LAI TIM FAI JACKY v. LO YICK CHI t/a STANDARD TIRES & BATTERIES

DCEC 826/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 826 OF 2001

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ASSESSMENT OF COMPENSATION

INTRODUCTION

1.  This is a claim for compensation pursuant to the Employees’ Compensation Ordinance, Cap.282 (“ECO”).  By consent, judgment on liability was entered in October 2001 for compensation to be assessed.  Hence this hearing.

BACKGROUND

2.  While repairing a tyre of a container truck in the course of his employment with the Respondent on 28 September 2000, a metal ring flew out and hit the Applicant’s head.

3.  The Employees’ Compensation (Ordinary Assessment) Board (“the Board”) issued its certificate of assessment of the Applicant on 21 May 2003.  The injury was described as “head injury resulting in post-concussion syndrome, left eye visual impairment and psychiatric impairment.”  The loss of earning capacity was assessed at 36%.  The assessment was reviewed and the certificate of review dated 29 October 2003 recorded a 51% loss of earning capacity.

4.  The Applicant claims compensation pursuant to the following sections of the ECO:

(1)	total incapacity pursuant to section 7;
(2)	care and attention pursuant to section 8;
(3)	permanent partial incapacity pursuant to section 9;
(4)	temporary incapacity pursuant to section 10; and
(5)	medical expenses pursuant to section 10A.

5.  In respect of (4) above, the Applicant has received periodical payments equivalent to 4/5 of his salary during his 2-year sick leave period, amounting to HK$212,699.84.  He claims periodical payments for another 12 months pursuant to section 10(5) of the ECO.

6.  By the application, the Applicant also appealed against the assessment of the Board, if appropriate.  At the hearing, the intended appeal was not pursued.

7.  The Respondent contends that the accident in question did not cause the above impairment or, even if it did, to a minor degree.  By notice pursuant to section 18 of the ECO, the Respondent appeals against the Board’s assessment.

WITNESSES

8.  The Applicant used to be legally aided until less than 3 weeks before this hearing.  The Applicant attended the hearing in person.

9.  The Applicant adopted the contents of his statement as evidence.

10.  As far as medical evidence is concerned, reports by experts of various disciplines have been filed.  The government hospital medical records were adduced without having to call the makers.  Specific directions to like effect have been made in respect of the neurologist reports and the ophthalmologist report.  The psychiatrists were supposed to testify.  At the hearing, the Applicant’s psychiatrist was not called.  This was not surprising in view of the discharge of legal aid.  The psychiatrist engaged on behalf of the Respondent attended.  The Applicant had the opportunity of questioning her in court.

INJURIES AND TREATMENT

11.  The Applicant’s left frontal bone area was hit.  There was no loss of consciousness.  This caused a 4-cm laceration at his forehead above the left eyebrow.   X-ray and scan revealed no haematoma or pneumocephaly.  He was treated conservatively with suturing.  He was referred to the neurosurgical and eye team but no intervention was necessary.  He was discharged about a week later.

THE 1991 ACCIDENT

12.  The Applicant admitted that he was previously injured during an explosion at work in 1991.  According to the hospital record, he sustained a severe head injury with an open compound depressed fracture of the left parietal skull.  Multiple neurosurgical operations were performed.  He was comatose for 2 weeks before he gradually recovered.  In 1992, he was re-admitted for another operation to repair the skull bone defect.  This was uneventful and he has recovered.  But he has residual permanent right hemianopia, i.e., right temporal visual field loss.  He resumed work.  There was no record of psychiatric complication then.

THE ALLEGED VISUAL IMPAIRMENT

The government records

13.  The government ophthalmologist in his report dated July 2003 stated that the Applicant’s central visual acuity was normal but the visual field defect was quite extensive.  This was likely related to the brain insult in the 1991 accident.  No other ophthalmologic complication was detected.  No comment could be given on whether the Applicant’s current visual impairment was solely due to the injury in the 2000 accident or related to the 1991 accident.

Ophthalmologist opinion

14.  Dr Kenneth Ng is the ophthalmologist engaged on behalf of the Applicant.  According to his report dated 29 March 2007, the Applicant complained about loss of peripheral vision in both eyes.  Dr Ng confirmed that the Applicant’s right eye visual defect was compatible with the old brain lesion in 1991.  The right homonymous hermianopia was pre-existing and a sequel of the injury in 1991.  The injury caused by the 2000 accident was relatively minor.  There was no loss of consciousness, neurological deficit, or new intracranial lesion as a result.  CT scan and MRI of the brain also confirmed the 2000 accident had not produced any new physical damage to the brain.

15.  From the various tests performed on the Applicant, Dr Ng found the bilateral severe visual field constriction projected by the Applicant to be totally incompatible with the above clinical, CT and MRI findings.  No clinical features of bilateral advanced glaucoma, retinitis pigmentosa or bilateral severe optic neuropathy was noted.  The Applicant managed to attend Dr Ng’s clinic by himself.  He walked promptly with no difficulty.  He could navigate around obstacles.  These for a patient with advanced visual field constriction as projected by the Applicant would have been impossible.  Dr Ng felt that the behaviour observed in the Applicant cast doubt on the accuracy and genuineness of the visual field analysis result.  He believed the loss of vision projected was non-physiological.

16.  Dr Ng concluded that the Applicant has not suffered any visual disability as a result of the minor head injury in the 2000 accident.

Neurologist opinion

17.  In both his reports dated August 2001 and December 2002, Dr Edmund Woo, the neurologist engaged on behalf of the Respondent, queried the Applicant’s complaint about tunnel vision and his projection of substantially reduced bilateral visual acuity.  In his first report, Dr Woo opined that the pattern of visual field loss was non-physiological and incompatible with any known pathology in the visual pathways.  In his second report, Dr Woo added that the Applicant demonstrated grossly inconsistent visual field testing results.  Like Dr Ng, Dr Woo found no functional deficit on the part of the Applicant which would correspond with the alleged marked restriction of peripheral vision.  This raised serious doubt about the genuineness and integrity of the Applicant’s complaint.

THE ALLEGED NEUROLOGICAL AND PSYCHIATRIC IMPAIRMENT

Post-concussional syndrome

18.  The government neurologist gave a working diagnosis of post-concussional syndrome (“PCS”) in October 2000.  The neurologists engaged on behalf of the parties apparently accepted this afterwards.  Dr Yu, engaged on behalf of the Applicant, assessed the Applicant’s neurological impairment was 3% of the whole person.  According to Dr Woo, engaged on behalf of the Respondent, the Applicant’s neurological impairment was mild, amounting to 1% of the whole person.  Both experts opined that the Applicant should be neurologically fit to resume his pre-accident employment with very mild reduction in earning capacity.  In Dr Woo’s view, such reduction should not exceed 1%.

19.  The Respondent launched a fundamental attack on the working diagnosis of PCS.  Professor Felice Lieh Mak, psychiatrist engaged on behalf of the Respondent, produced her report dated July 2004 and gave evidence in court.  She questioned the diagnosis of PCS as clinical evidence of a significant cerebral concussion as a result of the 2000 accident was absent.  The head injury was very minor.  The pre-requisites for a proper diagnosis of PCS, including loss of consciousness, amnesia, traumatic brain injury, seizures (though relatively uncommon), dizziness, nausea or vomiting, were lacking.

20.  Reading the reports of Dr Yu and Dr Woo, I find that both doctors were actually aware of the very minor degree of head injury, and presumably the possible degree of resultant concussion, suffered by the Applicant.  Dr Yu noted no loss of consciousness, post-traumatic amnesia or feature of traumatic brain injury.  Dr Woo also recorded the Applicant’s different versions about his consciousness after the accident.  In his report dated August 2001, Dr Woo recorded (and queried) the Applicant’s alleged delayed loss of consciousness for 10 hours only after arrival at the hospital.  In his report dated December 2002, Dr Woo recorded the Applicant’s alleged immediate loss of consciousness which was regained on arrival at the hospital.  In court, the Applicant could not really explain these 2 different versions recorded by Dr Woo.  He eventually said that he just felt dizzy after the accident.  Nevertheless, the doctors opined that some symptoms were consistent with PCS.

Psychiatric symptoms

21.  According to the government hospital records, there was no known psychiatric assessment for any cognitive impairment as a result of the 1991 accident.  After the 2000 accident, psychiatrist was first consulted in 2001 and the diagnosis was neurosis but the Applicant declined further psychiatric follow-up treatment.  Later, the Applicant was referred to the outpatient clinic of the mental health hospital for multiple somatic complaints.  He complained about persistent low mood, pessimistic thought, poor appetite with weight loss, insomnia, poor memory, decreased reaction time, worrying thoughts of inability to resume work.  The diagnosis was then revised to organic brain syndrome with depressive and psychotic symptoms.

22.  As mentioned above, Dr K Y Mak was the psychiatrist engaged on behalf of the Applicant.  He did not attend the hearing.  However, Professor Lieh Mak in her reports specifically commented on Dr Mak’s opinion and so did Ms Molloy for the Respondent in this hearing.  I need to refer to Dr Mak’s opinion for completeness.

23.  In his report dated November 2001, Dr Mak found that the Applicant suffered from substantial psychosocial disabilities and affective psychosis.  In his report one year later, Dr Mak assessed that the Applicant would be suffering 40% loss of earning capacity on account of the psychiatric disabilities.  Dr Mak maintained his assessment in another report one year later.  Dr Mak examined the Applicant again in January 2004, leading to his report dated February 2004.  He adjusted the clinical analysis to organic psychosis and suggested that the Applicant might need indefinite treatment.  Loss of earning capacity was assessed at 32%.

24.  Professor Lieh Mak made the fundamental point that the 2000 accident itself did not cause any actual brain damage or dysfunction or severe concussion.  Therefore the basis for the alleged disorder and organic brain syndrome did not exist in the first place.  Likewise, she ruled out the alleged depression and psychosis, the same being feigned or exaggerated.  The Mini-Mental State Examination (“MMSE”) administered by her on the Applicant, she considered, confirmed that.

25.  Professor Lieh Mak was not the first expert who detected possible feigning or exaggerating symptoms on the Applicant’s part.

26.  As mentioned above, Dr Ng, the Applicant’s ophthalmologist, found that the paradoxical behaviour observed in the Applicant cast doubt on the accuracy and genuineness of the visual field analysis result and concluded that the Applicant has not suffered any visual disability as a result of the 2000 accident.  This confirmed Dr Woo’s scepticism about the genuineness and integrity of the Applicant’s alleged loss of bilateral peripheral vision.

27.  In the MMSE administered by Dr Yu on the Applicant, the Applicant tended to give approximate answers.  With encouragement, the Applicant’s performance somewhat improved.  His response was said to be excessively slow.  Dr Yu found that the serious cognitive and memory deficits that the Applicant claimed and attempted to show were out of proportion to the very minor head injury he sustained.  There were clear indications that the Applicant’s alleged deficits were not neurological.

28.  For the purpose of detecting unreliability, the professor administered the Structured Interview of Reported Symptoms (“SIRS”).  The professor commented that the Applicant’s endorsement of even rare symptoms of psychosis was in the range of definite feigning.  There was gross exaggeration of intellectual impairment, a tendency also revealed in the MMSE conducted by her and Dr Yu.

29.  Dr Mak had the chance of considering Professor Lieh Mak’s opinion.  As stated in his report in October 2004, Dr Mak did not notice the gross inconsistency as found by the professor and was not too aware that the Applicant had been malingering.  He was not familiar with the use of SIRS nor was in a position to comment on its validity and reliability on a Chinese patient.  Trying to explain, Dr Mak then suggested the possibility of factitious disorder, i.e., tendency to play the sick role.

30.  In his report dated September 2004, Dr S K Leung, the psychiatrist of the government mental health hospital, commented that there was no definite evidence of feigning or exaggerating symptoms by the Applicant.  Yet like Dr Mak, Dr Leung did not have the benefit of the additional objective test from which Professor Lieh Mak could find such further evidence.  Further, Dr Leung in his report dated September 2004 concluded that the Applicant had a moderate degree (15%) of psychiatric disability, less than half as serious as that assessed by Dr Mak (36%) just half a year ago.  The difference, in my view, was too substantial to be simple fluctuation of condition.

31.  The information about the Applicant revealed by Dr Leung’s latest report dated this June causes additional concern.  Dr Leung recorded that the Applicant defaulted psychiatric follow-up treatment since March 2005 until March 2006.  The Applicant explained to the doctor that he had gone to the Mainland with his friends.  They were found to have soft drugs while he had possession of psychiatric medications.  He was therefore imprisoned.  In October to November 2006, the Applicant was admitted to the mental health hospital in Hong Kong with the diagnosis of substance (stimulant) abuse with psychotic symptoms.

32.  While the Applicant asked me to prefer the opinion of Dr Leung to that of Professor Lieh Mak, he denied in court Dr Leung’s record of his trouble with the authority in the Mainland and his stimulant abuse.  This is contradicted by his then solicitors’ letter in June 2005 to the court.  By that letter, his solicitors informed the court of the Applicant’s arrest and detention in the custody centre at Shenzhen for the offence of trafficking and/or possession of dangerous drugs.  As a result, the case had to be adjourned sine dine.

33.  Trying to explain, the Applicant asserted that it was his friends who spiked his drinks more than once so that he effectively took the stimulant involuntarily.  This is difficult to believe in.  Whether that had indeed happened, I wonder how he would be diagnosed with substance abuse by the mental health hospital in Hong Kong if these were merely some isolated incidents without entailing some sort of dependence on the substance involved.  In this regard, Professor Lieh Mak was prepared to agree with Dr Leung’s diagnosis of substance abuse with psychotic symptoms but not organic brain syndrome (as she always maintains).

34.  The Applicant’s alleged incapacity has been examined from the practical perspective.  He claimed that he had to be taken care of by his mother.  This contradicts the government doctors and the experts, Dr Yu and Dr Woo, who found that Applicant is able to manage daily activities independently.  The Applicant was reported to enjoy watching television at home.  He admitted that in court.  He might sometimes read newspapers.  He could play mahjong.  Professor Lieh Mak opined that a person with the degree of psychiatric disability and hallucination as projected by the Applicant could hardly have the requisite concentration for such activities.  The Applicant admitted in court that he manages to go to shop and the bank.  As recorded in expert reports, he attended the examination by the medical experts unaccompanied.  He also said in court that he enjoyed hanging out with friends outside home.  As mentioned above, he would even go north across the border with his friends.  He came across the stimulants when he went to disco with his friends.  He admitted that he had fought with people and managed to inflict injury on them.  Yet, when he was examined by Dr Yu, his response was found to be excessively slow.  According to Dr Leung, the Applicant refused occupational training despite advice.

35.  Regarding his claim, Dr Leung also recorded that the Applicant asked for sick leaves from the outpatient clinic at an early stage, as these would be necessary for his claim.  He also told Dr Leung that he was worried about the compensation.  Dr Leung recorded that his symptoms seemed to have improved but worsened again in June 2003.  The Applicant admitted to the doctor that this had to do with the Respondent’s intended appeal against the Board’s assessment. It should also be noted that according to Dr Leung, it was the Applicant who personally requested for his latest report this June for the purpose of this hearing.

36.  I also saw how he conducted his case in court.  He impressed me as being conscious of the need to establish that he had a lot of symptoms contrary to what Professor Lieh Mak opined.  In fact during his attendance of Professor Lieh Mak’s examination in July 2004, the Applicant was recorded to have said to the professor that his condition had to be serious as he had so many symptoms.  In court, he questioned the professor’s opinion as she had examined him only once.  In his closing submissions, the Applicant emphasised the correctness of the opinion of Dr Mak and Dr Leung.  He managed to refer to the 2 certificates of assessment issued by the Board and the percentage loss of earning stated therein respectively.  He told me how much it cost per session of outpatient treatment.  He admitted to me that he prepared for the submission and even submitted an authority which he said his previous solicitors thought might be useful.

37.  I should perhaps mention that the authority submitted was LKK Trans Ltd v Wong Hoi Chung (2006).  The issue in that case was whether the compensation under the ECO is subject to apportionment according to the extent of incapacity caused by the pre-existing disease and that by the accident in question.  This would not be relevant if the Applicant cannot even establish that the 2000 accident did cause him the disabilities as alleged.  As mentioned above, there was also insufficient, if any, record of psychiatric complication or intervention due to the 1991 accident.

CONCLUSION

38.  Considering the medical evidence and the above expert analysis, I have no reservation in rejecting the Applicant’s claim about the visual impairment being caused by the 2000 accident.  Having taken this in account, the Board’s assessment already cannot stand.

39.  I prefer Professor Lieh Mak’s evidence to that of Dr Mak and Dr Leung insofar as whether the Applicant feigned and exaggerated his psychiatric symptoms is concerned.

40.  While Professor Lieh Mak disagrees with the diagnosis of PCS proper, the common findings by Dr Yu and Dr Woo of the actual symptoms, though minor, should not be ignored.  As her secondary contention, Ms Molloy for the Respondent submitted that these symptoms should only give rise to a minor degree of impairment and loss of earning capacity.  Ms Molloy suggested 2% for the purpose of the ECO, being the median between the two doctors’ assessments.  Taking into account the neurological symptoms and some degree of psychiatric disturbance which the Applicant has, I am prepared to adopt 3% loss for the purpose of the ECO.

41.  Effectively I also allow the Respondent’s appeal against the Board’s assessment under section 18.

Pre-accident income

42.  At the hearing, Ms Molloy for the Respondent accepted that the monthly earnings of the Applicant was HK$11,202 prior to the accident (as per the Application).

Sections 7 and 9 compensation

43.  In view of the evidence, I am not satisfied that the 2000 accident has caused the Applicant permanent total incapacity.

44.  Regarding the temporary total incapacity, the compensation shall be HK$11,202 x 96 x 3% = HK$32,261.76.

45.  Ms Molloy submitted that there is no special circumstance in this case to justify invoking section 9(1A) of the ECO for the purpose of assessment of compensation.  I agree.

Section 8 compensation

46.  The Applicant needed to prove that the 2000 accident has caused him permanent incapacity which rendered him incapable of performing the essential actions of life without the care and attention of others.  The evidence shows the contrary.

Section 10 compensation

47.  The Applicant has received periodical payments for the entire 2 years of sick leave in the amount of HK$212,699.84.  He claims further periodical payments pursuant to section 10(5) of the ECO.

48.  Both Dr Yu and Dr Woo opined that that the Applicant should have recovered his neurological functions in about 1 year.  Ruling out the feigned psychiatric symptoms, Ms Molloy submitted that the Applicant had effectively been overpaid.  I had expected argument about the reasonableness of the sick leaves obtained by the Applicant on the basis that part of them might have been obtained by malingering.  However, Ms Molloy confirmed that the Respondent did not intend to argue that but simply asked me not to exercise the discretion under section 10(5) in favour of the Applicant any further.  This, I accept, is fair and ought to be my decision in view of the evidence.

Section 10A compensation

49.  According to his statement, the Applicant claims an amount of HK$15,000 being accrued medical expenses.  He claims the medical expenses are still continuing.  Ms Molloy for the Respondent submitted that the amount claimed is excessive.  She submitted that the Applicant’s medical expenses over the past 5 to 6 years would have been free as he has been on public assistance.  In court, the Applicant disputed that, saying that he only received disability allowance.

50.  I accept Ms Molloy’s submission that the amount claimed should not be allowed in full in view of the medical evidence mentioned above.  I am prepared, in doing my best in the circumstances, to award a lump sum of HK$3,000 under this head.

Interest

51.  For legal proceedings which were commenced in late 2001, it has indeed taken too long for the matter to come to trial in 2007.  Ms Molloy for the Respondent submitted that the period of inaction for one year since about May 2005 was due to the Applicant.  As mentioned above, his then solicitors in June 2005 had to inform the court of his arrest and detention in the Mainland and therefore the need to adjourn the case sine dine.  Ms Molloy submitted that the Respondent should not be made to bear interest on the judgement sum for that period.  I agree.

Summary

52.  The compensation should be HK$32,261.76 (under section 9) plus HK$3,000 (under section 10A) = HK$35,261.76.

ORDER

53.  Judgment is entered in the above sum against the Respondent with interest thereon at half judgment rate from the date of accident until today, save and except a period of 12 months commencing from June 2006.  Interest from today until full payment shall run at the judgment rate.  I make an order nisi that the Applicant shall have the costs of this application, including any costs reserved, which shall be taxed, if not agreed.  The costs order shall become absolute in the absence of appointment to argue in 14 days.