DCEC867 & 868 of 2000
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES' COMPENSATION CASE NO. 867 OF 2000
|WONG WAI YING
|TUNG WAH GROUP OF HOSPITALS
EMPLOYEES' COMPENSATION CASE NO. 868 OF 2000
|WONG WAI YING
|TUNG WAH GROUP OF HOSPITALS
(Consolidated pursuant to the Order of His Honour Judge Carlson
dated 7th December 2000)
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
J U D G M E N T
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  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...