Yeung Tin To v. Ann's Travel Service Co Ltd

DCEC 922/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 922 OF 2007

____________

BETWEEN

____________

Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing: 3 November 2009

Date of decision: 30 November 2009

D E C I S I O N

1.Yeung, the Applicant, claims compensation for his injury allegedly sustained at work as a coach driver in August 2005 when he was employed by Ann’s, the Respondent.  Yeung has become wheelchair bound.

2.A joint neurologists’ report has been prepared but Yeung applies for leave to adduce expert evidence from orthopaedist, psychiatrist and urologist.  Ann’s opposes and proposes instead to write to the government hospital for explanation for Yeung’s current condition.

Medical history

3.At the time of the accident, Yeung was 41 years old.  He allegedly sprained his low back in the course of handling luggage for passengers.  He sought bonesetter’s treatment.  Finding the treatment ineffective, he attended the hospital a few days after the accident.

4.According to the medical records, Yeung was admitted to the Department of Neurosurgery of Prince of Wales Hospital (“PWH”).  MRI revealed no obvious abnormality.  He was given a course of physiotherapy.  Due to complaint about severe low back pain and bilateral lower limb weakness since September 2005, he was re-admitted in October 2005.  Repeated MRI showed mild disc herniation at L4/5 with no significant nerve root compression on the right side.  He was discharged with a quadripod and followed up with physiotherapy.

5.In January 2007, Yeung was re-admitted to PWH due to complaint about persistent pain.  The diagnosis was myofascial pain.  Trigger point injection was attempted but abandoned due to complaint about severe pain.  He was then transferred to the Shatin Hospital (“SH”) for rehabilitation.  He has been re-admitted thereafter until June 2008.  The complaint about persistent pain and lower limb weakness remained, despite prolonged and intensive physiotherapy as well as multiple high analgesic dosage.

6.During his rehabilitation in SH, Yeung was referred in May 2007 to the hospital clinical psychologist for psychological intervention.  High level of mixed anxiety and depressive symptoms were found.  It was recorded that parenting, marital and financial issues have significantly affected his mood and he had little or no adequate social resources to cope with the stress caused after the accident.

7.In December 2007, Yeung was referred to the Clinical Psychologist (Pain) Clinic of Alice Ho Miu Ling Nethersole Hsopital for pain management.  It was noted that he had difficulty in accepting the chronicity of his pain.  His mood deteriorated to the point of having suicidal ideas in October 2008.  Clinical psychologist sessions were offered to help him cope with his pain and manage his mood.

8.Yeung was also referred to psychiatry of PWH.  He was said to be unable to accept his disability since 2005 including loss of mobility and urinary incontinence.  The psychiatric diagnosis was depressive episode, severe without psychotic symptoms.  He was put on psychiatric medication.  His psychiatric follow-up continued until now.

9.Upon the recommendation of the occupational therapist and with special comprehensive assistance allowance, the Housing Department has provided Yeung with home modification and other assistive home devices including a wheelchair, a shower commode chair and a manual hoist.  An additional flat and full-time maid have also been provided.

10.As mentioned above, Yeung also complained about urinary incontinence.  He was first seen by the hospital urologist in October 2007 while he was under the care of the neurosurgery ward.  The urologist has since been consulted for the management of Yeung’s incontinence.  It was recorded that the incontinence problem has allegedly happened since July 2006.  But it was also recorded that Yeung had lower urinary tract symptoms after his injury in August 2005.  Yeung was diagnosed to have a hypocontractile bladder with overflow incontinence.  Findings of cystometrogram in November 2007 and cystoscopy in January 2008 were compatible with the diagnosis.  He is now on self-catheterisation.

Form 7

11.The Medical Assessment Board (“MAB”) examined Yeung in December 2006, August and September 2009.  According to Form 7 issued on 16 September 2009, Yeung’s back injury resulted in (1) low back pain; (2) impairment of urinary bladder function; and (3) psychiatric impairment.  Permanent loss of earning capacity was assessed at 46%.  Sick leave certified ran for a period of 3 years from 10 August 2005.

12.Yeung objects to the assessment on the basis that he is wheelchair bound and has lost his entire earning capacity permanently.  Ann’s also objects to the assessment.  By their solicitors’ letter dated 23 September 2009, Ann’s stated that (1) not all the injuries stated in Form 7 were the result of the accident; (2) the period of absence from duty was not long; and (3) the percentage loss of earning capacity was too high.  By another letter on the following day, the solicitors for Ann’s clarified that they are disputing the relevance and causation of the impairment of urinary bladder function and psychiatric impairment.

Neurological expert report

13.Parties have obtained a joint neurological expert report dated 24 February 2009 by Dr Y L Yu and Dr Edmund K W Woo.  The experts agreed that Yeung suffered from soft tissue injury to his low back and that he does not have any neurological deficit due to spinal cord or spinal nerve root lesion.  Hence Yeung has no neurological disability as a result of his back injury.

14.The neurologists agreed that the subsequent progression of Yeung’s condition cannot be explained by the relatively mild injury to his low back in 2005, nor could the same be accounted for by the triggered point injection procedure in 2007.  They found discrepancies between the symptoms demonstrated and the objective signs.  They concluded that the neurological symptoms do not have an organic basis.

15.Dr Yu and Dr Woo assessed Yeung’s permanent impairment due to the soft tissue sprain of the low back to be within 2% and 1% of the whole person respectively.  From the neurological perspective, Yeung was considered to be capable of resuming his pre-accident job.

16.Dr Yu suggested a psychiatric assessment of the relationship between Yueng’s paraparesis and psychiatric illness whereas Dr Woo suspected Yeung of gross exaggeration of symptoms and suggested lack of indication for psychiatric evaluation.

17.The neurologists also commented that the bladder disturbance is likely to be organic in nature.  They were unable to identify the cause but considered it to be unrelated to the accident.

The present application

18.Since April 2009, Yeung’s solicitors have been seeking consent of the solicitors for Ann’s to obtain evidence of orthopaedic, psychiatric and urological experts.

19.By the orders of H H Judge Ng in May 2009, parties were directed, among other things, to state whether orthopaedic, psychiatric and urological expert evidence would required and, if yes, to propose directions.

20.In August 2009, H H Judge Ng adjourned for argument, and hence this hearing, of the following questions:

(1)  whether there should be leave for the parties to produce further medical evidence from orthopaedic, urological and psychiatric experts; and

(2)  whether direction should be granted for Ann’s to write to Yeung’s treating hospital for medical reasons for the information that Yeung is tetraplegic.

Discussion

21.The court has to consider if the proposed expert evidence is necessary, relevant and of probative value.  The evidence must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more issues to be resolved: see Wong Hoi Fung v AIA (Bermuda) Ltd & Anor [2002] 3 HKLRD 507; Arfan Muhammad v MPS Engineering Service Co Ltd, HCPI 457/2003 (20/6/2005); Wong Ka Yee v Gay Giano International Limited, DCEC 436/2007 (4/8/2009).

22.Each case is to be decided according to its own facts: see Abid Khan v Queen Wan Limited, DCEC 71/2008 (11/6/2009) at para.59; Wong Ka Yee (above) at para.64.

23.Essentially, Mr Cheng argued that the material in hands does not suggest any causal link between the injury and Yeung’s various symptoms.  He categorised Yeung’s application as a fishing expedition for medical expert evidence more favourable than that already obtained.

24.Mr Cheng referred to Fung J’s remark in Farman Khan v Lau Kai Hong & Anor, HCPI 850/2008 (29/4/2009) that the task of the court is not therapeutic but forensic; and an application to adduce expert evidence must be supported by prima facie evidence of relevance.

25.Mr Sakhrani for Yeung agreed with the principle stated by Fung J in Farman Khan.  But he submitted that there is sufficient prima facie material to support the relevance of the expert evidence being sought in the present case.

26.Mr Sakhrani accepted the neurological experts’ finding of no evidence of spinal cord or root lesion.  However he objected to the neurologists’ report being relied on as the complete answer because the experts are not in a position to claim expertise on the diagnosis of myofascial pain, psychiatric and urological problem of Yeung.  Their comments were made from the neurological point of view.

27.Mr Sakhrani submitted that experts in other specialities are needed to consider if there is other organic or non-organic psycho-social explanation for Yeung’s symptoms and their severity.  He however made clear that regarding the chronic pain and its disabling effect on Yeung, the more relevant discipline of expertise that should be sought to give an opinion should be a pain specialist rather than an orthopaedic expert.

28.Mr Sakhrani submitted that the medical issues in respect of the chronic pain, psychiatry and urology might well be intertwined so that a holistic approach was required in understanding the disability, causation, prognosis and loss of earning capacity in Yeung’s case.  For reasons discussed below, I tend to agree.

29.As far as the severity of pain and its disabling effect is concerned, Mr Cheng pointed out that the myofascial pain appeared only in early 2007.  He submitted that as the neurologists have already expressed a negative view on the causal link between the injury and the development of such pain, Yeung must have been feigning or exaggerating his pain and its disabling effect including his current wheelchair bound condition.

30.However, the medical reports recorded more than merely the subjective complaint of Yeung.  As Mr Sakhrani pointed out, the complaint about pain was corroborated by the objective sign of marked muscle spasm.  The fact that diagnosis of myofascial pain was first made in January 2007 does not necessarily negative that as a development from the injury.  I was assisted by Mr Sakhrani’s reference to the information downloaded from the website of MayoClinic in the United States which provided an introduction to understanding the definition, symptoms, causes, risk factors and complications of this diagnosis of such pain.

31.It does not appear from the medical reports from the treating public hospitals and doctors that Yeung was suspected of symptom exaggeration or malingering then.  On the contrary, various measures including home modifications and full-time domestic assistance have been recommended and arranged.  These were by any standard significant measures.  Such significant measures presumably would not have been recommended unless the occupational therapist was at least satisfied with the apparent genuineness of the severity of the condition of and its disabling effect on Yeung.

32.As to Yeung’s psychiatric condition and its correlation with the injury, Mr Cheng submitted that Yeung suffered from psychiatric illness as a result of his pain and paraplegia, not the other round.  If the pain and paraplegia, according to the neurologists, are unrelated to the injury, it follows, he submitted, that the psychiatric illness is likewise unrelated.

33.However, in the neurologists’ report, Dr Yu suggested psychiatric evaluation.  Dr Woo did not share such view.  In Abid Khan (above), the court considered an orthopaedic expert’s recommendation of psychiatric evaluation to be neutral.  But unlike the circumstances in Abid Khan, Dr Yu ’s recommendation in the present case should in my view be considered in view of the documented history of referral of Yeung to the Psychological (Pain) Clinic for pain management and the psychiatric treatment.

34.There was also mention in the treating hospital’s report of Yeung’s difficulty in accepting the chronic pain and disability since 2005.  All these suggest that it may well be premature to draw the conclusion now on the correlation between the onset of the chronic pain and the underlying psychiatry of Yeung as suggested by Mr Cheng.

35.Mr Cheng submitted that there is no basis for suspecting that the sprain and soft tissue injury could lead to the urological problem from the commonsense and medical points of view.

36.Though the hospital’s reports recorded urinary incontinence since July 2006, history of lower urinary tract symptoms since 2005 was also recorded.  Mr Cheng questioned the issue of the casual link between the injury and the tract symptoms and its relationship with the subsequent incontinence problem of Yeung.  The joint expert report has provided a conclusion on the issue from a neurological point of view.  But what an expert in the relevant discipline, i.e., urologist, would say is unknown.

37.Farman Khan (above) and Abid Khan (above) differ from the present case in that there was lack of documented history of any treatments and recommendations made by the treating doctors in respect of the allegedly related problem such as psychiatric problem.  This explains why the court there took the view that it might well suffice to ascertain from the hospital its evaluation rather than to proceed to obtain the proposed expert evidence.

38.In Wong Ka Yee (above), the respondent put in issue the genuineness of the applicant’s pain.  The applicant applied for leave to obtain psychiatric expert evidence.  The court had this to say:

“56. If the present case were a mere matter of assessment of credibility of the allegation of lingering pain (i.e., subjective complaint) not accompanied by objectively demonstrable clinical abnormalities, it is arguably a matter of veracity of the Applicant which the trial judge can safely deal with on the existing medical and expert reports and on witness evidence from the Applicant, and no further expert medical evidence is required.

57.   But here the situation goes much further.  The Respondent casts doubt on the genuineness of the Applicant’s pain reaction and consequent functional and work impairment, which presumably challenges the psychiatric diagnosis posed by Dr Lau for such conditions.  Thus any adjudication as to whether the Applicant’s claim is feigned, exaggerated or genuine turns more on the contest between the Applicant’s subjective complaints and the recognisable psychiatric illness identified by Dr Lau as being triggered by the Accident.  This is borne out by the considerations outlined below, and I cannot say that psychiatric expert evaluation is irrelevant.”

39.Likewise, by objecting to the MAB’s assessment and conclusion in the present case as mentioned above, Ann’s are not merely disputing Yeung’s complaints but are also questioning the need for the above treatments and recommendations by the treating doctors and therapists in respect of his chronic pain, psychiatric and urological problems.  This is apparent from the letter from the solicitors for Ann’s to PWH in April 2009.  The question is whether in resolving such dispute raised by Ann’s, it can be said that the proposed expert evidence from the proposed experts is irrelevant or unhelpful.

40.What the court needs to consider is whether there is sufficient prima facie material to support the relevance and usefulness of the proposed expert evidence, not whether the treating doctors have suggested the causal link in their reports.  It is not the function of the treating doctors.  Insofar as merely diagnosis is concerned, I agree with Mr Sakhrani that nothing more is likely to be expected from the public hospitals than that has been documented.  The fact is that previous attempt by the solicitors for Ann’s has not been met with constructive reply by the hospital.

41.Where the proposed evidence is plainly inadmissible or irrelevant, the court should refuse the admission of such evidence.  But where the court could not form a clear view on its relevance, or considers that it is clearly relevant, it should grant leave for the evidence to be adduced: see Wong Hoi Fung (above) at 511I-512A.

42.In my view, the available medical evidence contains prima facie material to support the relevance of the proposed expert evidence from pain specialist, psychiatrist and urologist.  Alternatively, it cannot be said that they are plainly irrelevant.

Order

43.I give leave to obtain the proposed expert evidence from pain specialist, psychiatrist and urologist.  Names of the proposed experts in these disciplines have previously been proposed.  I direct that within 14 days from the date hereof, parties do write to the court by way of Joint Written Application stating the directions required for the obtaining of such expert evidence in each of these disciplines which shall include:

(1)  the names of the single joint or the respective experts;

(2)  the date of the single joint or joint medical examinations of Yeung;

(3)  the expected date of completion of the single joint or joint expert reports; and

(4)  the proposed directions for the filing of the reports.

44.Counsel has made submissions on costs.  I order that costs of this hearing be to Yeung in any event to be taxed, if not agreed, with certificate for counsel.  Yeung’s own costs shall be taxed in accordance with the legal aid regulations.  However, I accept the submission of Mr Cheng that except for document bundle A, other bundles prepared for this hearing have not been shown to be necessary for the hearing.  Costs of preparing these other bundles are disallowed in any event.

Mr Ashok SAKHRANI instructed by Messrs Szwina Pang, Edward Li & Co for the Applicant upon the assignment by the Director of Legal Aid

Mr Alfred CHENG instructed by Messrs Hastings & co for the Respondent