

(3) mild degenerative changes with marginal osteophytosis in the lower lumbar spine;

(4) L4/5 disc space was mildly narrowed;

(5) posterior elements and pelvis were intact; and

(6) there was no evidence of spondylolysis or fracture.

102.With the above, the experts rendered their views on various aspects of Mr Chung’s condition. I will, in the following section, first set out the agreements between Dr Wong and Dr Lam, which is so scant as I have indicated above, should be no more than a 5-minute read.

Agreements

103.Both experts agreed that, based on initial findings, Mr Chung probably had a contusion to low back or sacral region, with local tenderness and with symptoms radiated to right leg. The treatment he received, namely medications and physiotherapy, was standard and appropriate. On the bases that it was almost 3 years after the Accident, and Mr Chung had received lengthy course of treatment, further conservative treatment probably would not change his condition significantly. Orthopaedically, Mr Chung had reached maximal medial improvement from the Accident. Both experts agreed that no surgery should be done despite that they had different grounds for coming to the same conclusion.

104.Based on the MRI reports, Dr Wong and Dr Lam agreed that the marginal osteophytes and mild degenerative changes in the mid and lower lumbar facet joints are pre-existing bony changes due to degeneration. The main pathology was at L4/5.

105.Apart from the above, the experts agreed that Mr Chung’s past health, in particular his physical and psychiatric ailments, were not directly related to the Accident, but they would partly affect the overall fitness of Mr Chung.

106.Finally, both experts opined that the back pain would have mild adverse effect on Mr Chung’s activities of daily living. Dr Wong added that Mr Chung might encounter discomfort when performing weight training and heavy type of household chores.

107.With these out of the way, now on with the disagreements.

L4/5 disc

108.Dr Lam reiterated that the L4/5 disc changes were pre-existing and degenerative in origin. In support, he cited the diminished water-binding capacity (desiccation, dehydration) and decreased T2 signals (dark disc) as seen in Dr Lee’s Report. The loss of water content would also lead to diminished tissue support, hence the disc narrowing/flattening/bulge. The subsequent delamination of the annulus fibrosus also resulted in circumferential annular tears and radial tears, which further reduced the capacity of the disc to dissipate compressive loads and the development of disc herniation/prolapse/extrusion, as revealed in Dr Tsui’s Report and Dr Lee’s Report.

109.Dr Lam added that disc prolapse/extrusion from a single accident is highly unlikely. He explained that, based on biomechanical studies, the disc is stronger in vertical loading than the vertebral bodies. Loads high enough to rupture a disc suddenly would tend to fracture a vertebral body first. For these reasons, Dr Lam said that the disc changes in Mr Chung were typically due to wear and tear phenomenon that occurred over the years and was not the result of a single loading event. In his opinion, changes found at Mr Chung’s L4/5 disc was aggravated by his own bodyweight and years of weight-training. Dr Lam opined that Mr Chung’s PID was not due to the Accident.

110.Before leaving this topic, Dr Lam emphasised that the MRI scans showed there was neither associated nerve impingement, nor focal compression of the cauda equina or impingement of the exiting nerve. As such, it was unlikely that the L4/5 disc would cause clinically significant neurological complaint or deficit.

111.Dr Wong’s answer to all these was sciatica. He explained that people with injury to musculo-tendinious over the back should have symptoms localised to the back. However, those with injury to either the discs or surrounding soft tissue around the discs or the facet joints area causing direct compression, irritation or ischaemic changes of the sciatic nerve may lead to symptoms mostly pain spreading along the course of the sciatic nerve. Dr Wong then cited the Accident & Emergency Records of Dr P. Chan dated 11 January 2015[50] and the Referral Letter issued by RTSKH dated 16 January 2015[51], which documented pain radiated to right leg. The consultation summary of SKC dated 30 January 2015 reported that examination revealed nerve tension sign (with SLR testing R 50 and L 80) was positive over right side; decreased right foot and big toe dorsiflexion power 5/-5 and reduced pin prick sensation over right L5 dermatome. Based on the above, Dr Wong opined that the clinical features were compatible with L5 radiculopathy.

112.Dr Wong further referred to Dr Lee’s Report, which showed that the signal change was chiefly over L4/5 level with no abnormality noted over other lumbar discs. He remarked that a single disc involvement at L4/5 with broad-based posterior disc extrusion causing mild focal spinal stenosis was likely directly contributed by the Accident rather than the result of a chronic wear and tear process (the degeneration) that multiple levels of disc involvement is expected. He added that the broad-base extrusion disc at L4/5 causing mild focal stenosis might account for the development of right L5 radiculopathy that was probably the result of ischaemia of the right L5 nerve root related to the stenosis at the exit of L5 nerve root as a result of the disc extrusion.

Examination

113.Dr Lam said that the diffuse numbness on Mr Chung’s right leg could not be explained by a L4/5 pathology, i.e. they were non-verifiable complaints. As to the difference of 1 cm on the girth of the right and left thighs, Dr Lam explained such discrepancy was not a clinically significant one.

114.Unlike Dr Lam, Dr Wong had much to say on this topic. He first commended Mr Chung as being co-operative during the joint examination, and had tried to finish all tests assigned. During the tests, Mr Chung had demonstrated tenderness over right side of his back, buttock down to the right thigh. Dr Wong remarked that the reduction of girth of right leg, his dominant leg, of 1 cm indicated mild degree of muscle atrophy probably related to pain, the disuse muscle atrophy.

115.However, Dr Wong also opined that the reduced sensation of the whole lower limb was not consistent with dermatomal distribution. The power of Mr Chung’s right leg was normal, and all simulation tests performed demonstrated negative results. Dr Wong said Mr Chung should have recovered partially from his right sciatica with residual symptoms over his back and right leg.

Working capacity & Prognosis

116.Dr Lam commented that most people with back or buttock contusion but no substantial structural damage or neurological deficit could return to their previous job, even strenuous ones. And based on the more objective parts of the findings, Dr Lam opined that Mr Chung should be able to continue with his pre-Accident work at the gym, in particular if he had an active role in administration. Dr Lam said Mr Chung’s pre-existing depression since 2011 and his shoulder injury in 2012 might partly affect his performance in the job.

117.Finally, Dr Lam considered that Mr Chung should have no difficulty working in jobs similar to those he had in the past, i.e. working in his family business, running a logistic business and served as a trainer for disabled persons.

118.As expected, Dr Wong took a different view on Mr Chung resuming his pre-Accident job as a personal fitness trainer. He noted that in his previous role, Mr Chung had to work for 11 to 12 hours per day, which was proportioned into 30% administrative work and 70% training work. On the latter, Dr Wong cited the occupational therapy records, which pointed to the critical physical demands of a fitness trainer, including: frequent walking on ground; climbing; balancing; stooping; kneeling; crouching; reaching; and handling. The records also assessed that the physical demand level as very heavy, which required frequent lifting, carrying, pushing and pulling of weight over 50 lbs. Against these backgrounds, Dr Wong expounded that Mr Chung could resume the administrative side of his previous job, and even demonstrating and training his clients for stretching. However, Mr Chung might encounter substantial difficulties or limitation if he resumed the physical side of his work, i.e. weight lifting training or any type of heaving lifting and carrying, prolonged walking, kneeling, crouching and etcetera. Overall, Dr Wong agreed with the latest occupational therapy assessment that Mr Chung’s work capacity did not match the job demands as a personal fitness trainer, with significant degree of limitation. Dr Wong concluded that Mr Chung’s alternative employment as a merchandising clerk was suitable for him.

Sick leave

119.As aforesaid, Mr Chung was granted sick leave from 11 January 2015 to 9 March 2017 by the Board. Dr Wong agreed with the Board’s assessment, whilst Dr Lam had much to complain about this.

120.Dr Lam found the sick leave to be unduly prolonged and unnecessary. He justified such view first by commenting that a person should be encouraged to return to normal activities of daily living as soon as possible after the injury, in order to maximise and expedite full recovery. And judging by the nature of injury, namely an uncomplicated contusion, together with the expected progress and work environment, sick leaves up to 6 months should be the maximum. Dr Lam added that, in principle, sick leave should be stopped if the condition was static or stable enough. It is unnecessary for the same to continue until full recovery, as it might not be achieved in most cases, otherwise there was no need for compensation. He noted that it is very common for middle-aged workers to carry on working with some back pain, especially when the pain is not due to compensable cause.

121.Dr Lam continued on with his criticism that lengthy sick leave, which were given indefinitely and with no expectation of significant improvement from specific treatment, do not have therapeutic value and should not be endorsed. In the contrary, the lengthy sick leave might enhance Mr Chung’s sick role and de-motivated him from seeking early return to his work.

122.Dr Lam ended this topic with a lecture on the relevance of sick leave certificates. He remarked that sick leave was granted on the subjective symptoms reported by the attending doctors at the consultations. If the finding was that the patient could have gone back to work after certain period, that is the period that is relevant to the assessment and not the mere presence of sick leave certificates. The certificates cannot be treated as conclusive evidence of whether a person is fit to work or not.

Percentage of impairment and loss of earning capacity

123.Both Dr Lam and Dr Wong adopted the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “AMA Guide”), the 6^th Edition, and its Table 17-4: Lumbar Spine Regional Grid: Spine Impairments. Both experts also considered that Mr Chung falls within Class 1, but their agreements ended there.

124.Dr Lam opined that Mr Chung suited the description of non-specific chronic, or chronic recurrent low back pain, also known as chronic sprain/strain, symptomatic degenerative disc disease, facet joint pain, SI joint dysfunction, etcetera. As there was documented history of sprain/strain type injury with continued complaints of axial and/or non-verifiable radicular complaints and similar findings documented in previous examinations and present at the time of evaluation, Dr Lam remarked that Mr Chung should have impairment of 1% of whole person. And based on the possible adverse effect of the back injury on the working potential, Mr Chung’s loss in earning capacity was assessed to be 2%.

125.Unlike Dr Lam, Dr Wong considered that Mr Chung’s condition comparable with intervertebral disk herniation at a single level with documented resolved radiculopathy at clinically appropriate level or non-verifiable radicular complaints at clinically appropriate level present at the time of examination. Dr Wong graded Mr Chung as having 8-9% impairment of whole person, but reduced it by 20% to account for the pre-existed single disc degeneration. Dr Wong therefore recommended a range of 6-7% impairment of whole person. As to the loss of earning capacity, considering the nature of Mr Chung’s occupation, Dr Wong recommended 6-7%.

Apportionment

126.Stemming from their agreement that there was pre-existing condition, each expert rendered their views on how the same would affect Mr Chung. Dr Lam speculated that, even in the absence of the Accident, Mr Chung would still develop similar back pain within 2 to 3 years. To justify his opinion, Dr Lam repeated Mr Chung’s habit of weight lifting was one of the causes. He added:-

(1) the spinal degeneration would continue to deteriorate with time;

(2) on the assumption that Mr Chung did have back pain before the Accident, it would imply that his back was in a rather vulnerable state, as his fall during the Accident was just a low energy one; and

(3) the magnitude of strain to the back is commonly encountered in daily activities, in particular when Mr Chung had the habit of weight training, it would imply that with his pre-existing spinal condition, he would still reach a stage similar to that he was in at the time of the assessment.

127.Dr Wong opined that Mr Chung would fall within the second category out of the 3 possible categories, i.e. there is a strong possibility that some other event, or natural progression of the condition, would have brought about the present state. Dr Wong repeated that he would apportion 80% fault on the Accident; without it, Mr Chung might manage his work well till his retirement, because the natural progressed stenosis or sciatica would most likely occur at around the age of 60 to 70, and by then he would be retired.

Other examinations

128.Dr Lam found it unnecessary for Mr Chung to be examined by other specialties, whilst Dr Wong thought that opinion from psychiatrist should be sought concerning the degree of psychological impact related to the Accident.

Dr Wong’s evidence at the assessment hearing

Examination-in-chief

129.Mr Szeto took the opportunity to consult Dr Wong on whether any of the medications prescribed to Mr Chung contained morphine as alleged in his evidence at trial. After referring to the consultation summary of SKC on 30 January 2015, Dr Wong pointed to “Tramadol” as one containing morphine. Upon my inquiries, Dr Wong explained that Tramadol is a painkiller which would not be easily prescribed by doctors, as morphine is addictive, despite that its coating was aimed to prevent it. He would not go to the extent by saying that such medicine would be rarely prescribed, but Tramadol is definitely not as common as Panadol. Dr Wong agreed that Tramadol is a medicine which is somewhere in-between “not usually prescribed” and “not prescribed unless in extreme situations”.

Cross-examination

130.Mr Ho started his cross-examination with follow-up questions on Tramadol. These resulted in Dr Wong agreeing to his suggestion that Tramadol is like a “second-line” type of painkiller, with lowest line being medicines like Panadol, and the highest line being direct injection of morphine. Dr Wong agreed that the dosage prescribed to Mr Chung, i.e. 50 mg, is of a lower content. There could be heavier dosage like 100 mg. Dr Wong described Tramadol as codeine-like, with a number of side effects, for example dizziness, drowsiness and even nausea. As such, Tramadol was not commonly prescribed.

131.Turning to the topic of sciatica, I read out in court the following passage from Oxford Concise Medical Dictionary for Dr Wong’s comments: -

“sciatica n. pain felt down the back and outer side of the thigh, leg and foot. It is usually caused by degeneration of an intervertebral disc, which protrudes laterally to compress a lower lumbar or an upper sacral spinal nerve root. The onset may be sudden, brought on by an awkward lifting or twisting movement. The back is still and painful. There may be numbness and weakness in the leg. Bed rest will often relieve the pain but surgical treatment is occasionally necessary.” (emphasis added)

132.Dr Wong agreed with the above definition. He added that pain along the buttock down to the thigh and to the lateral part of the leg, is compatible with L5 nerve root. If the compression is on L1/L2 level, the person would feel pain radiating down to the hip and anterior thigh, but not down to the leg.

133.Dr Wong confirmed that his diagnosis of the pain Mr Chung suffered stemmed from L5 radiculopathy. He also agreed with the definition provided in the 5^th edition of the AMA Guide[52]:-

“Radiculopathy for the purposes of the Guides is defined as significant alteration in the function of a nerve root or nerve roots and is usually caused by pressure on one or several nerve roots. The diagnosis requires a dermatomal distribution of pain, numbness, and/or paresthesias in a dermatomal distribution. A root tension sign is usually positive. The diagnosis of herniated disk must be substantiated by an appropriate finding on an imaging study. The presence of findings on an imaging study in and of itself does not make the diagnosis of radiculopathy. There must also be clinical evidence as described above.” (emphasis added)

134.Dr Wong rebuffed Mr Ho’s suggestion that, based on the definition above, whereas there was no damage to the nerve root, even if there were changes at L5, there would not be any radiating pain to the leg. He argued there could be discogenic pain when there is disc injury. But this, he confessed, was never considered when he compiled the JOR.

135.Mr Ho then inquired into the SLR tests. Dr Wong agreed that where the result of such test revealed 70° or above, it could be regarded as normal. The fact that Mr Chung’s SLR test on the right could only achieve 50° was regarded by Dr Wong as one of the symptoms which supported radiculopathy. When Mr Ho confronted him with the information that Mr Chung could achieve 70° on 6 February and 18 March 2015 on his right leg as per Dr Y. W. Chan’s notes[53], Dr Wong queried whether Dr Y. W. Chan had used a measuring stick or other similar equipment to do the measurement. Dr Wong added, for SLR test, what is critical is that the doctor should compare the results between the 2 legs. On this point, Mr Ho showed Dr Wong the result of the SLR test conducted by the AED of RTSKH on 16 January 2015. It was recorded therein that Mr Chung achieved 60° on both legs.[54]  Mr Ho suggested that such finding pointed to the absence of any radiculopathy. Dr Wong countered this by referring to a record immediately below the SLR test results, which described something was positive on the right and negative on the left. Dr Wong opined that, if the same were results of the Lasègue’s test, which is a test supplemental to the SLR test, they could show that there was a difference in the condition of the right and left legs.

136.At this juncture, Mr Ho played the video recording of the Accident to Dr Wong. After viewing the same, Dr Wong agreed that Mr Chung landed on his buttock at the material time, not at the region where L4/5 is located. However, He added that the force could be transferred upward along the spine from the buttock to L4/5, and in some cases even to L1. Dr Wong further clarified that the fall as depicted in the video recording was not a symptom, but a documentary of how it happened. He accepted that in the ambulance record no radiating pain was reported,[55] but such complaint had found its way to the AED record on 15 January 2015, i.e. 5 days after the Accident. Dr Wong considered that the radiating pain was a progressive symptom.

137.Dr Wong confirmed the conclusion he gave in the JOR. i.e. Mr Chung’s condition was due to the Accident instead of the pre-existing degeneration, came about by deduction, as chronic wear and tear process would involve multiple levels of disc. On top of this, Dr Wong emphasised that the disc extrusion was another factor which he relied on to come to such conclusion. He expounded that disc extrusion is a more serious type of disc protrusion, and is commonly known as bulging disc. Finally, Dr Wong considered Mr Chung’s radiating pain was asymptomatic, as there was no such complaint prior to the Accident (even with the training and weight lifting), but appeared 5 days after the Accident.

138.Dr Wong was then referred to §56 of Dr Chun’s Report,[56] where Dr Chun commented that the MRI studies on asymptomatic volunteers showed features such as disc dehydration, disc bulging, disc protrusion, annular tear; in a high percentage of these volunteers but they were without low back pain at all. The study by Jensen MC et al in 1994 recorded that, amongst the 98 subjects aged between 20 to 80 years old, 52% of them had bulging disc at 1 level. In other words, 52% of the volunteers had degeneration even though there was only bulging disc at 1 level.  Dr Wong agreed with such observation from Mr Ho, but he added that under the same study, only 1% of the volunteers would have asymptomatic degeneration due to disc extrusion, which indicated its rarity.

139.Mr Ho turned his focus to Dr Wong’s comment in the JOR[57] that there was no abnormality noted over other lumbar discs. He confronted Dr Wong with the impression provided in Dr Tsui’s Report that there were mild degenerative changes in the mid and lower lumbar facet joints. In his reply, Dr Wong said that he did not regard the same as abnormality for a trainer who is over 40 years of age. However, he did take them into account when doing the apportionment. Dr Wong reiterated that, in his view, the only abnormality was the disc extrusion.

140.Dr Wong disagreed with Mr Ho’s suggestion that the fall Mr Chung endured at the time of the Accident was no difference from the strenuous exercises that Mr Chung went through on daily basis, hence the fall itself could not have caused the disc extrusion. Dr Wong explained, for weight lifting, the load was deliberate and would be absorbed by the muscles. On the contrary, the fall was unanticipated therefore the force created by it was not endured by the muscles. For illustration of his point, Dr Wong used the cases where patients could get injured even from sneezing.

141.Through a series of questions, Mr Ho was able to get Dr Wong to agree, first, none of the doctors who treated Mr Chung diagnosed him with L5 radiculopathy. Second, at the time of the joint examination, there was no radiculopathy for Mr Chung, but with mild reduced sensation and persistent pain on the right side being recorded. In the middle of the discussion, Dr Wong turned his focus on the difference in the girth of Mr Chung’s thighs. He remarked that, as Mr Chung is right hand dominant, generally his right arm and leg would be about 0.5 cm thicker than the non-dominant side. As such, the normal girth for the right thigh should be 45 cm (based on 44.5 cm of the left thigh + 0.5 cm). However, as revealed during the joint examination, Mr Chung’s right thigh girth was only 43.5 cm. This meant, Dr Wong said, there was a loss of 1.5 cm of the girth. This, in turn, was a reflection of the pain that Mr Chung had on his right leg.

142.Dr Wong’s opinion on the difference in girth was contested by Mr Ho with reference to the 5^th edition of the AMA Guide[58], where it was stated that, for reasons of reproducibility, the difference in circumference should be 2 cm or greater for thigh atrophy. Dr Wong acknowledged the definition of atrophy, but tried to distinguish its application to Asians. He said that the AMA Guide was made in accordance with Caucasians who are larger in size as compared to Asians. Thus this definition is not applicable. Hearing this, Mr Ho referred to Mr Chung’s recorded weight of 93 kg (204.6 lbs) at the time of joint examination, asserting that he was heavier than most Asian males. Dr Wong agreed that Mr Chung was heavy, but maintained that the AMA Guide was not applicable. He regarded Mr Chung as fat. At this juncture, I interposed with the observation that Mr Chung was recorded in the JOR as muscular built, not fat. Dr Wong agreed. He also agreed that muscles are heavier than fats.

143.Turning to his remark at §88 of the JOR about ischemia changes of the sciatica nerve leading to the symptom of pain spreading along the course of the sciatica nerve, Dr Wong explained that ischemia is a lack of blood supply. It could not be detected by MRI as it is not sensitive enough to show a lack of blood supply to the disc; it would require the use of an arteriogram. Dr Wong said that the disc extrusion at L4/5 would cut off or reduced the blood flow to the L5 nerve root, causing ischemia.

144.On the topic of ischemia, when confronted with the absence of such view shared by the other doctors, Dr Wong first snubbed Dr Chun’s report in its entirety, accusing Dr Chun to have disregarded all the recorded medical findings and relied solely on the MRI reports. There was neither any recorded SLR test, nor the record of thigh muscle wasting. Moreover, the examination conducted by Dr Chun was done shortly after the Accident, when there was fewer information available to Dr Chun to make an accurate assessment.

145.Dr Wong emphasised that his view on ischemia was shared by physiotherapists and doctors from the public sector who had treated Mr Chung. When Mr Ho clarified that these physiotherapists and doctors mentioned only sciatica and nothing about ischemia and radiculopathy, Dr Wong’s response was that they are all the same. Ultimately, Dr Wong said he disagreed with Dr Tsui’s Report and Dr Lee’s Report that there was no impingement of nerve found. The disc extrusion had caused a space-occupying effect, which in turn caused ischemia, thereby compressing the nerve downward to the L5 area and right leg. He repeated that disc extrusion is not a mild condition.

146.Exaggeration was the next topic of Mr Ho’s cross-examination. In his answers to Mr Ho’s questions, Dr Wong admitted that such topic had never crossed his mind. When he was referred to the Waddell Simulation Test conducted by Dr Chun on Mr Chung, and the results showed that 3 out of 4 categories were positive, Dr Wong disputed the appropriateness of such test. He expounded that Waddell Simulation Test should not be conducted on a patient with psychiatric illness, as admitted by Professor Gordan Waddell himself. As it was well documented that Mr Chung had psychiatric illness before the Accident, and such illness flared-up once again thereafter, the Waddell Simulation Test should never have been conducted on him.

147.Dr Wong, though admitting that the SLR test was another device to detect exaggeration, asked that one should not read too much into the same conducted by Dr Chun. In Dr Chun’s report, it was recorded that the SLR test on Mr Chung’s right lower limp was 20°, and 80° when performing the Flip test. Dr Wong agreed that these findings could be regarded as a clear case of exaggeration, but he repeated that the tests were conducted shortly after the Accident. Come what may, results from the SLR tests under supine and sitting conditions during the joint examination were consistent and showed no sign of exaggeration.

148.Mr Ho then referred to the complaints Mr Chung had as recorded in Dr Chun’s Report.[59] After perusing the same, Dr Wong concurred that based on these complaints, one would expect to see muscle wasting on the right leg of Mr Chung. However, the record showed that not only was there no muscle wasting, the leg girth on the right was even 0.5 cm thicker than the left leg.[60]  Dr Wong agreed that Mr Chung’s complaints and the measurements recorded were not compatible with each other. Dr Wong went further to agree that it was possible Mr Chung was exaggerating his condition to Dr Chun, especially taking into account the inconsistent results from the SLR and Flip tests.

149.On the loss of sensation over the whole right leg, Dr Wong accepted that such complaint is inconsistent with L5 radiculopathy, and he agreed with Dr Lam’s opinion that the diffuse numbness could not be explained by L4/5 pathology. Dr Wong added that both he and Dr Lam remarked that Mr Chung’s condition falls within Class 1 under the AMA Guide, where there were some non-verifiable radicular.

150.Dr Wong rejected Mr Ho’s suggestion that, since Mr Chung landed on his buttock at the time of the Accident, he should have sustained soft tissue injury to his buttock. Dr Wong reiterated that it would depend on where the force of the fall impacted. Dr Wong also disagreed with the suggestion that radiculopathy would cause pain only to the leg but not the buttock and thigh; in fact, radiculopathy was the direct cause for these. That being said, he agreed with Mr Ho that for the back pain, it should be due to some muscular injury.

151.Sick leave was the last topic covered in Dr Wong’s cross-examination. Mr Ho asked Dr Wong whether he would agree with Dr Lam’s assessment that simply for soft tissue contusion injury, the appropriate sick leave period should be 6 months; Dr Wong’s reply was in the negative. He agreed that the said sick leave period would be reasonable for a clerk. However, Mr Chung was a trainer, and 80% of his work would require lifting weights. As such, Dr Wong doubted that 6 months would be sufficient for Mr Chung to recover and resume his pre-Accident employment. On the assumption that Mr Chung only sustained soft tissue injury, Dr Wong’s take on the reasonable sick leave period should be 9 to 12 months based on his occupation.

Re-examination

152.Dr Wong has no recollection as to whether he and Dr Lam conducted Waddell Simulation test on Mr Chung at the joint examination, although in most cases they would.[61]  Upon checking his own record, it was revealed that the simulation tests referred to in the JOR[62] were: vertex compression test; shoulder compression test; shoulder elevation test; pelvic rotation test; and pinch test. The results for all these tests were negative.[63]

153.Mr Szeto concluded the re-examination with the question as to whether, without the disc extrusion, a person could feel any discomfort solely with degenerative condition. Dr Wong answered that most people could tolerate the discomfort created by mild degeneration, but there could also be cases where the patients would have some symptoms.

Dr Lam’s evidence at the assessment hearing

Evidence-in-chief

154.This segment was short, simply for Dr Lam to tender his own notes which showed that no simulation test was conducted on Mr Chung during the joint examination.[64]

Cross-examination

155.Regarding the simulation tests performed on Mr Chung during the joint examination, Dr Lam confessed that he had omitted such information from his own record by mistake. He believed in what was recorded in Dr Wong’s notes, i.e. simulation tests were conducted and the results were negative.

156.Dr Lam agreed that, in spite of the pre-existing degeneration, there was no record showing Mr Chung had received medical treatment for pain stemming from the same before the Accident. He had no quarrel with the suggestion that the state of Mr Chung’s spine degeneration remained more or less the same for about 2.5 years between the Accident and the time of the joint examination. Any changes during that time, Dr Lam opined, was insignificant.

157.Dr Lam rejected Mr Szeto’s suggestion that Mr Chung’s condition had worsened over time as evidenced by Dr Tsui’s Report and Dr Lee’s Report. Dr Lam said that broad-based posterior disc extrusion was not more serious than posterior prolapse with mild upward migration. They are just different descriptions. Dr Lam also took the opportunity to point out that the description of broad-based disc extrusion adopted in Dr Lee’s Report is actually self-contradictory. He was at his wit’s end understanding why this description was used when it was also stated in the report that there was no compression of the nerve at spinal cords. Neither the doctors in YCH nor Dr Chun found there to be any abnormalities after viewing the MRI image (neither Dr Wong nor Dr Lam viewed the same).

158.Dr Lam elaborated further that, with the findings that there was no compression of the nerve at the spinal cords in Dr Tsui’s Report and Dr Lee’s Report, it meant that the protrusion was a minor one, and with the space occupying effect as suggested by Dr Wong. Dr Lam went on rendering a lecture on the difference between protrusion and extrusion. He said both protrusion and extrusion are protrusion. In the former case, the protruded part would not be broader than the base. But for extrusion, that means the protruding part is actually wider than the base, creating an image that the protruding part is like a head and the base is like a neck.

159.Dr Lam clarified, when he in the JOR remarked that Mr Chung could resume his pre-Accident job, he was actually suggesting Mr Chung to do more teaching rather than weightlifting. He opined that when Mr Chung trained his clients, weightlifting would not be engaged.

160.From the medical reports provided, Dr Lam observed and agreed that all doctors and therapists, including Dr Tio, diagnosed Mr Chung to be suffering from right sciatica. Dr Lam also noted Dr Tio’s finding of PID of L4/5 was due to the Accident. He agreed that these diagnoses were clinically justifiable at the time when Mr Chung was examined by the treating doctors and Dr Tio respectively.

161.When asked, Dr Lam said even though he did not agree with the findings of the doctors (on sciatica), Dr Tio (on PID), and Dr Kam (on whether Mr Chung could resume his pre-Accident job), it was not his duty to pin-point in the JOR whether someone was wrong and gave comments on the same.

162.On the diagnosis of sciatica, Dr Lam said this was just a term used to describe pain radiating to the leg. He added that there is a whole world of difference between sciatica and radiculopathy. The latter would involve compression of nerve, which is obviously absent in the case of Mr Chung. Dr Lam rejected the suggestion that there was clinical evidence at the joint examination to justify L5 radiculopathy. He also disagreed that the difference of 1 cm of the thighs’ girth was one evidence to justify such a finding.

Re-examination

163.Dr Lam explained that the doctors in SKC, when they made the diagnosis of right sciatica, was not provided with Dr Tsui’s Report and Dr Lee’s Report. With the MRI reports, Dr Lam formed a view which is different from those treating doctors. The sciatica could not have been caused by radiculopathy.

164.As to the PID, Dr Lam relied on what he had said in the JOR to counter Dr Tio’s finding that it was caused by the Accident; PID would take time to develop, and the mode of Mr Chung’s fall during the Accident could not have led to the same.

The joint psychiatric expert report dated 23 November 2017 (“JPR”)

165.The JPR was compiled by Dr Law Wun Tong (“Dr Law”) and Dr Peter W T Yu (“Dr Yu”) instructed respectively by Mr Chung and J.V. Unlike the orthopaedic experts, Dr Law and Dr Yu’s views on Mr Chung’s psychiatric condition are largely harmonious. As we shall see below, some of the opinions held by Dr Yu are even more favourable to Mr Chung as compared with those from Dr Law.

166.Dr Law and Dr Yu started the JPR by listing out the documents that they had perused, including the 1^st and 2^nd WKC Reports, and the JOR. They had also set out the medical history, in particular, Mr Chung’s past psychiatric problem, at the start of the JPR.

167.Mr Chung’s mental symptoms post-Accident are recorded in the JPR. They are listed below: -

(1) Mr Chung used to sleep 6 to 7 hours soundly before the Accident, although there were times when he had bad sleep due to thoughts. Immediately after the Accident, he lost his sleep due to the pain; he was able to nap for 2-odd hours after taking hypnotic. Recent to the assessment, Mr Chung would take bedtime medications near mid-night and went to bed shortly after. It would usually take him 45 minutes before falling asleep, and thereafter his sleep hours would vary. Sometimes, he would wake up after 2 hours due to pain, and then be half-asleep until 8 a.m., or he would choose to leave bed and do stretching.

(2) He started to worry about his future a week or two after the Accident. The doctors in YCH told him to accept his condition. His mood varied with the pain and sleeplessness. When the pain was most severe, he did not want to live, but not to the extent that he would take his own life. Losing his fitness affected his self-esteem, so much so that he would avoid his neighbours. He did not consider himself as worthless, just unlucky. Mr Chung became less depressed after he had accepted his disabilities.

(3) Mr Chung said that his appetite was slightly reduced initially after the Accident, and further reduced when he started to worry. Despite so, due to the lack of exercise, he had gained weight by more than 20 lbs. He had started to consume even lesser food in order to avoid further weight gain.

(4) Mr Chung said that he used to have good memory, since serving as a manager with J.V. required him to remember a lot of things. But his memory deteriorated after the Accident, like he had forgotten to attend appointments. In spite of this, it did not affect his performance in the new employment.

168.During the joint examination, the experts observed that Mr Chung was neatly dressed and walked without a limp. His speeches were coherent and relevant. Mr Chung did not show strong emotions, and had no indications of having delusions or hallucinations.

169.Both Dr Law and Dr Yu diagnosed Mr Chung to have suffered from adjustment disorder with mixed anxiety and depressed mood. Dr Law remarked that Mr Chung’s emotional turmoil is reactive to the stressful consequences of the Accident. These stressors included the physical pain, the unemployment and worries about future working capacity, and the financial strain.

170.Regarding the pre-existing condition, both experts agreed that it has nothing to do with the mental symptoms that Mr Chung had after the Accident. As to precipitating cause and perpetuating cause, Dr Yu found that the development and persistence of mental symptoms, respectively, are entirely attributable to the Accident.

171.On the question of treatment required, Dr Yu remarked that psychotherapy could help Mr Chung to adjust to the aftermath of the Accident. As to medications, Dr Yu said that Mr Chung could benefit from at least 1 more year of pharmacotherapy. Since Mr Chung has benefitted from the therapy rendered by WKC, there is no need for him to seek similar therapy from the private sector. Dr Law, on the other hand, suggested that Mr Chung has reached maximal medical improvement. He needed another 6 sessions from WKC to taper off the medications, and the cost for such treatment is about HK$1,000.

172.As to prognosis, Dr Yu found that at the time of the joint examination, Mr Chung had mild symptoms and mild functioning impairment. He would continue to improve after completion of another year of treatments. Dr Law, conversely, remarked that Mr Chung’s mild mental symptoms would not affect his function of holding a full-time job and independent in personal care. Dr Law believed that the major stressor that may perpetuate the mood turmoil is the residual physical symptoms, with many of the psychosocial stressors being either resolved or would soon be resolved. Dr Law further justified his believe by reference to the JOR, highlighting that, notwithstanding the differences between Dr Lam and Dr Wong, both of them agreed that the physical impairment is in the mild range (i.e. 6-7% vs 1%). Nevertheless, Dr Law opined that Mr Chung will have mild mood disturbance due to the residual physical symptoms.

173.On the question of whether Mr Chung could return to his pre-Accident job as a fitness trainer, Dr Yu believed that Mr Chung is mildly-impaired due to mental symptoms. He is mentally capable of taking up an alternative job like his current one. On the other hand, Dr Law is convinced that Mr Chu is capable of resuming his pre-Accident job, mentally speaking. The limiting factor is his physical disabilities.

174.Dr Yu said Mr Chung did not require sick leave due to mental symptoms in addition to that given for physical symptoms. Dr Law suggested that sick leave for 3 months after consultation with psychiatrist in January 2015 is sufficient for the mental problem.

175.Finally, Dr Yu and Dr Law assessed Mr Chung’s impairment and loss of earning capacity due to adjustment disorder to be 5% each.

Analysis on the Issues

176.Having set out in the above the factual and medical evidence, I will now dive into the issues as formulated by the parties.

177.As reproduced in the above, both experts agreed that Mr Chung had contusion to low back or sacral region due to the Accident. This alone would represent a very low degree of impairment of whole person and loss of earning capacity. In spite of how the issues were worded, one could easily observe that the true contention in the present case is whether Mr Chung suffered from radiating pain and numbness of right lower limb; the issues revolved around them in the quest for the answer.

Findings on the 1^st and 2^nd Issues

178.There are diverse views as to the cause of the alleged extrusion. I use the word “alleged” notwithstanding how the 1^st Issue was worded, as one could see from Dr Lam’s evidence at the assessment hearing that he was quite critical on such finding by Dr Lee (see §157 above). In my view, such criticism is not justified when Dr Lam, admittedly, had not seen the MRI image. His reliance on the lack of abnormality observed by Dr Chun after viewing the MRI image is problematic; Dr Chun was only provided with the MRI image prepared by Apex and Dr Tsui’s Report. Neither the MRI image prepared by YCH nor Dr Lee’s Report was perused by him. As to the lack of abnormality remarked by Dr Kam of YCH after viewing the MRI image, neither Dr Kam’s Report nor his consultation notes revealed any disagreement with the finding of Dr Lee or, if he did, the bases Dr Kam relied upon to dispute it. There is also no clarification from Dr Kam as to the true and exact meaning of “no obvious abnormalities” that he had stated. In addition, I note from the 2^nd SKC Report that the finding of disc extrusion was accepted. Finally, I do not quite follow Dr Lam’s comment about the lack of compression of nerve at spinal cords, and how this would be seen as contradictory to Dr Lee’s finding of disc extrusion. Such comment would make sense if compression of nerve was an inevitable consequence of disc extrusion, but Dr Lam had not gone to such extent in his evidence. Overall, there is nothing that could dissuade me from accepting the observation of disc extrusion by Dr Lee.

179.I will also add that I do not accept Dr Wong’s disagreement with Dr Lee’s Report and Dr Tsui’s Report that there was no nerve impingement. Admittedly, he had never seen the MRI images taken by Dr Lee and Dr Tsui.

180.The next question is whether the disc extrusion was caused by the Accident. This, in my view, comes hand-in-hand with the question of whether the radiating pain and right leg numbness complained of by Mr Chung are genuine. As we can see in the segments below, Dr Wong relied heavily on these symptoms to justify the diagnosis of sciatica, which in turn founded his believe that it was due to the broad-based extrusion disc at L4/5. As there was no reported radiating pain or right leg numbness suffered by Mr Chung prior to the Accident, Dr Wong’s opined that the disc extrusion was caused by the Accident.

181.Dr Lam, on the other hand, queried the genuineness of the radiating pain and right leg numbness, as there was no impingement of nerve, in spite of the disc extrusion. Hence, there was no justification for the diagnosis of sciatica; it follows that the absence of pre-Accident complaint of radiating pain and right leg numbness was neither here nor there, and certainly not an indication that the disc extrusion was unquestionably caused by the Accident. Pausing here, Mr Szeto in his closing submissions argued that Dr Lam had in the JOR already accepted there were radiating symptoms from the localised pain (see §103 above). As such, Dr Lam should be barred from questioning its genuineness. I disagree. In the said agreement, Dr Lam was simply acknowledging the presence of the symptom. This does not serve as an impediment to doubt its genuineness.

182.In support of Dr Wong’s view, Mr Szeto stressed that the doctors who treated Mr Chung, and even Dr Tio (whom was instructed by J.V.’s insurer), diagnosed him with sciatica, in spite of Dr Tsui’s Report and Dr Lee’s Report showing no nerve impingement. It was also submitted that the complaint of radiating pain appeared immediately after the Accident, and it is unimaginable that Mr Chung would be so extremely calculated and sophisticated that he could fake or exaggerate the same when he was attended by the AED of RTSKH. Pausing here, Mr Chung was reported to have no radiating pain when he was attended to by the ambulance attendant.[65]

183.On this point, Dr Lam suggested during re-examination that the treating doctors had not been provided with Dr Tsui’s Report and Dr Lee’s Report when they made the diagnosis; had they been provided with the same, they would not have suggested that the sciatica was caused by radiculopathy. I think such assertion cannot be furthest from the truth. Review of the SKC consultation summaries and the 2^nd SKC Report show that Dr Tsui’s Report and Dr Lee’s Report were considered by the doctors. The criticism is equally inapplicable to Dr Tio, as Dr Tsui’s Report was directly addressed to him. Moreover, neither the treating doctors nor Dr Tio had in their reports mentioned anything about radiculopathy; this is the lone view taken by Dr Wong.

184.Be that as it may, I do have doubts that Mr Chung suffered from sciatica.

185.First, as I have cited to Dr Wong (and he agreed) at the assessment hearing (see §131 above), the diagnosis of sciatica would engage a finding of lateral protrusion to compress a lower lumbar or an upper sacral spinal nerve root, which is missing in our case. I also see that this was accepted by the court in a number of cases, for example Lai Kin Man v Sung Yim & Anor.[66]  Against such definition, and in view of Dr Tsui’s Report and Dr Lee’s Report, it is unknown on what bases that the treating doctors and Dr Tio made the diagnosis of sciatica. Unlike Mr Szeto, I do not think that this is a matter which could be resolved simply by popular votes. On this point, I also note the comments of Master Leong in Singh Bal Winder v IWS Waste Management Co Ltd & Anor[67] and Ale Thak Prasad v Tsang Chin Keung & Anor.[68]

186.In his submissions, Mr Szeto suggests that sciatica is not caused only by compression of nerve. There is however no medical journal adduced by him in support of such view and to contradict with the aforesaid definition as agreed by Dr Wong. Instead, he cited Dr Wong’s view that the extrusion of disc would cause occupying effect which would lead to ischaemia. Mr Szeto further submits that extrusion of disc would cause irritation to the surrounding nerve. Even short of nerve compression, these 2 factors would be sufficient pathological basis for the radiation of pain and numbness.

187.Dr Wong’s initial answer to Mr Chung’s radiating pain and right leg numbness came in the form of radiculopathy. I am not persuaded. This is never documented by any of the doctors. Omission of such from their records and reports is unsurprising: even though the clinical features were compatible with the same, and that there was extrusion of disc at L4/5, there is however neither any evidence to show significant alteration in the function of a nerve root or nerve roots, nor is there evidence to show there was any pressure on one or several nerve roots. These are essential imaging features of radiculopathy, as provided in the AMA Guide (see §133 above). Pausing here, Dr Wong’s countering of such omission with the idea of discogenic pain does not warrant serious consideration by this court when he has never considered it to be important enough to be included in the JOR.

188.Continuing on with the topic of radiculopathy, Dr Wong conceded any radiculopathy that Mr Chung had resolved by the time of the joint examination. Such opinion contradicts with Mr Chung’s case that he was still suffering from radiating pain and numbness to his right leg at the time of joint examination and at the assessment hearing. Furthermore, it would also break the chain of Dr Wong’s ultimate opinion, i.e.: (1) the disc extrusion caused ischaemia; and (2) L5 radiculopathy was the result of ischaemia.[69]  It thus begs the questions: (1) how and when the disc extrusion was healed; (2) without the resolving the issue of disc extrusion, could ischaemia be cured; (3) if the ischaemia remained uncured, what had caused the radiculopathy to subside or resolve. There is unfortunately no answer to these questions. It is doubtful that the radiculopathy was cured by the treatments and therapies that Mr Chung had received, considering how he had repeatedly complained that they had only led to minimal improvement.

189.Apart from the above, I am equally not convinced by Dr Wong’s recommendation that the cause of radiating pain is a product of ischemia changes of the sciatica nerve. In fact, I am baffled by how he came to such conclusion. At the hearing, he explained that ischemia could not be detected by MRI as it is not sensitive enough to show a lack of blood supply to the disc. He added that it would require the use of an arteriogram to identify the problem. However, I do not see an arteriogram had been used on Mr Chung; I have reservation as to how Dr Wong reached such conclusion. Dr Wong also said that the disc extrusion at L4/5 would cut off or reduce the blood flow to the L5 nerve root, causing ischemia. I wonder whether by this opinion Dr Wong actually meant that ischemia would be present whenever there was disc extrusion. If so, it would make his first point about the use of arteriogram redundant. I cannot reconcile how on one hand he suggested that not even the MRI is sensitive enough to spot ischemia, but on the other hand Dr Wong could make such finding simply based on the existence of disc extrusion and without the advocated use of arteriogram. Moreover, none of the doctors and therapists who treated Mr Chung diagnosed him with ischemia. When he was confronted on this by Mr Ho during cross-examination, Dr Wong simply asserted that sciatica, radiculopathy and ischemia are all the same. I do not see any of the doctors and experts in our case adopted the same stance or used these terms interchangeably in their records and reports. 

190.As to Mr Szeto’s submissions that disc extrusion, singly, would cause irritation to the surrounding nerve, unless I have missed it when he said so at the hearing, there is nothing written to this effect by Dr Wong in the JOR. Come what may, there is also no explanation from Dr Wong as to how the nerves have been compromised and its connection with the pain and other symptoms complained of by Mr Chung.

191.At this juncture, one could see that there is simply no medical explanation to Mr Chung’s radiating pain. As to his lower right leg numbness and loss of sensation, suffice it to say Dr Wong agreed at the assessment hearing and in the JOR that neither of them could be explained by L5 radiculopathy and L4/5 pathology. Dr Wong also said that the reduced sensation of the whole lower limb was not consistent with dermatomal distribution, and the power of Mr Chung’s right leg was normal (see §§115 and 149 above). I must add that none of the doctors and experts found that there was any neurology deficit suffered by Mr Chung at his lower limbs. All these contradicted Mr Chung’s case on the alleged loss of sensation and numbness on his right leg.

192.On the factual side of things, from the available consultation summaries created by his treating doctors, I note that the complaint of radiating pain appeared for only 12 times. The complaint was recorded on 11 January 2015 and 16 January 2015 by the AED of RTSKH; and out of the 120 consultation summaries prepared by the doctors of SKC, complaints of radiating pain were recorded in only 9 of them. [70]  As per the handwritten records of Dr Y. W. Chan, Mr Chung complained of radiating pain on 6 February 2015; the same disappeared in the consultation notes created on 15 March 2015 and 18 March 2015.[71]  This really damped down Mr Szeto’s submissions that he has enthusiastically pursued, i.e. that Mr Chung had made persistent complaints of radiating pain to the medical practitioners. I have not lost sight of Mr Chung’s evidence that his radiating pain was intermittent, but despite so, the infrequency of such complaint defeats the point about persistency that Mr Szeto emphasised on.

193.In the absence of persistent complaints of radiating pain, together with the fact that both Dr Lee’s Report and Dr Tsui’s Report showed there was no nerve impingement, it is a mystery why the doctors at SKC diagnosed Mr Chung with sciatica. One possible explanation is that the doctors were simply adopting the term to describe the picture that Mr Chung had presented to them. The fact that the AED of RTSKH had made such a provisional diagnosis without seeing the MRI images, Dr Lee’s Report and Dr Tsui’s Report, lends support to such possibility.

194.The above omissions become more glaring when Mr Chung’s own evidence is added into consideration. According to his narratives, he would avoid taking painkillers before the medical appointments so as to give the doctors the true and accurate picture of his condition, despite that the pain, as he had said in court and reported to Dr Chun, was most serious in the morning. This was said to be his general approach. He added that he would make an exception to it only when his pain in the morning was intolerable. I do not believe that it could be regarded as an exception if the same was adopted for the remaining 111 times he attended the SKC, i.e. by taking painkiller before consultation, when he either reported to have no radiating pain or there was no record of such. This is telling especially when in all 120 consultation summaries Mr Chung’s complaints of right lower limb numbness were recorded.

195.I am equally puzzled as to why Mr Chung did not see the need to register his persistent, or even on-and-off, symptom of radiating pain, if there truly were, with the doctors at SKC. One would appreciate that the doctors in SKC took the primary role in treating his ailments. The priority should be to let them have all the details of his condition, in particular his radiating pain, so that proper treatments could be rendered. For him not to do so is inexplicable.[72]  And for the same reason, I do not accept his explanation that he would only report to the doctors the symptoms that were present at the time of the consultations. In fact, he could not be doing so when he reported to the doctors that he had trouble sleeping at night due to back pain.

196.As to his walking gait (see §84 above), Mr Chung had explained that there could be on-and-off limping associated with his fluctuating condition. I see from the SKC consultation summaries that Mr Chung was reported to have mild limping gait during the first 5 consultations from 22 January 2015 to 12 February 2015. The limping gait reappeared about 1 year later on 6 January 2016, and became a permanent feature on the consultation summaries ever since. The same problem was reported in the NKC Report. One might consider that the limping gait was associated with the radiating pain, but that was not the case. There was no complaint of radiating pain when he was seen limping by the SKC and NKC doctors.

197.Notwithstanding the above, I have considered whether the limping gait was, instead of the radiating pain, caused by the alleged numbness of his right lower leg and persistent back pain. However, from the SKC consultation summaries, these complaints were present even during the said 11 months (February 2015 to January 2016) when he had no limping.

198.In addition, despite the first course of physiotherapy that Mr Chung had received from PD of YCH, level of severity of his pain had increased over time from 3-4 out of 10 (recorded on 5 February 2015), to 6-7 out of 10 as recorded in the 1^st RA Report (recorded on 8 May 2015) and the Work Rehabilitation Assessment of OTD of PMH (recorded on 9 January 2017). Mr Chung reiterated that the consumption of painkillers before the therapy session could have affected the result; yet, again, this was against his said general approach. Nor was this reported to the therapists at YCH, so that they could have an accurate picture of his progress. I agree with Mr Ho that Mr Chung’s condition had seemingly gotten worse with treatments. I can accept that there was no or minimal improvement in spite of the therapies and treatments, but to have his conditions deteriorated indicates that the treatments and the therapies rendered were either inappropriate or inadequate. But neither expert has made such a remark.

199.Inconsistencies seen in the results of his SLR tests are likewise inexplicable. According to Dr Wong’s evidence, an achievement of 70° would be seen as normal. Adopting this, one could see that the SLR test results on Mr Chung’s right leg achieved such grade on 6 February 2015 and 18 March 2015 when he was attended to by Dr Y.W. Chan.[73]  I do not accept Dr Wong’s ungrounded allegation that Dr Y. W. Chan might not have used a measuring stick or other similar device to do the measurement. In addition, the same could not be used to explain the same results (70°) coming from the SLR tests conducted by Dr Tio from April 2015 to June 2015, and by SKC between 10 August 2016 and 9 September 2016. Conversely, SLR tests conducted by SKC from 1 December 2015 to 22 June 2016 showed that Mr Chung’s left leg could only reach 60°. Adopting again 70° as the benchmark of normality, the results of 60° on his left leg should reflect that there was discomfort and warranted investigation as to its cause. Oddly though, none of these was documented.

200.On the other hand, if one is to adopt Dr Wong’s other opinion, i.e. to compare the results between the 2 legs, the SLR test result showed both lower limbs attained the same grade of 60° on 16 January 2015 when Mr Chung attended the AED of RTSKH. And this is not an isolated incident. Mr Chung’s right leg performed better than his left leg on 7 November 2015, i.e. 60° for the right side and 30° for the left (see §32 above). At the hearing, Mr Chung tried to explain away that he had some mild and intermittent discomforts on the left leg. This was, again, never documented. If what he said was true, the discomfort on his left leg must be so serious that the right leg (with alleged persistent radiating pain, loss of sensation and numbness) could out-perform it. By achieving only 30°, the discomfort at his left leg could not have been mild as alleged (not to mention the recorded loss of sensation for the whole left lower limb); equally, medical investigation to identify its cause could not have been neglected.

201.Moreover, the SLR tests conducted by SKC from 30 January 2015 to 3 March 2015 all showed that his right and left legs could reach 50° and 80° respectively. But subsequent SLR tests (from 1 December 2015 to 22 June 2016) produced results that showed there was regression on both legs, i.e. 30° and 60° respectively for right and left legs. I see that Mr Chung was not receiving any physiotherapy from 1 December 2015 to 22 June 2016. And since his resumption of physiotherapy with PD of YCH on 24 June 2016, his performances in the SLR tests on the right leg improved drastically (see §199 above). One would expect such an encouraging trend to continue with physiotherapy treatments but that was not the case. The SKC consultation summary created on 21 September 2016 showed that Mr Chung’s condition took a dive to 45° on his right leg. That was also the day when Mr Chung’s second course of physiotherapy ended. I shall repeat the query that I have at the end of §198 above.

202.There remains the question of whether the mild degree of muscle atrophy at Mr Chung’s right thigh was caused by the Accident. For starter, the AMA Guide clearly provided that atrophy, for reasons of reproducibility, the difference in circumference should be 2 cm or greater in the thigh, or 1 cm or greater in the leg (see §§141 and 142 above). In our case, at the time of the joint examination by Dr Wong and Dr Lam, Mr Chung’s right thigh was 1 cm smaller than the left thigh, and there was no difference in the girth of the calves. Hence, in strict compliance with the AMA Guide, the difference found on Mr Chung’s thighs was not clinically significant.

203.I must add it is also peculiar that there was no muscle atrophy found on the calves, when it was recorded that the loss of sensation was more serious in the region below the knee, and the diffuse numbness was over the whole lower right limb. Moreover, in the JOR, Mr Chung complained of intermittent radiating pain to the right lower limb, along lateral thigh to sole, with weakness of his right leg. The lack of muscle wasting on the calves cast serious doubt on the genuineness of his complaints.

204.At the hearing, Dr Wong expended great efforts in distinguishing the AMA Guide from the application to Asians (see §142 above). I am not convinced. Dr Wong has not adduced any medical journal to support his view on this. In addition, his view is so broad-brush that one would wonder whether it is not only restricted to the topic of atrophy, but to the AMA Guide in its entirety. It further leads to speculation on whether the AMA Guide should only be used for Caucasians, and to the exclusion not only for the Asians, but also to people of other colours. If that was true, I am amazed that the AMA Guide is still so widely used by the experts in Hong Kong, and even adopted by Dr Wong when grading Mr Chung’s impairment of whole person. Dr Wong had also obviously turned a blind eye to the build of Mr Chung when he made that comment. Mr Chung had the weight of 180 lbs before the Accident and over 200 lbs after the Accident packed into a height of 178 cm. His size is definitely not modest at all in comparison with common Asian people. Dr Wong’s attempt of salvation by calling Mr Chung fat is contrary to what was recorded in the JOR, i.e. Mr Chung was muscular. From my own observation at the hearing, Mr Chung is not fat. At the end of the day, Dr Wong has made no suggestion as to the difference in circumference that should be adopted for Asians. His explanations seem to be tailor-made for Mr Chung.

205.In light of the above discussions, I am not convinced that Mr Chung suffered from radiating pain, loss of sensation and diffuse numbness of his right lower limp after the Accident. There is no medical explanation for these symptoms.

206.I note Mr Szeto’s submissions and Dr Wong’s complaint that one should not rely solely on the MRI images to dismiss the diagnosis of sciatica, but to look at the full clinical picture. As one can see from the above, I did, and the picture I see does not tilt the balance to Mr Chung’s favour. I shall add that my analysis above stemmed also from the accepted medical definitions and established requirements for diagnosis of sciatica, radiculopathy and muscle atrophy.

207.There is still the question of malingering or exaggeration, where Mr Szeto and Mr Ho argued extensively and vigorously in their submissions. With no disrespect to both counsel, I think further ruling on this will bring no change to my findings above. Suffice it to say Mr Chung’s complaints are annihilated by the medical and factual evidence, or the lack thereof to be exact. If I was to go further on this topic, I lean toward finding there were malingering and exaggeration by Mr Chung. The reasons are set out below: -

(1) I agree with Mr Szeto that it is hard to conceive that Mr Chung would start to malinger or exaggerate so shortly after the Accident. However, it is not impossible.

(2) I disagree with Mr Szeto that Mr Chung has no reason to malinger or exaggerate in view of the good income that he received prior to the Accident, and that he had not claim for any common law damages. On the former, I note he did receive almost the same level of pre-Accident income, albeit at the lower end of the range, from February to September 2015. And in relation to the common law claim, it is inaccurate for Mr Szeto to say that there was none. Mr Chung did commence personal injury claim under HCPI 4/2018 on 2 January 2018. Although it was eventually discontinued, there was incentive to lie or exaggerate, or to continue doing so during the sick leave period of 902 days, with the common law claim in view.

(3) I also disagree with Mr Szeto’s submissions that Mr Chung’s speedy resumption of work after the left shoulder injury in 2012 could shed light on how eager he was to work as a fitness trainer, so much so that he would not malinger. Mr Szeto described this episode as “work injury” in his submissions. I have doubt whether it could be regarded as such when Mr Chung stated in his witness statement that the injury came when he was exercising. If the left shoulder injury was not sustained during employment, then there was every reason for him to return to work as soon as possible; there was no compensation coming from the employer.

(4) The Waddell tests conducted by Ms Lee and Dr Chun in 2015 came back with polarised results. If one was to adopt Dr Wong’s view, i.e. the Waddell tests conducted by Dr Chun was premature in September 2015, and should not be conducted on a patient with psychiatric illness (although no medical journal was cited by Dr Wong), the same should be applicable to the test conducted by Ms Lee in May 2015.

(5) The topic of malingering and exaggeration evidently was never a focus of Dr Wong and Dr Lam notwithstanding the simulation tests that they had conducted during the joint examination, hence the weight to be given on the same is questionable. There is no clarification from both experts, especially from Dr Wong, as to whether the simulation tests they had conducted were inappropriate due to Mr Chung’s psychiatric illness.

(6) The lack of persistent complaint of radiating pain and intermittent limping gait was used by Mr Szeto in his submissions to exemplify how Mr Chung was not malingering or exaggerating. However, as illustrated in the above, this is really a double-edged sword.

(7) Mr Chung had repeatedly relied on consumption of medications, or the absence of it, to explain away the discrepancies found in his complaints to treating doctors and the experts. This, in my view, is a most convenient excuse; I expected him to highlight certain facts or events which aided in his recollection of the occasions when he took or did not take medication before medical examination, but there was none. I have also not heard any explanation from Mr Chung as to why he did not take medication before meeting Dr Chun, whilst he took them in the morning before attending SKC (see §80 above). And further to my comments at §§194 and 195 above, it is most curious that Mr Chung had not informed the treating doctors and Dr Chun as to whether he had taken painkillers before the examination, so that they could record the same in their consultation summaries and take that into account when prescribing Mr Chung with the treatments and therapies.

(8) Mr Chung’s continuation in receiving treatments from SKC and physiotherapy from PD of YCH amid no improvement of his condition (and with evidence of deterioration) shed a negative light on his suggested determination and need to recover from the alleged discomforts. Nevertheless, he did try acupuncture as alternative treatment. [74]  One might consider Mr Chung had also requested for stronger medication (Tramadol) to ease his persistent pain, but that was not the case. He had been on Tramadol as early as 30 January 2015.[75]

(9) As to Mr Chung having defaulted his physiotherapy treatment with PD of YCH during the first course of the same, I see no reason for the therapist to fabricate it. It is also hard to accept that the course was simply stopped upon mutual agreement or suggestion by the therapist, when the condition had not improved. There could be an intermission of the treatment, but it should not be for an indefinite period. The next appointment date should have been fixed, considering how long one had to wait to re-enter the service.[76]  That being said, Mr Chung did request for resumption of physiotherapy, but the same came only on 26 October 2015. There is no explanation as to why, if he was in persistent radiating pain, numbness and loss of sensation in his right leg, he did not request for the second course of physiotherapy from the public sector shortly after 3 August 2015, when his treatment with CANBI had ended.

(10) I am amazed that Mr Chung was able to stay in shape despite having ceased weight-lifting for more than 2 years by the time joint examination with Dr Wong and Dr Lam was conducted. Both experts described him as having a muscular build in the JOR. As I have stated in §204 above, Mr Chung was not out of shape at the time of the assessment hearing. The weight gain of 20 lbs could be due to the lack of exercises as asserted by Mr Chung; equally, it could be due to muscle added, as Dr Wong agreed that muscle is heavier than fats.

(11) There is no reason for Mr Chung not to receive treatment for his alleged urinary incontinence. It is hard to accept that he could tolerate wetting his underwear whenever there was greater numbness of his right leg (at worst 4 times within 2 days), and had tolerated it for so many years, without seeking medical help on it. Assuming that he still has complaint of leg numbness, he will continue to suffer from urinary incontinence. He might feel embarrassed getting examined by a female doctor at SKC, but there was no certainty that the doctor at the AED would also be a female. Alternatively, there was and is not a shred of evidence to show that he had requested for a male doctor from the AED, or consulted any private practitioner, for example Dr Y. W. Chan, his family doctor.

(12) The most damaging evidence on this topic comes from Dr Wong, when he said that Mr Chung had exaggerated his symptoms to Dr Chun (see §§147-148 above), and the loss of sensation and numbness of right lower limb, which appeared in all consultation summaries, being inexplicable by L5 radiculopathy and L4/5 pathology. Dr Wong also said that the reduced sensation of the whole lower limb was not consistent with dermatomal distribution, and the power of Mr Chung’s right leg was normal. In other words, exaggeration and malingering were present and often.

208.In summary, I find that Mr Chung did not suffer from sciatica. The Accident had not caused muscle atrophy at Mr Chung’s right thigh. It follows Mr Chung’s claim that the disc extrusion was a product of the Accident loses its most attractive support.

209.Dr Wong tried to surmount this with reference to MRI studies cited in Dr Chun’s Report. Although it is stated therein that most people with degenerative conditions experienced no lower back pain, the same study also reported that only 1% of the volunteers who were examined would have asymptomatic degeneration with disc extrusion, which indicated its rarity. In other words, the study showed that degeneration could be without pain; degeneration caused by extrusion disc without low back pain, however, is rare. As such, the fact that there was no reported back pain suffered by Mr Chung prior to the Accident lends support to the disc extrusion being a product of the Accident. Pausing here, I observe that apart from the study of Jensen MC in 1994, the studies conducted by Weishaupt D et al and Boos et al in 1998 and 2000 showed a much higher percentage of volunteers having asymptomatic degeneration with disc extrusion (18% and 13% respectively). The suggestion of rarity, though still true, has lost its lustre.

210.However, in view of the lack of medical and factual evidence to support the existence of sciatica/radiculopathy/ischaemia, I think Mr Chung’s case falls within the 1% to 18%. Despite its rarity, his disc extrusion could be a product of asymptomatic degeneration (without the associating pain), and therefore pre-existing.

211.As to whether the disc extrusion, be it asymptomatic or not, was indeed a product of the Accident, the burden of proof lies squarely on the shoulders of Mr Chung. I find that he has failed to discharge it. Dr Wong and Dr Lam had rendered their respective views on this topic, but none of them had cited any medical journal in support. It is impossible for me to resolve their differences without such aid. There is no information before me as to the amount of force that would be required to cause disc extrusion with a single impact. In addition, after viewing the video recording on how the Accident happened, I am uncertain whether the force created by Mr Chung’s fall (not from a height but from semi-squatting position) would be great enough (even with the weight of the barbell and the Student accelerating the speed and force; Mr Chung held onto the Student’s waist during the fall, which slowed down the process) to create the disc extrusion, especially taking into account that the floor was padded with a plastic mattress, and the fact that the Student did not fall on top of Mr Chung.

212.Finally, Mr Szeto in his submissions appealed to me to use my common sense in making a finding on the above topics, as there are things that cannot be explained by science. He added that one should not simply rely on the MRI images (together with Dr Tsui’s Report and Dr Lee’s Report) to rule against Mr Chung, but to look at the results of the physical examination conducted on him as well, otherwise the whole ordeal of conducting them would be redundant. To these, my reply is that the same argument shall apply if one simply looked at the results of physical examination without regard to the MRI images and findings. This is especially undesirable when the medical definitions set out the requirements that both aspects should be considered.

213.Based on the above discussions, I find that the Accident did not result in broad-based extrusion disc at L4/5 causing mild focal stenosis. I also find that the condition is pre-existing. By deduction, I find Mr Chung to have suffered only contusion to low back or sacral region due to the Accident.

Findings on the 3^rd, and 5^th to 6^th Issues

214.Mr Szeto argued there is evidence showing that Mr Chung had on-and-off back pain in spite of the treatments and therapies. The consultation summaries of SKC revealed that Mr Chung had been prescribed with Tramadol, and the need to take stronger medication fortified his dire condition. However, it could be argued that Mr Chung had feigned his level of pain, and he was prescribed with but never consumed Tramadol, all in a grand scheme to deceive the court or J.V.’s insurer. On this point, I am aware of Mr Ho’s submissions that none of the side effects caused by Tramadol, namely dizziness, drowsiness and nausea,[77] appeared in the consultation summaries of SKC and Mr Chung’s witness statements. On the other hand, I have not lost sight of the record in the consultation summary dated 26 January 2016 that Mr Chung was having epigastric discomfort in recent month, which was later corroborated by the complaint that he made to Dr Chow on 22 February 2017 (that he had epigastric pain for about 1 year, and that he had been taking NSAIDs for pain relief). It is unlikely that Mr Chung had sowed the seed in January 2015 (when he was first prescribed with Tramadol by SKC) with a view of reaping the fruit of it a year later. Moreover, his epigastric discomfort was justified when he was diagnosed with chronic gastritis after esophagogastroduodenoscopy was performed. There is nothing subjective about this diagnosis; there is equally no contrary views from the experts that such diagnosis had nothing to do with the NSAIDs that Mr Chung was prescribed with.

215.Overall, I am of the view that Mr Chung continues to have on-and-off lower back pain. The pain should be mild to moderate, considering the dosage of Tramadol prescribed to him, and since he was able to secure and maintain his employment with T-Rex which entails both office and manual duties; and his added manual duties working at sites since February 2019 lends further support to such view.

216.I am pessimistic that his physical condition would allow him to resume intensive and extensive weight-lifting and weight-bearing works. Conversely, his low back pain could be sufficiently mild to allow him stepping foot inside a gym again, keeping himself in shape with light weight-lifting exercises. I share the experts’ view that his daily activities would be mildly affected by his residual condition.

217.As to the ability to resume his occupation as a trainer, on the orthopaedic side, my view is in the affirmative, in spite of the opinions Ms Yu (of the OTD) and Dr Wong held. With the above findings that there is no sciatica and the disc extrusion being pre-existing and asymptomatic, I see no reason why he could not resume his duty as a trainer, even taking into account the physical demands. I disagree with Mr Chung that, as a trainer, he was duty-bound to have a good build of muscular bulk, hence the need to engage in extensive and intensive weight-lifting exercise. In my view, he has to stay fit and in good shape to be sufficiently convincing to his students, and attractive to potential customers when he was selling the programmes, but not to the point that he has to look like a professional body builder. And with the finding that there is no sciatica, his ability to walk, kneel, crouch, flexion and extension of lower back, and movement of extremities, would be mildly affected, if he would be affected at all. I appreciate that his earnings from class fees could decrease for reason that he might have to reduce the number of students he trained, but he could divert more of his time on promoting training programmes to customers and earned more commission, hence making up some if not most of the shrinkage in class fees.

218.Mr Szeto, in his submissions, placed great reliance on Dr Lam’s concession at the hearing that he would not recommend Mr Chung to resume employment as a fitness trainer. I think Mr Szeto is taking what Dr Lam said out of context. What Dr Lam said was that he would not suggest Mr Chung to continue lifting weight, but to focus more on training his students (see §159 above).

219.On the psychiatric side, Dr Yu and Dr Law came to a different conclusion. It is most interesting to see that they have advocated against their own clients’ case. However, as the mental symptoms on which the psychiatric experts relied on stemmed from the alleged physical ailments of Mr Chung, and that I have found the same to be largely false, I will adopt Dr Law’s opinion and rule that mentally speaking, Mr Chung could resume his pre-Accident job.

220.Overall, I find that Mr Chung could resume his pre-Accident employment as a fitness trainer.

Summary on the 1^st to 3^rd Issues, and 5^th to 6^th Issues

221.To recap, I find that Mr Chung is not suffering from sciatica, radiculopathy and ischaemia. Instead, I agree with Dr Lam’s opinion that Mr Chung suffered only from contusion to low back or sacral region due to the Accident. In light of these findings, I agree with Dr Lam in his assessment of 2% loss of earning capacity.

222.As to the psychiatric side, for the reasons I have provided under §219 above, I will adopt the assessment of the Board and find that Mr Chung’s loss of earning capacity remains at 1%.

Finding on 7^th Issue

223.Based on my finding that Mr Chung suffered only contusion to his low back or sacral region, and the residual back pain was caused by the same, the pre-existing condition found on him plays no part in it. The need to make any apportionment between them is simply not engaged.

224.Before I move on to the next issue, I shall mention in passing that Mr Szeto cited the cases of Wilson v Chatterton and Lee Kin Kai v Ocean Tramping Co Ltd to rebut J.V.’s suggestion that the sole cause of Mr Chung’s orthopaedic complaints was degeneration. He submitted that Mr Chung’s degeneration has no relevance in this matter and there is no need for apportionment. I think my findings above have sufficiently answered these submissions.

225.

Finding on the 4^th Issue

226.It is undisputed that Mr Chung was given sick leave from 11 January 2015 to 31 May 2017(a total of 902 days) by his treating doctors. In his submissions, Mr Szeto suggested that the sick leave should be up to 10 May 2017 only, as Mr Chung had resumed employment in early May 2017. I do not understand why Mr Szeto adopted that day as the end of sick leave period. If the date of resumption of employment should be used as the cut-off point, then the date should fall on 1 May 2017. The contract with T-Rex stated that Mr Chung’s employment commenced on 2 May 2017[78], but the salary slip for May 2017 showed that Mr Chung received the full monthly wages of HK$10,000 (with HK$500 deducted for employee’s MPF contribution).[79]  Apparently, no wages were deducted for 1 May 2017 when Mr Chung was not required to work (either because the employment had not officially started, or because it was the Labour Day holiday). Moreover, what Mr Szeto suggested is actually in contradiction with the view of Dr Wong, whom agreed with the Board assessment of 9 March 2017 as the last day of sick leave (see §119 above).

227.For J.V.’s side, Mr Ho relies on Dr Lam’s opinion and contended that only 6 months of sick leave should be allowed.

228.On the issue of sick leave, Mr Ho referred me to the case of Tse Tsz Chong v Law Sze Man, under which Lam VP (as Lam PJ then was) reiterated that “s 10(2) [of the ECO] set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption”.[80]

229.I find that J.V. has successfully rebutted the presumption under section 10(2) of the ECO. In coming to this conclusion, I must first emphasise that due weight has been given to the decision of the treating doctors who had decided to grant the sick leave to Mr Chung, as they had the advantages of seeing and assessing him at the material time.[81]  And contrary to Mr Ho’s submissions, I do not agree that Mr Chung had engaged in sick leave shopping. Mr Chung was primarily followed-up by SKC, and attended the O&T and PD of YCH, and OTD of PMH, upon referrals. His encounters with CANBI and Dr Tio were due to the arrangements by J.V.’s insurer. The 3 visits to Dr Y.W. Chan (starting from February 2015), in my view, lent no support to such submission, as one could see by that time Mr Chung had already started his treatments with SKC (and was granted sick leave). I accept Mr Chung’s explanation that he was seeking a second opinion from his family doctor.

230.I set out my reasons in holding that the presumption has been rebutted below: -

(1) Pain, being a subjective topic, could be hard for treating doctors to verify.

(2) My finding above that there was no sciatica, which was the primary problem that the treating doctors and therapists were tasked to cure.

(3) My finding that Mr Chung had defaulted in his first course of physiotherapy with PD of YCH on 1 June 2015.

(4) Notwithstanding (3) above, Mr Chung received physiotherapy from CANBI after 8 May and up to 3 August 2015, and treatments from Dr Tio from 29 April to 23 June 2015.

(5) Mr Chung did not find the need to request for physiotherapy between 3 August 2015 to 26 October 2015.

(6) Mr Chung had attained 30% improvement by the end of the physiotherapy treatments from CANBI. However, there was only 10% improvement after the second course of physiotherapy with PD of YCH, and 30% improvement upon completion of all treatments with SKC. These results illustrated that further treatments and therapies, and together with them the sick leave that were granted, were redundant beyond August 2015. They are also consistent with Ms Lee and Dr Tio’s opinion that Mr Chung should have reached maximal medial improvement in or about August 2015.

(7) Although Mr Chung might still require medications for his mild back pain due to contusion after August 2015, sick leave would not be required.

231.In the circumstances, I will allow sick leave up to 3 August 2015, a total of 205 days. That is equivalent to 6.74 months (205/365 x 12 months).

Section 18 appeal

232.Based on my findings above, I allow the section 18 appeal by J.V. on the loss of earning capacity from 5% to 3% (2% for contusion + 1% for psychiatric illness) and on sick leave.

Section 9 Compensation

233.Mr Szeto submits that the Hong Kong Paper Mills formula should be adopted for this head of claim. As I have found that Mr Chung could resume his pre-Accident job as a fitness trainer, I disagree with the suggested approach.

234.Mr Chung was 45 years old at the time of the Accident. Counsel agreed on the multiplier of 72[82] and the amount of HK$23,580[83] to be adopted for the calculation under this head. The compensation under section 9 of the ECO is therefore assessed at HK$50,932.80 (HK$23,580 x 72 x 3%).

Section 10 Compensation

235.Both parties agreed to adopt HK$82,092.42 for the calculation under this head. The amount to be awarded under section 10 of the ECO is therefore HK$442,642.33 (HK$82,092.42 x 80% x 6.74 months).

Section 10A Compensation

236.For the compensation under this head, Mr Ho maintained the same stance that Mr Chung should only be awarded with medical expenses incurred in the first 6 months after the Accident, in the sum of HK$2,970. Mr Szeto, on the other hand, suggested that a sum of HK$11,435 should be awarded, HK$2,580 short of the full sum claimed.[84]

237.I will grant the medial expenses up to 3 February 2016 to allow for Mr Chung’s need for medications to ease his residual pain for another 6 months after 3 August 2015. Taking into account the maximum amount of medical expenses per day which may be claimed pursuant to the Third Schedule of the ECO in effect as at the date of the Accident, i.e. HK$200 per day, the compensation under this head is assessed at HK$5,355.

Total amount of compensation payable

238.Based on the above, the total amount of compensation is calculated as follows: -

(1)	Section 9	HK$50,932.80
(2)	Section 10	HK$442,642.33
(3)	Section 10A	HK$5,355.00
		HK$498,930.13

239.As aforesaid, Mr Chung had received a total sum of HK$513,657.59 as advanced payment. The same fully set-off the said HK$498,930.13.

240.Pausing here, I note the interesting approach adopted by Mr Ho in his closing submissions when setting-off the assessed compensation with the advanced payment. What he did was to set-off the advanced payment only with the compensation to be awarded under section 10 (the same amount I have come up with in §233 above), disregarding that there is a surplus of HK$70,851.27 after doing so. I cannot see the rationale behind this; I refuse to follow it.

241.As J.V. is successful in resisting Mr Chung’s claim, there shall be costs order nisi that Mr Chung shall bear the costs of J.V., including all costs previously reserved (if any), with certificate for counsel, to be taxed if not agreed. Mr Chung’s own costs shall be taxed in accordance with the Legal Aid Regulations. Unless any party applies to vary the costs order nisi within 14 days from the date of this assessment, the same shall become absolute.

242.Finally, I thank Mr Szeto and Mr Ho for their assistance.

Mr Patrick Szeto, instructed by Or & Partners, assigned by the Director of Legal Aid, for the applicant

Mr Leon Ho, instructed by Au & Associates, for the respondent