Wong Wai Ying v. Tung Wah Group of Hospitals

DCEC000867/2000

DCEC867 & 868 of 2000
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 867 OF 2000

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EMPLOYEES' COMPENSATION CASE NO. 868 OF 2000

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(Consolidated pursuant to the Order of His Honour Judge Carlson
dated 7th December 2000)

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Coram: Deputy Judge Tong in Court

Date of Hearing: 5 to 8 August 2002, 12 to 15 and 19 to 21 November 2002, 2 December 2002

Date of Handing Down Judgment: 23 June 2003

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J U D G M E N T

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Background

1.From 1st June, 1998, the Applicant WONG Wai-ying was employed by the Respondent Tung Wah Group of Hospitals to work as a ward attendant in the Chin Ngai Hostel-a hostel for the mentally disabled persons located at Jockey Club Rehabilitation Complex 4, Welfare Road, Wong Chuk Hang, Hong Kong. The Applicant alleged that she had sustained injuries on two occasions, i.e. on 10th October, 1998 and 4th August, 1999 while she was rendering assistance to the inmates of the hostels. It was the Applicant's case that she was given sick leave after the first accident until 1st August, 1999. She resumed work on 2nd August, 1999 but sustained injuries in the second accident 2 days later. Since then, she had been on sick leave and had never resumed work. She now claims for employee's compensation under Section 9, 10 and 10A, 36B and 36I of the Employee Compensation Ordinance. While admitting that the Applicant was an employee of them, the Respondent disputed that the defendant was ever injured in those accidents or if she was so injured, her injuries should had been recovered long ago. Although the Respondent did not allege malingering in its pleadings, malingering on the part of the Applicant was suggested in the Respondent's case.

2.Medical Assessment Boards were convened to assess the compensation involved in the two accidents. The outcome of the assessments after review dated 3rd October, 2001 was that for the first accident, sick leaves awarded were from 11th October, 1998 to 1st August, 1999 and one day on 9th August, 1999 and the permanent loss of earning capacity was assessed as 2.5%. For the second accident, the reviewed result of the board given on 11th September, 2002 was that sick leaves should be from 5th August, 1999 to 7th August, 1999; from 13th August, 1999 to 6th December, 2001 and from 22nd January, 2002 to 8th April, 2002. The permanent loss of earning capacity at the same time was assessed to be 15%. Both the Applicant and the Respondent appealed against such decisions. As such, I am tasked to make my own assessment on whether or not and if yes how much compensation is awardable in respect of either or both accidents (CHAN Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115.)

3.In my view, the evidence in this case can be conveniently sorted into 3 groups. They are:

(1) Factual evidence on how the Applicant had sustained her injuries and the physical discomforts experienced by her from then onwards.

(2) Factual evidence from her treating doctor i.e. what the medical condition that the Applicant was in at the time of consultation and what the doctor had told the Applicant about her condition at the time. and

(3) Evidence from those experts who had accessed the Applicant's conditions for the purpose of the present proceedings.

Evidence in the last category can be further sub-divided into those evidence from the orthopaedic experts and those from the psychiatrists and clinical psychologists. In fact, only one treating doctor i.e. Dr. HUI Wai-kwong was called to give evidence. Evidence by the other treating doctors so far as their diagnoses and prescriptions over the Applicant's problem were concerned were admitted by way of clinical records as well as interpretation of the same by the experts called by the parties.

Evidence from the Orthopaedic experts

4.The first witness for the Applicant was Dr. CHAN Kow Tak (AW1) --- the orthopaedic expert for the Applicant. His report could be seen from pages 1 to 5 of section C in the bundle of documents. AW1 had examined the Applicant on 4th April, 2002 and had run a grip strength test and a pinch strength test on both hands of the Applicant. As a result of his examination and information gathered from the Applicant as well as from other reports, he had made 14 comments at pages 4 and 5 in his report. In summary, his diagnosis was that the Applicant was suffering from tendonitis of the left wrist and right hand numbness respectively as a result of the two accidents at work. He opined that the neck and back pain can only be remotely related to the two accidents and could be psychosomatic in nature. His assessment suggested that the left wrist tendonitis caused a 4 % Whole Person Impairment to the Applicant. On the other hand, the right hand numbness scored a 6% impairment on the same scale. The combined score for the total Whole Person Impairment is 10%. The treatments prescribed by the AW1 for the left wrist tendonitis was surgical release of the constrictive tendon sheath under local anaesthetic; intensive physical and occupational therapy for the right hand numbness and psychiatric therapy or treatment in the pain clinic for the neck and back pain. According to AW1, a total sick leave of 9 to 12 months could be awarded to the Applicant for the injuries she suffered in the two accidents.

5.Under cross-examination, AW1 agreed with Mr. Sham for the Respondent's suggestion in that he could not account for the fact that why the Applicant was suffering from so much pains and why that such pains last for such a long time. He found that there was no damage to the nerve system of the Applicant. The readings from the three grip strength tests on the right hand was 6 Kg/4 Kg/ 6 Kg. AW1 agreed that the deviation suggested that the test result was not reliable as he could not find a reason to account for the same.

6.After the Applicant had given evidence, AW1 was recalled and was shown the surveillance videotape (exhibit D1) showing how the Applicant had walked and behaved in shops and on the road. AW1 said the content of the tape did not change his opinions on the Applicant in any way but agreed that the only unusual feature shown in it was that the Applicant had at time walked with a mild limping gait.

7.The Orthopaedics specialist giving evidence for the Respondent was the second witness in the Respondent's case (RW2). He examined the Applicant on 17th May, 2001 and his report was exhibited from pages 100 to 114 in section c of the bundle of documents. In preparing for this report, RW2 had also studied the past medical records of the Applicant's case. On 17th May, 2001, the physical examinations he carried out on the Applicant included the range of movements on various parts of the body of her. He found no sight of muscle wastage in those areas which the Applicant alleged that she had experienced pain. RW2 said this was unusual for it would only be natural for a person to avoid moving his own painful areas and this would usually cause muscle wastage on those parts of the body. RW2 He had also done a two-points discriminative sensitivity test on both hands of the Applicant. Like AW1, RW2 could not find any objective medical evidence or cause which could account for the various pains and numbness suffered by the Applicant. Nor could he identify any reason for serious impairment in the movement of the Applicant's neck and the restricted movement of her back. In the end, RW2 concluded that the injuries, if there were any, suffered by the Applicant at work in the two incidents should have already fully recovered. In his opinion, the Applicant's claims and complaints were simply exaggerated and without any physical basis. Therefore, his assessment was that the Applicant had suffered no permanent disability at all and warranted no further treatment of any sort.

8.RW2 further confirmed his assessment after he had been shown the surveillance videotape (exhibit D1). RW2 pointed out that the restricted neck and back movement on the part of the Applicant manifested in the physical examination on 17thMay, 2001 had completely disappeared in the videotape. RW2's view was that this evidence was suggestive of mal-lingering on the part of the Applicant.

Evidence from Factual witnesses

9.The Applicant herself gave evidence as the second witness in her case (AW2). She had adopted her 3 statements given in pages 1 to 31 in section B of the bundle of documents as her evidence.

10.On her account, the first accident took place on 10th October, 1998 when the Applicant was performing her night shift duty in the hostel as a ward attendant. A mentally retarded inmate went to the toilet accompanied by her. When the inmate tried to take off her own pants, she lent backward and was about to lose her balance. The Applicant, then standing right in front of the inmate, reached out her left hand to try to help. The inmate grabbed hold of the Applicant's left hand at the position between her thumb and the wrist. At that position, the inmate gave the Applicant a pull made one step and stood still. The inmate then finished her use of the toilet and returned to her ward. The Applicant returned to her desk and tried to write down what had happen. She then felt a pain at the triangular shape location between the index finger and the thumb at the back of her left hand. After she had finished performing her shift at 7:45 am, she returned home and went to bed. She woke up in the middle of her sleep and felt a burning pain over her left hand and left forearm. She then went to consult a doctor at the Accident and Emergency Department at Kwong Wah Hospital. In the months that followed, she had received treatment from the Orthopaedic Unit of Kwong Wah Hospital, the Yung Fung Shee Memorial Centre for physiotherapy, the SPACE center for acupuncture and Dr. Harry Fang of St. Paul Hospital. According to the Applicant, the doctors at Kwong Wah Hospital did not treat her problem well. First, the Orthopaedic Unit gave her an injection on the left wrist and the treatment made the whole of her left palm become swollen. Before the injection, only half of her palm on the side of the thumb and the index finger was swollen. Then, by April, 1999, the doctor at Kwong Wah suggested her to under go an operation on her left wrist to remove the pus therein. The doctor also said that if she refused the operation, she should stop taking sick leave and go back to work. The Applicant said that as the doctor could not reassure her that the operation would cure her problem, she went to consult Dr. Harry Fang to get a second opinion. Dr. Fang's opinion was that the operation was not necessary and treated her problem with medication instead. He also gave her some cotton balls to exercise her left hand and asked her to do some swimming. The Applicant find she got improvement. She then resumed work on 2nd August, 1999 on a trial basis.

11.The second accident took place on 4th August, 1999 when the Applicant was together with her supervisor Ms. Sharon Lee helping an inmate to take a bath. After the bath, the defendant and Ms. Lee was helping that inmate to dry her body. Ms. Lee was standing behind the back of the inmate while the Applicant was standing in front of her. When the Applicant was trying to dry the inmate's lower part, the inmate fell backwards towards Ms. Lee. The Applicant reached out her right hand and caught hold of the inmate's hand and the inmate fell on Ms. Lee. The Applicant said the grabbing of hands slow down the fall. She later found that the jeans she was wearing was torn horizontally by 4 inches at the right buttock. The Applicant later felt a numbness over the little, ring and middle fingers on her right hand and the area beneath those fingers on the palm. She had stopped working again on 13th August, 1999. She never returned to work since that day. Since that day, she had been receiving different sort of treatments by different doctors and clinics and she was still receiving treatment when the trial was held. The Respondent had already stopped paying her sick leave allowance and she had been receiving comprehensive social assistance from the Social Welfare Department up to this moment.

12.The Applicant said she was referred to Yung Fung Shee Memorial Clinic for a further course of physiotherapy sometime in September, 1999. The physiotherapist at first ran some examination on a bone at her back and that caused her great pain. On the second occasion when she attended the clinic for physiotherapy again, she was later admitted to Queen Elizabeth Hospital because of the great pain she experienced. She then had all sorts of pains including the pain from her neck to her armpit when she turned her head to the left. When she was sitting, she had pain on her right buttock so she could not put much weight there. When she was walking, her left sole felt a piercing pain at the area in front of the arch when it touched the ground. However, before she received treatment from one Dr. AU-YEUNG, both legs got the same sort of pain when she was walking. She had pain over her left hand, left forearm and left armpit. When clenched her right hand into a fist, she felt a burning pain. The Applicant said because of all these pains, she lost her appetite and could not sleep well. Her daily activities were restricted because of the pains she experienced when she moved her body.

13.Under cross-examination, the Applicant was asked about the pains on her left hand which allegedly had revived after the second accident. On the other hand, it was pointed out to her that she had suffered no injuries on her left hand. She then said on 12th August, 1999, an inmate of the hostel snatched a soft splint off her left wrist while she was at work. The pain on the left hand then came back 2 days later. The Applicant admitted that this incident was not mentioned in any of her previous statements.

14.As for the Respondent, it had called two factual witnesses. The first one RW1 was Ms. Wendy WONG. She worked as a Social Welfare Assistant in the hostel in question. Her evidence was mainly on the staff appraisal mechanism in force in the hostel. The mechanism included a measure that newly appointed staff like the Applicant would be placed on probation for one year and that there were cases in which a worker could not complete his or her probation period.

15.Another factual witness for the Respondent was Dr. LAM Kwong-chi (RW3). He was the doctor whom the Applicant consulted in Kwong Wah Hospital on the two occasions dated 22nd April and 20th May, 1999 respectively. He referred to his hand written notes which he made during those two consultations (see page 39 of part B of the Respondent's bundle of documents) and said that he had just put down "Mild Trigger Thumb" and that he had made no suggestion to the Applicant for surgical release of tendon in both consultations for he did not regard such measure to be required for such mild symptom. He also noticed that a suggestion for operation was made in the entry dated 5th November, 1998 but the Applicant said she wished to consult her parent first. The doctor also added that he prescribed only 7 days sick leave on 20th May 1999 because he was of the view that the Applicant should be fit to resume work after 7 days.

Evidence from the Psychiatrist and the Clinical Psychologist

16.Dr. CHEN Char-nie, a psychiatrist was the third witness (AW3) testified for the Applicant. His report was included in pages 6 to 24 of section C of the bundle of documents. He was tasked to assess the Applicant for the purpose of preparing a psychiatrist report to be submitted in the present proceeding on behalf of her. He had seen the Applicant on 3rd and 15th August, 2002 for such purpose. He was provided with the Applicant's previous medical records and assessment done so far and had interviewed the Applicant to gather information about her past developmental history. The report mentioned that he had done a 13-item Beck Depression Inventory test on the Applicant with a score of 14 out of a total of 39 indicating mild level of depression. In assessing the Applicant's irritability, depression and anxiety, the Applicant's scores were 5 for depression (within the borderline range), 5 for anxiety (below borderline range) 0 for inward irritability (way below the borderline range, and 4 for outward irritability (below the borderline range). Based on the information he so gathered, AW3 came to the conclusion that the Applicant was suffering from a Pain Disorder associated with both psychological factors and a general Medical condition and that the pain disorder was precipitated by the two incidents of work injury and perpetuated by a less sympathetic attitude of care providers and the result of repressed anger. AW3 was also of the view that the Pain Disorder could also be predisposed by earlier difficult relationship at home (meaning that her father was a gambler) or disappointment in heterosexual relationship (meaning that her previous intimate boy friend had betrayed her). The diagnostic criteria adopted by AW3 came from the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV)(1994) (Washington, D.C. American Psychiatric Association). The 5 criteria which AW3 thought the Applicant's case had met could be seen at page 16 of the report (i.e. page 21 of the bundle part c). The 4th criterion there was that "(D) the symptom or deficit is not intentionally produced or feigned (as in Factitious Disorder or Malingering)."

17.AW3 said that he did not find the inconsistent versions presented by the Applicant on different prior occasions to be indicative to her being a mal-lingerer. Rather, AW3 found that it was consistent with patients suffering from chronic pain disorder because such patients used to exaggerate the pain they experienced. After having recounted their source of pain for a number of time, they might forgot what their previous versions were and thus creating inconsistency. AW3 also did not find the absence of muscle wastage on the part of the Applicant to be abnormal even the latter complained that movement of her body generated a great deal of pain. AW3 said that it may be that the Applicant was taking a regular heavy dose of pain killers and that she had been trying to exercise herself. As for refusal by the Applicant to undertake operation to relieve her pain, AW3 said it would be common amongst Chinese to seek a second opinion before taking such option. If the second opinion said there were alternatives, most patients would not go for an operation. Finally, AW3 said that a mal-lingerer would rarely report making progress in his recovery. Here, the Applicant was making progress albeit it took a long time.

18.Under cross-examination, AW3 admitted that he had done a test to ascertain the Applicant's pain threshold and found her score to be 4.6 out of a 10-point scale. He regarded such reading to be not high for someone who had experienced pain for so long. He explained that he had failed to include this finding in his report because the reading was low and he "did not take it seriously". However, upon reflection, he admitted that it should be material to one's diagnosis and hence he should have included this finding in the first place. As to why he did not do any physical examination on the Applicant, AW3 explained that it was because lots of physical examinations had already been done on the Applicant previously including those done by Orthopaedic experts. Furthermore, apart from a little limping as the Applicant walked, he did not find any thing special in the Applicant's movement. He did not find it necessary to do any such examinations in the circumstances. AW3 also admitted under cross-examination in that he was only speculating when he tried to explain why the Applicant got no muscle wastage despite the fact that she alleged to have experienced great pain when moving some part of her body.

19.Dr. K. Singer was the psychiatrist testifying on behalf of the Respondent (RW4). Apart from receiving all the materials in the trial bundle of this case, he was also provided with the transcripts of the trial hearing from 5th to 8th August, 2002 and the surveillance tape showing the Applicant on 21st and 25th September, 2001. In order to carry out his assessment over the Applicant, he had interviewed and examined her on 3rd October, 2002 for a duration of 3 hours and 15 minutes. The report prepared by RW4 could be seen from pages 118 to 173 in section C of the trial bundle. The conclusion reached by RW4 was that the Applicant had little or no pain as a result of the injuries she suffered in the 2 accidents, that she was faking her pain symptoms and that she was a malingerer seeking to make a false compensation claim against the Respondent.

20.RW4 based his findings on a number of observations he made from the information provided to him and on the examination he conducted over the Applicant. Firstly, RW4 found the pains reportedly suffered by the Applicant in the 2 accidents were different in material aspects in the various versions she had given before. They were also different from the contents of the attendance notes made by treating doctors who made first handed examination on her injuries. RW4 found that "the complaints as recorded when she was first seen after each accident, escalated with successive accounts in the staff Injury on Duty Reports and in the letter to the Labour Department. The longer the time interval from the event the greater has been the exaggeration."(see page 40 of the report). Secondly, while the Applicant alleged that her soles and right knee were tender in that a very small amount of pressure exerted thereon would cause great pain. Yet, when RW4 distracted her attention on those parts and exert pressure thereon, there was absence of any sign of tenderness on those parts of her body. Thirdly, when RW4 observed her entering his clinic, there was gross tremor (hand shaking) in her right hand. This subsided after half a minute but recurred in the form of fine tremor when she was physically examined. When tested for power in upper limbs, it could be observed that she made little effort and contracts antagonistic muscles especially on the right side. RW4's view was all these were indicative to the Applicant's being unco-operative with the examiner and producing faked results voluntarily. Finally, RW4 had contrasted her evidence in court with her observed performance in the videotape. In court, she said that before she attended the clinic of Dr. AU-YEUNG, she had to walk very slowly and carefully, that she could not walk like a normal person, that the pain was very serious and there were no occasions when she did not have the pain. In the videotape, it could be seen that apart from some brief moments when she walked with a mild limping gait, she could walk normally in terms of speed and gait. She could also reached out for objects in a shop placed at a level over her head and could hold a telephone without any tremble signs.

21.RW4 had adopted the same diagnostic criteria used by AW3; i.e. the DSM-IV standards. However, RW4 was of the view that the Applicant's case failed to meet criterion (B) to (E) out the 5 criteria stipulated. In particular, RW4 pointed out that the two accidents had themselves caused relatively minor injuries and bore no significant psychological features which were grave enough to trigger off such serious and prolonged psychosomatic disorder like those represented a car crash, sudden lost of beloved family members or marital discord. For the reasons given above, RW4 disagreed with the assessment made by AW3 in that the Applicant was suffering from chronic pain disorder. As for the mild limping gait that appeared in the videotape, RW4 said it was possible that it was caused by the spinal condition shown by the MRI scan.

22.Under cross-examination, RW4 did not regard the seeking of an alternative opinion and improvement shown on the part of the Applicant could he used as evidence to negative his diagnosis of malingering. He regarded those acts to be the Applicant's attempt of prolonging her sick leave to the maximum possible extent while evading the pressures of making her work again exerted by treating doctors in the public sector.

23.Dr. Michael TSANG hing-pui (AW4) was the clinical psychologist giving evidence for the Applicant. He met the Applicant on two occasions. He carried out his assessment on the Applicant by holding a clinical interview with her on the first occasion and by administering a Chinese Minnesota Multiphasic Personality Inventory (CMMPI) test on her on the second occasion. His objective was to ascertain whether or not the Applicant was experiencing any psychological problem which could be attributed to the two injuries she allegedly had sustained at work. More importantly, it was AW4's task to ascertain if the Applicant was a mal-lingerer or that she was suffering from chronic pain symptoms. The report prepared by AW4 could be seen from pages 25 to 37 in section C of the trial bundle.

24.In the clinical interview, AW4 observed the Applicant's behaviour as well as gathered information from her on her psycho-social developmental history. On the other hand the CMMPI was used to assess the clinical psychological profile of the Applicant. The test was originated in USA and adapted to be used in the Chinese population consisted of a large number of questions in a set questionnaire. The subject tested would be required to follow the instructions to complete the questionnaire by marking on an answer sheet. Based on statistics on the responses of a large population whose psychological profiles and groupings readily identified, it became possible for a trained administrator of the CMMPI to portrait the psychological profile of a subject by interpreting the answers given by that subject. To increase the reliability of such test, there were build-in mechanisms in the questions so that various scales with quantified scores could be obtained from a complete questionnaire. These various scales could be interpreted either by themselves or together with others to determine not only the psychological profiles but also the validity of the test results.

25.The scores obtained by the Applicant on different scales could be seen on page 11 of the report (i.e. on page 35 in section C of the bundle). Although it could be seen that the Applicant got a elevated score on the L-Scale (sometimes referred to as the lie-scale), AW4 said that it did not mean that she was lying when she was completing the questionnaire. Because her combined scale scores of the F-scale and K-scale was -7, it showed that she was faking good rather than faking bad. As faking good does not further the Applicant's case in the present claim, AW4 was of the view that she was simply being defensive in admitting her psychological problem. Hence the interpretation put forward by AW4 at pages 11 and 12 of his report was:

"....Given that Madam Wong appears quite defensive in admitting problems, the results should be interpreted with caution. While the test results cannot be used to verify whether she has physical diseases or not, her Clinical profile suggests that she might have been converting her psychological distress into physical complaints. However, this does not mean that she has been faking or feigning illnesses. In deed, it suggests that she may be experiencing some psychological distress which she does not want to admit and is experiencing them via somatic preoccupations." (underlines added)

26.The clinical psychologist who gave evidence for the Respondent was Professor LI Wing-ho (RW5). He had interviewed the Applicant and did assessments on her on 22nd and 25thOctober, 2002. His report was exhibited from pages 179 to 206 of section C of the trial bundle.

27.The clinical assessment was done in a similar way as what AW4 did. That included interviewing the Applicant to gather the psycho-social developmental history of the Applicant as well as observing her verbal and non-verbal behaviour at the same time. Those observations were listed from paragraph 8 to paragraph 15:

"8. Madam Wong was punctual and came on her own on both our meetings. She was neat and tidily dressed. She was well looking, alert, and cooperative. On walking to meet me, she walked with an obvious limp and awkwardness in her movements.

9. Madam Wong's mood was calm and collected throughout. Her emotions were congruent except for smiling periodically when talked about her previous unhappy experiences. She presented with a limited range of emotional expressions. She tended to deny and downplay feelings of any kind. This was particularly obvious in relation to negative feelings of resentment, anger, unhappiness, and frustration. When I tried to enquire into how she felt about various issues and life difficulties, she also denied having been affected in any adverse way. She appeared agitated when she told me about being mistrusted by her supervisor and being ignored by her attending doctors.

10. Madam Wong did not present with any signs of anxiety, depressive mood or distress. However, she periodically moved about on her chair, and massaged her right thigh by applying rather strong pressure with her left hand and fingers. She also stood up from time to time to stretch her body. However, throughout, I did not notice in Madam Wong any obvious signs of pains, discomfort agony, or emotional distress.

11. I noted that in terms of her posture, Madam Wong presented with a highly variable range of movements and sitting positions. She habitually rested her left hand and elbow on her lap with her fingers clasped into a fist. She seemed to have general weakness of her left hand with accompanying disinclination for any movements. However, in stark contradiction to her usual posture, I noticed also that (she) was able to periodically rely on the support of her left hand alone to arch her way out of the chair and in changing her body posture. She was also able to exert rather strong pressure on her left hand and fingers to massage her right thigh.

12. Madam Wong told me she had intense pains, numbness and difficulties in moving her back and abdomen, especially in changing positions while sleeping. However, again obvious contrast to what she told me, as she tried to demonstrate how difficult it was for her to move, she was apparently able to arch her body forwards and lifted her buttock out of the chair with great ease and no signs of distress or awkwardness whatsoever.

13. Periodically, despite her complaints of pains and seeming restricted movements of her arms and shoulders, I noticed that she was able to reach freely behind her back for her handbag with both or either hand without even having to turn her shoulders. I noticed that she had free and easy movements of both hands and fingers when she flipped through various documents she brought along to show me. It was also worthy of note that when Madam Wong was telling me about her pains, numbness, and aches on multiple parts of the body, she seemed at times rather unsure of the location of her pains and had to feel her body parts to confirm the exact pain location.

14. Madam Wong cooperated with my assessments on both occasions. She understood me and my questions well. She was fully able to express her thoughts and perceptions. She had a good recall of past events and her personal history. Her recent and short-term memory were unimpaired. She had a very detail and lucid recall of different aspects of her injury, her long course of treatments, and her unhappy interactions with doctor and therapists. Her accounts of herself and her personal history were well organized although she tended to be long-winded. She was at times circumstantial in her narration and I had to request her to focus back on the issue being discussed. She was generally forthcoming.

15 Madam Wong's cognitive functioning was not impaired. She maintained a good span and level of concentration throughout. She did not present with psychotic symptoms of any kind.

28.As for the use of CMMPI, RW5 disagreed in that the test could be used as a diagnostic tool. Rather, maintained RW5 that it could only be used as an investigating tool to identify direction into which clinical inquiries should aimed at. Here, the test result obtained by AW4 showed that the Applicant had a very high lie scale score. It simply meant that she was less than totally honest when she was performing the test. The result so obtained would then be inaccurate. RW5 also disagreed with AW4 in that the result showed faking good meant that the Applicant was not malingering but rather reflect her denial and defensive attitude towards her psychological problem. In RW5's view, it simply showed the Applicant's preoccupation of placing her claim on the physical ground and that she tried to present herself to be a righteous person free from any mental abnormality.

My assessment on the orthopaedics experts' evidence

29.As for all experts produced by the parties in their cases, I have no hesitation to accept them as creditable witnesses. The real question for assessing their evidence is only whether their approaches used in assessing the applicant and basis on which they drew their conclusions had any problem which may affect the accuracy of their assessments.

30.Leaving aside the mild limping gait which occurred at times and the abnormality in the Applicant's spine, there were no objective physical evidence which showed that the Applicant is still suffering from any pain on her body. This was apparent from the evidence of all the orthopaedics experts who had examined the Applicant.

31.Hence RW2 Dr. LAM Kwong-chin said at paragraph 13 of his report:

"At this assessment, Miss Wong still had multiple complaints, which were literally all over her body. However, on examination, there were no objective signs to support the claims or presence of any organic disorder. Her complaints were simply exaggerated and without a physical basis."

32.Although AW1 Dr. CHAN Kow-tak concluded that the Applicant was suffering from partial permanent disability as a result of injuries on her left wrist and right hand, he also found it to be unusual for the Applicant's pain to spread so wide and last so long and yet without any physical bases at the same time. Dr. CHAN also agreed under cross-examination in that there was no physical sign showing her right hand injury. As for her left hand injury, Dr. CHAN said it was based on the Applicant's complaint of pain.

33.I have also noted with interest that the Applicant had chosen not to call her former Orthopaedics expert who had prepared a report with the following conclusion (page 25 of section A in the Respondent's bundle):

"She had acute pain at spine from neck down after assessment at YFSMC. The symptoms she described at this examination from September 1999 onwards could not have been caused by the 'injury' she described on 4th August, 1999. They are highly suggestive of expansion and magnification of symptomatology.

The symptoms could not be explained by various investigations including CT scan and MRI and certainly could not be explained by the sprain injury of 4 August, 1999. The physical evaluation by physiotherapist is a standard procedure that should not give harm to a patient.

At this examination, all her 18 items of present complaints were non-speciafic and not explainable on structural basis. They are highly suggestive of symptom expansion and magnification.

There was no objective positive physical abnormality. The pattern of handgrip power strongly suggested submaximal effort most likely due to volitional under-performance. Basing on the objective criteria of the AMA Guides, there is no impairment resulted from the sprain injury of the right hand."

34.It was because of such absence of physical evidence which could account for the non-specific unremitting pains allegedly experienced by the Applicant, both AW1 and Dr. CHUN recommended further psychological investigation into the Applicant's problems. On the orthopaedics experts' evidence it was obvious that the Applicant's reported conditions could not be satisfactorily accounted for. It then become obvious that either the Applicant was a patient suffering from chronic pain symptoms which had a psychological as well as a physical basis or that she was a mal-lingerer manufacturing the reported pains and numbness when there was none. In order to resolve this issue, I have to rely on the evidence of the psychiatrists and the clinical psychologist. Furthermore, I will have to make my own assessment on the evidence of the Applicant to see if she was a reliable and honest witness when she was recounting her symptoms.

Assessment on the evidence from the psychiatrist and clinical psychologist

35.In fact, the possibility of the Applicant suffering from a psychological problem had been on the mind of her treating doctors when they found the defendant's condition did not improve along with the passage of time. The Applicant was then referred to the Yung Fung Shee Psychiatric Clinic for assessment. She had attended the clinic for at least 4 occasions and differential diagnosis of Depressive Disorder and Somatoform Disorder were considered in January, 2000. In the end, the psychiatrist concerned came to the view that there was no clinical evidence to suggest that the Applicant was suffering from any such problem.

36.While the conclusions reached by AW3 and AW4 were that the Applicant was suffering from Chronic Pain disorder because all 5 diagnostic criteria had been met in her case, I found that both witnesses appeared to have accepted the long and wide spreading unremitting pains on the part of the Applicant as a fact without reservation. AW3 had done no physical examination on the Applicant. He found that her pain threshold was not abnormal but all the orthopaedics experts could find no explanation for the pains. He then went on to speculate that the Applicant must have suffered some psychological distress which she denied. The sources of such distress were brought about by her gambling father, her disloyal boy friend, the two accidents at work and the unsympathetic attitude of her care providers. I found such speculation to be too far fetching. She had left her family thus her father a long time ago and she had also left her boy friend at her age of 27. She is now 56 already. She suffered no psychological problem before the two accidents and had taken up various jobs in making her living without problem. The two accidents themselves lack the traumatic features like that of a car crash or which brought about lost of close relatives. In fact, the Applicant could manage to finish off her shift duty after the two accidents. Hence, I agree with Dr. Singer (RW4)'s view that it would be highly unlikely that these two accidents could trigger off the alleged Chronic Pain Disorder with pain of such intensity and lasted for such a lengthy duration.

37.On the other hand, the CMMPI test administered by AW4 on the Applicant show an elevated score on the L scale (lie scale). I agreed with RW5's observation in that this clearly showed that the Applicant was less than totally honest when doing the test. Furthermore, the combined reading of different scales show that she was faking good did not eliminate the possibility that she was malingering and may simply mean that the Applicant was still trying to base her claim on the physical injuries. All in all, I found that the various examinations and observations made on the Applicant by RW4 and RW5 to be more critical and thus more illuminating on resolving the very important issue of whether the Applicant was actually albeit subjectively experiencing those pains she had complained of or whether she was simply a malingerer making false claims for employee compensation.

The Applicant's own evidence

38.I had considered the Applicant's evidence in detail with care. I had done so in the context of other evidence in this case. In the end, I did not find the Applicant to be a creditable witness and I attributed little weight in her evidence. The reasons are as follows:

(1) Inconsistencies amongst the various versions of the Applicant about the pains she had experienced:

Because of the fact that the Applicant had consulted so many doctors and labour agencies to ventilate her problem, she had recounted the two accidents and the various kinds of pains and disabilities she had experienced to others on quite a number of occasions. On the top of this, she had also given her witness statements and her evidence in court. I must say that I find glaring inconsistencies amongst the various versions of pain complained by her. A good summary of these discrepancies could be seen in the report of Dr. Singer (RW4) from pages 151 to 157 in the experts' reports bundle (i.e. section C of the trial bundle). Such discrepancies cannot be explained by lapse of memory for the unremitting pain experienced by the Applicant had lasted so long and was so severe that if really existed, she would never make any mistake about it. Yet, as Dr. Singer had put it at page 157:

"The complaints as recorded when she was first seen after each accident, escalate with successive accounts in the Staff injury on Duty Reports and in the letter to the Labour Department. The longer the time interval from the event the greater has been the exaggeration, and this is typical of persons who exaggerate."

(2) There was evidence showing that the Applicant had been faking her weakness and pains during examinations conducted by the experts

Dr. Singer (at pages 147 & 148) found that when examined for power in the upper limbs, she made little effort and contracted antagonistic musecles, especially on the right side. Such behaviour was not accounted for by weakness or pain and indicates she was not cooperative. Dr. Singer also found that superficial sensation in the upper and lower limbs of the Applicant was diminished. Yet, its distribution was patchy not corresponding to dermatomes. Also the Applicant was tested for sensation in lower limbs, the examiner had one hand on one or other of her knees or soles anteriorly and posteriorly and pressed hard. The Applicant did not complain of pain, did not wince or show pain in facial expression. i.e. when her attention was distracted she did not show evidence of pain in sole and knee regions.

Professor Peter Lee had also made some observations during the interview he had with the Applicant made findings which I had quoted in pages 22 and 23 of his report which render the Applicant's complaint of pain highly dubious.

Dr CHAN Kau-tak (AW1) also found that test result on right hand grip i.e. 6kg/4kg/6kg to be unreliable because of the 50% deviation. AW1 had also found the right ulnar nerve is intact. Hence, Dr. CHAN cannot explain the numbness of the right hand fingers.

(3) The Surveillance Video Tape

According to the Applicant, the pain she developed after the 13th August, 1999 had caused her great difficulties in raising her head or hands for great pains would result if she did so. After her first consultation with the physiotherapist on or about 22nd September, 1999, the pains in both her legs and feet developed and there had been no improvement until she had consulted Dr. Au-Yeung for more than half a month. As she first consulted Dr. Au-Yeung in October, 2001, her pain as outlined above should still be persisting on the two days on which the surveillance video tape (i.e. 21st and 24th September, 2001) was taken. However, the tape clearly showed that the Applicant could move freely and normally apart from a mild limping gait that occurred occasionally. In a shop, she had reached up with her right hand for a product being displayed on a shelf high above her head and there were no facial expression on her part showing that she was in pain. This was a sharp contrast from how she walked into the witness box in court as well as walked into the clinics of some of the experts who had made assessment on her for the purpose of the present trial.

(4) The Third Accident in the Applicant's evidence

While I notice that it had always been the Applicant's case that she had had two accidents at work and the two accidents had caused her respectively left wrist and right hand injuries. However, when the Applicant was being cross-examined in court by Mr. Sham for the Respondent on the reason as to why her left wrist pain suddenly revived after the second accident (which had nothing to do with her left hand), the Applicant came up with an incident in which the splint she wore on her left hand was snatched off by an inmate on 12th August, 1999. This incident, as admitted by the Applicant, was never mentioned in any of her prior statements. I found her explanation in that she simply remembered this upon the probing of the Respondent counsel's questions after more than 4 years time had no ring of truth at all.

(5) Contradictory findings in Physical Examinations

The complaints of pains of the Applicant were so extensive that she alleged that her mobility and social life had been greatly affected. Yet, the common occurrence of muscle wastage in painful areas amongst patients suffering from lengthy unremitting pains was absent in the Applicant's case. Furthermore, even though the Applicant said her appetite was greatly affected by the pains and the pain killing drugs she had been prescribed with, she had taken on 20 more pounds since the accidents had occurred. All these indicators were, in my judgment, inconsistent with a patient (albeit subjectively) suffering from lengthy unremitting pains.

39.I noticed Mr. Burke's submission in that the Applicant was not a malingerer because she was making an effort to cure her problems by seeking out treatments from various doctors including private practitioners. She had also made an effort by going to Mainland China to do scanning investigation on her body at her own expenses. She had also taken various sort of very strong pain killer drugs which upset her stomach in the last 4 years. She had also reported improvements after she had consulted Dr. Harry Fang for her left wrist injuries and Dr Au-Yeung for the pain she suffered from her limbs. All these, suggested Mr. Burke, showed that she was not faking her pains and problems.

40.I disagreed with Mr. Burke's analysis. I noticed in the evidence before me, it showed that the defendant started to seek private treatment when doctors in the public sectors had been cutting short her sick leaves substantially. Those sick leave certificates she produced from the private doctors endorsed sick leaves much longer than those sick leaves she had obtained from the doctors before those private consultations. As doctor Singer (RW4) had suggested, a malingerer may treat the compensation seeking exercise as an investment. In order to support her claim, she would have to gather medical evidence to support her case. Her reported improvements could be interpreted as an attempt on her part to convince others that a non-surgical approach prescribed by her private doctors form the right diagnosis on her problem. This approach had enabled her in extending her sick leave unduly after the first accident. Her reported slight improvements after the second accident may also be an effort on her part in trying to present her case in a more reasonable manner. In my judgment, the Applicant had been selective in following the advice and prescriptions of her private doctors. In other words, she would accept such advice only if it suited her taste. For instance, the Mainland China doctors suggested her to have a surgery --- a similar advice with that of the public sector. She declined to follow the same but stuck on non-surgical treatment despite of the alleged great pains that she had suffered for so long with out effective cure.

Conclusion

41.On the evidence before me, I find that the Applicant has failed to establish on the balance of probability that she was suffering from the pains she alleged to have been suffering. While on the balance of probability, I find that the evidence could support that she was suffering from de Quervain disease on her left wrist and sprain of the right hand as a result of the first and second accident, I also find on the same standard that she had recovered from such diseases no later than 5 months after each of the accident. This period was fixed on the basis of AW1's evidence in that a total of sick leave of 9 to 12 months should be awarded for those injuries. I found on the balance of probability that any discomfort alleged experienced by the Applicant after the first 5 month of the two accidents were either faked symptoms on her part or, like her mild limping shown in the video tape, had nothing to do with the two accidents at all. For these reasons, I make the following orders:

1. Appeals against the two Medical Assessment Board review decisions dated respectively 17th October, 2001 and 30th October, 2002 are allowed and the two review decisions is hereby set aside.

2. There shall be no award under section 9 of the Employees' Compensation Ordinance on the basis there are no permanent incapacity arising from the two accidents.

3. Sick leave compensation for 5 months after each of the two accidents is awarded under section 10 of the Ordinance

4. Section 10A compensation for medical expenses actually incurred or at $175 per day on which treatment was given whichever is the less. Such amount to be calculated only for treatments given with in the 5 months after the 1st and the 2nd accident.

5. There shall be no award under section 36B and 36Z of the Ordinance.

6. As the Respondent has already paid the Applicant $246,203.88 which must be over and above the amount under order 3 and 4, the Respondent shall be under no obligation to pay the Applicant any further amount under those two orders.

7. The Applicant shall bear the cost of the Respondent to be taxed if not agree and the Applicant's own cost to be taxed in accordance with legal aid regulations.

Representation:

Mr. P. Burke of M/S Burke & Co. for the Applicant (DLA).

Mr. Walker Sham instructed by M/S Ip, Kwan & Co. for the Respondent.