KO WAI FAN v. TUNG WAH GROUP OF HOSPITALS

DCEC 2142/2018

[2022] HKDC 1086

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2142 OF 2018

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ASSESSMENT OF COMPENSATION

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1.  This is an assessment of compensation under Sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282 (“ECO”) regarding an accident at work on 26 September 2016. Interlocutory judgment on liability has been entered on 31 October 2018 by consent.

2.  The parties have agreed the following issues:

(a)  The average monthly earning of the applicant was HK$14,974.74;

(b)  The total amount of medical expenses is HK$2,135.00 under Section 10A of the ECO; and

(c)  The applicant has received periodic payments from the respondent from 26 September 2016 to 24 September 2018 in the total sum of HK$309,607.04 and also received a total sum of HK$1,545.00 as medical expenses.

3.  In view that the applicant is claiming 983 days of sick leave under Section 10 of ECO but neither parties have made any submission under S11(1A) and (1B) of ECO, the court has sought confirmation of the agreement of the parties under paragraph 2(a) above.  The solicitors for the applicant and the solicitors for the respondent have replied (in letters to the court dated 22 August 2022 and 23 August 2022 respectively) that both parties have agreed to abandon any adjustment of calculation of monthly wages in this connection.

4.  As such, the only two issues to be determined by the court are:

(a)  The appropriate sick leave period that the applicant is entitled to; and

(b)  Her loss of earning capacity.

Legal discussion on the “certified sick leave period” under Section 10 of ECO

5.  There is a legal question on the “deemed” or “mandatory” effect of s 10(2) of the ECO, which provides:

“For the purpose of this section a period of absence from duty certified to be necessary by a medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

6.  In Choy Wai Chung v Chun Wo Construction and Engineering Co Ltd [2000] 4 HKC 653, the Court of Appeal held that:

“It would seem that, perhaps, sight was lost of the mandatory effect of s 10(2)…No doubt, in civil claims for personal injuries, the court is entitled to look to see what the injuries of the plaintiff are and to see whether indeed the plaintiff was entitled not to be compensated on the basis he was not able to do any work. Compensation under the Employees’ Compensation Ordinance, however, is based in a number of respects on a different premise and the method of calculation is laid down in the Ordinance.”

7.  In Yu Tat Kam v Chu Tung Shing CACV 25/2008, the Court of Appeal held that s 10(2) does not mean that the court is bound to award compensation at four-fifths of the employee’s pre-accident earnings during the certified period.  Hon Yuen JA held:

“..the burden is on the employer to prove that circumstances existed for a reduction in compensation.  If the employer can prove that the employee was actually earning money during the certified period…Also if the employer can prove that despite the certified incapacity, the employee was still capable of earning money in a “suitable” employment…

…Having said that, we think it would only be in rare circumstances where an employer could prove potential earnings where total incapacity has been certified, because (a) it is not only physical disability that incapacities an employee from working – an employee may be incapacitated by discomfort or pain preventing him from concentrating, and (b) an employee is expected only to undertake employment which is suitable for him.”

8.  There is no dispute between the parties as to this legal principle.

9.  However, I am of the view that this does not mean that the court must necessarily “rubber-stamp” the certified sick leave period. 

10.  I would refer to my judgment of Cheung Sau Lin v Tsui Wah Efford Management Limited [2018] 3 HKLRD 865 where Section 16 of the ECO was discussed.  This section, in brief, provides that an employer may require an employee receiving periodic payment under Section 10 to undergo a medical examination and the employee shall be required to attend (under certain pre-conditions). 

11.  Section 16(4) further provides:

“If the employee fails to undergo a medical examination as required under this section, his right to compensation shall be suspended until such examination has taken place; and if such failure extends over a period of 15 days from the date when the employee was required to undergo the examination under subsection (2) or (3), as the case may be, no compensation shall be payable, unless the Court is satisfied that there was reasonable cause for such failure.”

12.  In Cheung’s case, I found that:

“The objective of the ECO is to expeditiously provide financial relief to employees (genuinely) incapacitated by work injury regardless of fault on part of the employer.  Thus the process needed to be simplified and straightforward: the right to claim as an employee is essentially established by providing sick leave certificates (Section 10(2)).  As such, the legislation must necessarily provide a “balanced protection” mechanism so that, on one hand, there will be quick relief for genuine cases but, on the other hand, the compensation procedure should not be abused because of its relatively simple process.”

13.  I interpreted Section 16 as providing an essential “protection” mechanism for the employee against “doctor-surfing” type behaviour whereby “a patient who is more concerned about obtaining sick leave certificates than any medical treatment can visit a doctor for a few times (after each sick leave period runs out) and then see another, informing each doctor essentially the same subjective complaints, and skipping the follow-up appointments to find another doctor before the previous doctor gets suspicious or advises more serious or invasive treatments.” and the employer will have to continue to pay under Section 10 on production of sick leave certificates.

14.  If the law requires the employer (and the court) to “rubber-stamp” all sick leave certificates no matter what the findings of the medical examinations are, why bother with providing the employer such right under Section 16? It does not make sense.

15.  As such, it must be open for the employer (and thus the court) to challenge the validity of the sick leave certificates by independently instructing for medical examinations.

16.  Of course, the burden will be on the employer to show that, for example, that the employee was in fact capable of earning money in suitable employment.  This could be done, for example, by production of independent expert medical evidence based on medical examinations.

17.  In the vast majority of circumstances, patients attending doctors are seeking for relief of their sufferings / physical disabilities and to return to normal lives (including, of course, normal working lives).  Thus, the “rare circumstances” that Hon Yuen JA mentioned might be situations where the above-mentioned “doctor-surfing” behaviour occurred, when the employer can show that the employee is more interested in seeking sick leaves than relief of any alleged sufferings / physical disabilities, pain and discomfort etc.

Background

18.  The applicant was working for the respondent providing residential and home care service.  She claimed that the accident occurred on 26 September 2016 whilst she was helping an elderly patient when she slipped and fell, face forward causing various claimed injuries to her forehead, nose, neck, upper and lower back, right chest, right hand and left knee.

19.  After attending Accident & Emergency Department at Prince of Wales Hospital, she further attended the staff clinic at Kwong Wah Hospital (“KWH”) until March 2017 because of complaints of persistent pain on her forehead, nose, neck and upper back.  She was referred to undergo physiotherapist, occupational therapy.  She was attending, amongst others, General Out-Patient Clinic, Surgical Specialist Clinic and Orthopaedics and Traumatology Department of KWH until around mid-2019.

20.  It is noteworthy that the first Medical Board on 1 February 2017 awarded 0% loss of earning with sick leaves from 26 September 2016 until 1 February 2017 (Form 7, Hearing Bundle page 111)).  And when the Review Medical Board was convened on 5 June 2019, the award was only 0.5% for loss of earning capacity (Form 9, Hearing Bundle page 131).  By then, the applicant has accumulated 983 days of sick leave which translates to about 4 months short of 3 years.

Expert medical evidence

21.  The court has the benefit of a Joint Medical Report (“JMR”, Hearing Bundle page 74 to 86) by Dr Chak Hing Chung, Eric (“Dr Chak”) instructed by the applicant and Dr David H.F.  Cheng (“Dr Cheng”) instructed by the respondent. 

22.  Both experts are provided with the same bundle of documents including all relevant medical reports and other medical documents.  They took history from and performed physical examination on the applicant at the same sitting on 12 November 2020. 

23.  In the JMR, both experts agree on the history, physical examination findings, radiological examination findings and information discovered on review of the medical documents.

24.  In summary, the experts found:

(a)  History: complaint of persistent knee, shoulder and lower back pain (Hearing Bundle page 76)

(b)  Physical examination: grossly normal (eg good range of movement in knee, shoulder and back with no muscle wasting etc.) with the only findings being a complaint of knee pain (when squatting and at end range of movement) and tenderness over lower back (i.e.  complaining of pain when the area was palpated) (Hearing Bundle page 76-78)

(c)  Radiological examination: shoulder: normal, knees: normal, lumbar spine: normal alignment with lordosis maintained, mild osteophytes.

25.  Under “Comments”, there appeared to be a disagreement between the experts as to the causation of chondromalacia of the patella (knee-cap) but this might be more significant under the context of a common law claim and not under an EC claim.

26.  Yet, despite the apparent agreement of all such medical examination findings and available evidence, the experts differ in their opinion regarding the effect of injury.

27.  With regard to loss of earning capacity, Dr Cheng opined that this was “mild” and the applicant “is fully fit to resume her pre-injury job as a home carer” and that “the injuries were simple contusions, hardly any physical impairment are detected.  The assessment of loss of earning capacity by the Board is acceptable.”

28.  On the other hand, Dr Chak opined that the applicant’s “working capacity is decreased” and “she is barely fit to resume her pre-injury job with work modification” and the permanent disability is 3%.”

29.  With regard to sick leave, it is perhaps telling that both experts did not recommend 983 days: Dr Cheng opined that “going through the follow-up notes…there are only subjective complaints” and opined that the applicant “should be advised to return to work when maximum medical improvement was reached” and would recommend a sick leave period from 26 September 2016 to 1 August 2017.  Dr Chak also recommended a reduction of sick leave to “at most 2 years”.

Discussion

30.  Given that both experts have perused the same set of medical reports and agreed on all the findings at the expert examination, I would question why, as “men of science”, their opinions differ quite significantly.

31.  The clue can be found in the JMR. 

32.  The complaints given by the applicant was persistent severe pain in various parts of her body.  These are of course subjective complaints. 

33.  The “objective” findings of the physical examination were normal: e.g.  no muscle wasting (muscle wasting is an objective sign which may indicate under-use of a muscle perhaps due to chronic pain) The only positive findings were essentially “subjective”: the applicant complained of pain on certain knee movements and on palpation of her lower back.

34.  The “objective” X-rays findings were also essentially normal.

35.  This is why Dr Cheng opined that “there are only subjective complaints” and “hardly any physical impairment are detected”.  (Hearing Bundle page 84 and 85). 

36.  On the other hand, Dr Chak opined that “her right shoulder pain and her left knee contusion injury likely worsen the condition of her left knee patella chrondromalacia.  The permanent disability of the residual pain of her right shoulder and left knee is estimated to be 3%”. (Hearing Bundle page 84)

37.  This explains the discrepancies in their opinions.  This is a case where there are plenty of “subjective” complaints, but in the absence of any supportive “objective” findings on physical examination and x-ray.  One expert, Dr Cheng, appears to be questioning the subjective complaints and the other, Dr Chak, have accepted them as true.

Duty of an expert dealing with cases of pure “subjective” complaints

38.  In my view, there are two important elements in any medical expert report: the “subjective” history (including various complaints) told to the experts by the patient, and the “objective” findings of the physical examinations and medical investigations like x-rays or blood tests etc.

39.  One main role for experts in assisting the court is in the interpretation of “objective” finings.  The court has no expertise in such. 

40.  Thus, in situations when the “subjective” complaints are supported by “objective” findings, the expert should opine so in the report, for example: “the complaint of persistent pain by the patient is supported by evidence of a mal-union of the fracture in the X-ray.”

41.  In other situations, when there are only “subjective” complaints without support of any “objective” evidence, the court requires the expert to be very careful in qualifying their opinion. 

42.  For example, the expert may qualify their opinion by stating: “the complaint of persistent pain by the patient is not supported by any objective findings at the examination”.  If appropriate, the expert may add: “however, there are limits to such objective examination / investigation and one cannot rule out such complaints entirely”.  He may also give further opinion regarding, say, the probability of having such “subjective” symptoms without “objective” physical findings. 

43.  Failing to qualify an opinion under such situations may raise a suspicion that the expert is trying to act as an advocate for the party instructing him.  As such, the expert has failed to discharge his duty to the court by not being an independent and impartial expert.

44.  After qualifying his opinion, the expert may then give his opinion on two scenarios: i) if the court finds the “subjective” complaints to be true, and ii) if the court finds it to be untrue.

45.  As such, the expert has, in effect, informed the court that this case becomes a fact-finding exercise regarding the truthfulness of the patient.  The court is clearly better equipped than the expert to deal with such matters: a doctor / patient relationship is based on trust so a doctor is not likely to be conducting cross-examinations on a patient during a consultation, and one cannot expect even an expert to do that during a medical examination.

46.  In my analysis of the JMR above, this is exactly the situation here.  The difference in the opinion between the two experts hinged upon a finding of fact: is the “subjective” complaint of persistent severe pain by the applicant to be believed?

The finding of fact: the “reasonable patient test”

47.  As discussed above, in the vast majority of situation, a patient attends a doctor to seek relief of sufferings and recovery from disabilities so he or she can return to a normal life. 

48.  Therefore, although pain (or other symptoms) itself may be a “subjective” complaint, the behaviour of a reasonable patient in response to genuine pain (or other symptoms) is a matter of objective facts that can be observed, recorded and, of course, cross-examined upon.  This is the basis of the “reasonable patient test”.

49.  During the hearing, the applicant informed the court that on a scale of 0-10 (0 being no pain and 10 being the most severe pain imaginable), her pain was at level 8 on her legs and chest.

50.  When asked about pain relief with medications, the applicant claimed that the pain was so severe that she was unable to sleep well since the accident, and that medications could only relieve her pain from level 8 to level 7. 

51.  The applicant even claimed that she was experiencing this level of pain all through the court hearing.  However, the court has observed that she has not exhibited any signs of pain and discomfort during the hearing at all.

52.  More importantly, when one reviews the hospital records, it is clear that the applicant has been prescribed paracetamol on multiple occasions from Kwong Wah Hospital General Out Patient Department clinic (“KWH GOPD”) and Kwong Wah Hospital Orthopaedics and Traumatology Department clinic (“KWH O&T”) from the date of the alleged accident until July 2017. 

53.  Further, one can also observe from the records that the applicant only returned to the clinics when each period of sick leave ran out.

54.  When asked whether she informed the doctors that paracetamol did not help cure her pain, she claimed that she did repeatedly but was told that “only the O&T department could prescribe stronger painkillers.”

55.  It does not make any sense to me why doctors from KWH GOPD are somehow only allowed to prescribed paracetamol.  Further, this clearly contradicts the records because KWH O&T has also prescribed paracetamol until at least 11 July 2017. 

56.  Another pain-killer, voltaren, was later prescribed, but this clearly also has not cured the applicant because she still complained of level 8 pain and sleepless nights even now.

57.  When the applicant was asked as to why she repeatedly went back to the KWH clinics when the treatment has been, all along, ineffective, she answered that she attended the clinics because the consultations were free.  The applicant further claimed that she could not afford even HK$100 to seek a second opinion from another hospital or doctor.

58.  In my view, a reasonable patient who suffered from genuine pain severe enough to disturb her sleep, when faced with ineffective medications, would unlikely endure the pain and sleepless nights for 3 or 4 days (until the sick leave happened to run out) before returning to see the doctor again.  I would expect that the patient would turn up at the clinic the very next day (or soon after) complaining to the doctor, seeking stronger medications, requesting further investigations (in case the doctor missed something), or even requesting referral to another doctor or clinic. 

59.  Instead, from the hospital records, the applicant has repeated this pattern of behaviour, returning to see the doctor only at the end of each sick leave period every time for almost 3 years.

60.  Further, a reasonable patient with genuine pain would unlikely to continue to attend the same clinic and taking the same ineffective medications for years, especially when the doctors have stubbornly refused to change the medications despite the patient’s repeated requests.  One would expect a reasonable patient to lose trust on such doctors very soon.

61.  In reality, not only that the applicant kept returning to see these doctors who must have failed to cure her pain for years, she did so, preferring to endure severe persistent pain rather than paying HK$100 to seek a second opinion.

62.  This is clearly absurd. 

63.  The only reasonable conclusion of such pattern of behaviour is that the applicant has been more concerned with seeking sick leave certificates than with curing any alleged persistent severe pain.  It logically follows that she could not have suffered from any pain, or at least any pain severe or persistent enough that she was concerned about curing.

64.  This is further supported by the fact that the KWH GOPD records shows that there have been at least 24 consultations when the applicant’s complaint was merely to “request extra sick leave” with “nil” prescription.

65.  Of course, one may also suggest that the reason why the applicant kept returning to various KWH clinics was not because the clinics provided any treatment that she might need, but because the clinics kept providing sick leaves easily and free of charge.  Thus, there was no need for her to do any “doctor-surfing”. 

66.  This is therefore an example of the “rare circumstances” that, despite the certified incapacity, the applicant was clearly capable of earning money in suitable employment.  The applicant’s claim was that her incapacity was caused by various persistent pain, but this court finds her unlikely to have suffered from any persistent severe pain, at least to the extent that she has any concern about having it cured. 

67.  As a passing comment, despite the applicant’s claim in evidence-in-chief that she felt unhappy etc.  and was seeking psychiatric treatment, the court noted that her first psychiatric consultation was apparently scheduled on 13 June 2022 (which happened to the first day of this hearing).  There is no psychiatric expert report before the court and, given that this consultation (which she could not attend) was some 6 years after the accident, the applicant failed to show the court how this is relevant to the current EC claim.

68.  Having considered all the evidence, I would conclude that the behaviour of the applicant is clearly inconsistent with that of a reasonable patient suffering from the complaints she alleges.  I would not accept her “subjective” complaints as truthful and would therefore accept the opinion of Dr Cheng. 

Assessment of compensation

Section 9

69.  The applicant was 52 at the time of the accident and as above, there is no dispute that her average monthly income was HK$14,974.74.

70.  As discussed above, I accept the opinion of Dr Cheng who also endorses the assessment of loss of earning capacity of the Review Medical Board at 0.5%.

71.  The compensation should be HK$(14,974.74 x 72 months x 0.5%) = HK$5,390.91

Section 10

72.  I accept the opinion of Dr Cheng that the appropriate sick leave period should be from 26 September 2016 to 1 August 2017, that is 310 days.

73.  The compensation should be HK$(14,974.74 x 4/5 x 310/30) = HK$123,791.18

74.  It is not disputed that periodic payments already paid amounts to HK$309,609.04.  On deduction of this sum, the compensation under this head should be 0. 

Section 10A

75.  There is no dispute that this amounts to HK$2,135 less medical expenses of HK$1,545, so the compensation payable should be HK$590.

76.  Total compensation payable is HK$(5390.91 + 590) = HK$5,980.91.

Order

77.  The Employees Compensation is assessed at HK$5,980.91 with interest at half judgment rate from the date of the accident (ie 26 September 2016) until judgment and thereafter at judgment rate until payment.

78.  There be a cost order nisi that the respondent pays the applicant costs of the action, to be taxed if not agreed.