HUEN CHEONG LAM v. J.V. FITNESS LTD (IN LIQUIDATION)

DCEC 810/2016

[2021] HKDC 101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 810 OF 2016

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JUDGMENT

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INTRODUCTION

1.  This is an employees’ compensation claim arising out of an accident which happened on 6 March 2015, made pursuant to the Employees’ Compensation Ordinance (Cap 282) (“the Ordinance”).  Interlocutory Judgment on liability had been entered in favour of the applicant by consent on 22 November 2016. 

2.  This is the trial for the assessment of compensation payable to the applicant.

3.  Before I proceed to consider the amount of compensation payable under sections 9, 10 and 10A respectively, I will resolve the following issues first.

(1)  How exactly did the accident happen?

(2)  Did the accident in question injure the applicant’s left knee?

(3)  Did the applicant exaggerate the extent of his injury while he was examined by various doctors?

HOW DID THE ACCIDENT HAPPEN?

4.  At the trial, the respondent challenged the applicant’s evidence as to how exactly he got injured.  As a result, CCTV footage was played during the trial and the applicant was cross-examined on this matter for quite a while for this purpose.

5.  In his closing submissions, Mr Yip for the applicant submitted that it was doubtful whether it was open to the respondent to make such a challenge, as the respondent, by the acceptance of its liability, should be taken to have accepted that the accident had occurred in the way as described in paragraph 3(3) of the Amended Application.

6.  With respect, I am surprised that this argument was made after so much time had been spent on this matter at the trial as aforesaid.  If Mr Yip is right, the respondent should not have been allowed to waste such time during the trial.  In my view, given the fact that the respondent had clearly indicated in its written opening submissions that the aforesaid challenge would be made, Mr Yip should have raised his objection before the applicant was called to give evidence, or no later than the time when Mr Ho started to cross-examine the applicant on this issue.

7.  In any event, the applicant’s argument is a non-starter, because the respondent’s admission of liability should not prohibit it from making any point in relation to quantum.  The position in the present case had been made even clearer because the consent order on liability dated 22 November 2016 provided that:-

“Interlocutory judgment be entered on liability in favour of the applicant against the respondent […] without prejudice to the respondent’s right […] to challenge the issue of causation and other issues which may arise in assessing quantum.”

8.  The way the applicant got injured, in my view, would have an impact on the extent of the injury suffered as a result of the accident and in turn would have bearing on quantum.  For this reason, it is clearly open to the respondent to raise this as an issue in the assessment of compensation.

9.  I now turn to consider the question of how the applicant got injured.

10.  The applicant was a personal trainer working at a gym run by the respondent at the material time.  At the time of the injury, he was coaching a member of the gym (“the Member”), who was doing a set of weight-bearing squatting exercises.  In these exercises, the Member was required to hold a barbell of around 130 – 140 pounds over his shoulders (and behind his neck) while he was squatting.  To render assistance, the applicant had to stand behind the Member, put his hands under and through the Members’ underarms and hold the barbell, and squat together with the Member.

11.  The applicant explained how he got injured in his witness statement as follows:-

「當時的深蹲練習一直很順利 ，直至該會員做到第三組的大概第8至第9次深蹲時，該會員突然失去平衡，連同手上的該槓鈴一起向後壓向本人。當時本人托住該槓鈴，並已(sic)半蹲的姿態支撐著該會員，本人腰部和腳部即時感到痛楚。後來本人和該會員支撐著將該槓鈴放回深蹲架的安全線(距地面約50cm高)，本人才能勉強站起來…」

12.  According to various medical reports, the applicant had also described what happened to various doctors.  He claimed that the Member “fell backwards towards him”, “sat on him”, and “fell backwards and leaned against him”.

13.  Mr Ho for the respondent submitted that these were exaggerations.

14.  Having watched the CCTV footage, I accept that the Member did lose balance while he was squatting and lean backwards towards the applicant. 

15.  Mr Ho submitted that as a matter of common sense, the Member could not have fallen backwards and sat on the applicant if the Member was (as accepted by the applicant) able to move forward “within the next second”.  I do not agree with this submission.  It can be seen from the CCTV footage (which, contrary to Mr Yip’s submission, is generally clear enough for our purpose) that as the respective bodies of the applicant and the Member were very close to each other when the Member lost his balance, the Member’s buttocks did come into contact with the applicant’s thighs while the Member was leaning backwards, and, with the applicant’s body support, the Member regained his balance quickly, and was able to move forward and stand up himself shortly thereafter.  I can see nothing wrong for the applicant to say that the Member “sat” on him or “fell backwards and leaned against him”. 

16.  What I do not accept is that the applicant had “托住該槓鈴” nor that he had “和該會員支撐著將該槓鈴放回深蹲架的安全線” as alleged in the applicant’s witness statement.  As the applicant recognised in court, the barbell had already landed on the rack (深蹲架) while the Member was leaning backwards, as he was nearly at the full squat position when he leaned against the applicant. 

17.  It should also be noted that while I accept that the applicant did “hold” the barbell when the Member was doing his squatting exercises, the applicant, as he admitted in court, was not exerting any force, and the whole purpose of “holding” the barbell was to stabilise it and prevent it from slipping down from the palms of the Member.  It was simply impossible for the applicant to “托住該槓鈴” while the Member was falling/leaning towards the applicant, as the applicant’s hands would be coming from a direction above the barbell.

18.  I agree with Mr Ho that the reason why the applicant stated in his witness statement that he had “托住該槓鈴” and “和該會員支撐著將該槓鈴放回深蹲架的安全線” at the material time was because he was minded to exaggerate the amount of weight exerting onto him while the Member was leaning backwards so as to support his own case that he had suffered a serious injury.  I do not accept the applicant’s explanation in court that these mistakes in his witness statement were caused by the fact that he had not watched the CCTV footage before he made that statement.  I do not think he needed to be reminded about what had happened at all, because he should have been able to tell from his own experience that he could not be exerting any force on the barbell at the material time, and it was impossible for him to “托住該槓鈴” by reason of the position of his hands and the way he “held” the barbell. 

19.  Indeed, when the applicant was asked (after the CCTV footage was played in court) whether he was touching the barbell when the accident happened, the applicant told the court that while he could not see clearly from the CCTV footage, he probably was touching the barbell because that was what he normally did when he was coaching.  Apparently, the applicant was able to recall how he had coached his students even without watching the CCTV footage.  To say that he had made a mistake on whether he had “托住該槓鈴” because he had not watched the relevant footage was, in my view, just an excuse.

THE APPLICANT’S LEFT KNEE INJURY

20.  The next question is whether the applicant had injured his left knee as a result of the accident on 6 March 2015.

21.  In my view, he did not, as it is plainly not supported by the contemporaneous medical records:-

(a)  According to the ambulance record, the applicant complained of low back pain, sprain and left knee numbness when he was sent to the hospital in the night of the accident;

(b)  According to the record of the A&E Department of Kwong Wah Hospital, the chief complaint which the applicant made at the triage on 6 March 2015 was “sprain back with left leg numbness”; 

(c)  In the medical report compiled by Dr Lee of the A&E Department of Kwong Wah Hospital, it was stated that “He had sustained back sprain during work on the same day [6 March 2015].  Physical examination revealed tenderness over lumber spines…”;

(d)  In the consultation note written by a Dr Chan on 10 March 2015 (when the applicant attended the first consultation after he was discharged on the night of the accident), it was recorded, among other things, “vague numbness along L thigh”, “SLR slight ↓ L side, no radiation beyond knee”;

(e)  According to the Progress Sheet of the Physiotherapy Department of Prince of Wales Hospital, the applicant did not make any complaint of knee pain on 27 March 2015 or 13 April 2015;

(f)  In the Consultation Summary of Lek Yuen GOPC, the applicant only complained about radiating pain over his left thigh on 13 April 2015.  He did not mention anything about knee pain at that time;

(g)  In the Nursing Note dated 22 April 2015, it was stated: “he c/o of back back (sic) with left sciatica pain, pain increased when leg with flexion position”;

(h)  In the Discharge Summary of the Prince of Wales Hospital dated 22 April 2015, it was only recorded that the applicant had complained of “some radiating pain over left thigh”;

(i)  According to the documents placed before the court, it seems that the first time the applicant complained about having pain in his left knee was on 12 June 2015:  See the Consultation Note of Lek Yuen GOPC dated 12 June 2015;

(j)  In the medical report of Dr Chun Siu Yeung dated 27 August 2015, it was recorded that the applicant told Dr Chun on 26 June 2015 that he was suggested by a Dr Wong, an orthopaedic surgeon, “1 week prior to this examination” (i.e. on around 19 June 2015), to have MRI of the left knee taken.

22.  Mr Yip submitted that “the incontrovertible fact was that the Applicant experienced left leg pain immediately after the Accident”[1]. With greatest respect, this is not accepted, because as far as his left leg was concerned, all the applicant complained right after the accident was numbness.   The first time he complained about radiating pain over his left thigh was on 14 March 2015.  Even then, the complaint was not about his left knee.   He never complained having left knee pain before 12 June 2015.

23.  The applicant explained that he had in fact told his treating doctors about his left knee pain.  He said, however, the doctors told him that when his back was healed, the knee pain would also subside, and because of this assurance (“the Assurance”), he did not mention about his knee pain to other treating doctors anymore.  He further stated that he mentioned about left knee pain to the doctors again in June 2015 because such pain remained despite the fact that he was feeling better with his back, and as a result he started to worry about his knee.

24.  I do not accept the applicant’s explanation. 

25.  Assuming the applicant was telling the truth when he explained why he did not mention about his knee pain again, that would only be applicable to those occasions after he had been given the Assurance. It does not apply to the time when the applicant was asked by the ambulance officer and the triage nurse on 6 March 2015 to describe his condition.  As aforesaid, it is evident that the applicant did not mention about knee pain at all on those occasions.  I do not believe that both the ambulance officer and the triage nurse had omitted to record the applicant’s knee pain if he had indeed told them about it.

26.  In any event, I reject the applicant’s evidence that because of the Assurance, he did not mention about his knee pain to the treating doctors any further.  In my view, it is just natural for any patient to inform his/her doctors of all the pains/problems so that the doctors would have full knowledge about them and give the best treatment.  The applicant’s explanation does not make any sense.  Moreover, such an assertion could not explain why the applicant did not tell Dr Fu Wai Kee on 15 April 2015 about his knee pain.  The applicant knew that Dr Fu was instructed by the insurer of the respondent to do the examination.  There could be absolutely no reason why the applicant should refrain from mentioning about his left knee pain as it was against his own interest to do so.

27.  Hence, even if the applicant had any left knee pain at any time, it is my finding that he did not have such pain before June 2015, and that such pain was not caused by the accident on 6 March 2015. 

28.  The above findings could also find support from the opinion of the medical experts.

29.  In the Joint Expert Report dated 20 October 2017, Dr Wong See Hoi (who was instructed by the applicant) opined in paragraph 44 that:-

“According to the clinical course, left knee symptoms was not documented from all the initial treatment records, and even his first course of physiotherapy from 13/03/2015 to 11/09/2015 was only for his back pain, not left knee problem. The meniscal signal changes (tear) found by MRI was not likely related to the alleged accident. This is because if the tear was injury induced, symptoms of left knee should occur within days or at most 1-2 weeks after the accident. The late onset of his left knee problem, in contrast to his back problem, was not related to the alleged accident.”

30.  Dr Chun had arrived at the same conclusion.  He stated in paragraph 54 of the Joint Expert Report that:

“…In short the left knee MRI and physical findings are inconsistent to the minor sprain left knee injury and the MRI findings were not caused by the alleged injury but pre-existing part & parcel of the degenerative picture.”

THE ALLEGED MALINGERING

31.  On behalf of the respondent, Mr Ho had made extensive allegations against the applicant for malingering.  In his cross-examination and final submissions, he had systematically categorised his allegations under various sub-headings, namely, “changing locations of pain”, “drastic changes of symptoms” and “deterioration of physical conditions over time”, and in respect of each of these matters, he had quoted and cross-examined the applicant on different examples and incidents. 

32.  The applicant had given various explanations to the challenges of the respondent.  Mr Yip also made submissions accordingly. They had indeed successfully cast doubt on some of those challenges. 

33.  To find that an applicant had malingered is a very serious matter and I will not come to this conclusion lightly.  I am of the view that I should only make such a finding if I am satisfied that there is clear evidence in support.

34.  Is there any clear evidence in support of the respondent’s claim of malingering or exaggerating the extent of injury on the part of the applicant herein?  I am afraid there is. 

35.  Firstly, it can be seen from the applicant’s performance in straight leg raising tests (“SLR”).

36.  The SLR results are set out in the following table:-

Date	Left leg	Right leg
6 March 2015	45°	70°
10 March 2015	“slight ↓”	-
16 March 2015	40° (supine) 80° (sitting)	40° (supine) 80° (sitting)
18 March 2015	“slight ↓”
21 March 2015	Full	Full
23 March 2015	40° (with pain and subjective resistance)	40° (with pain and subjective resistance)
26 March 2015	Full	Full
30 March 2015	Full	Full
6 April 2015	80°	80°
10 April 2015	80°	80°
14 April 2015	80°	80°
15 April 2015	45°	Full
22 April 2015	45°	30°
10 May 2015	80°	80°
14 May 2015	45°	Full
19 May 2015	60°	80°
23 May 2015	60°	80°
27 May 2015	-	30° (severe pain and fear avoidance)
26 June 2015	40° (supine) 80° (sitting)	70° (supine) 80° (sitting)
5 August 2015	Limit by pain over thigh
6 August 2015	Minimal (supine) Full (sitting)	-
28 October 2015	“pain even on initiation”, “discrepancy on SLR between lying flat and sitting”	-

37.  During re-examination, the applicant did not admit that he had injured himself on another occasion after the accident in the period between March 2015 and June 2015.  If that is the truth, then it is a mystery as to why the applicant’s performance in SLR would fluctuate in such the way as demonstrated in the above table.  It can be seen that the applicant had been able to have full range of movement in the SLR on 21 March 2015, 26 March 2015 and 30 March 2015.  There is no proper reason why he would have worse performance afterwards. 

38.  What is most unusual is the applicant’s performance of SLR on 23 March 2015.  He had a normal range of motion on 21 March 2015.  However, he could only raise both his legs for 40 degrees just 2 days later, even though he was “back to normal” on 26 March 2015.  In cross-examination, he said he had forgotten about why he had performed so badly on 23 March 2015, though he confirmed that he had already tried his best. 

39.  Mr. Yip submitted that if the applicant was malingering or exaggerating, he would not have performed before various doctors in different ways, but should have persistently exaggerated his symptoms.  I do not accept this submission.  If the applicant was trying his best on every occasion when the SLR was done (as he claimed he had), his performance should have been much more consistent.  Furthermore, there is no expert evidence in support of Mr Yip’s speculation that the applicant’s condition could be fluctuating. 

40.  In the Joint Expert Report, Dr Chun opined that:-

“In this case, the fluctuation of SLR (straight leg raising) test (usually done with patient in supine position unless otherwise stated on sitting SLR) is not consistent with the MRI report that the mild narrowing of the left L4/5 neural foramen but no associated with nerve impingement. The reporting radiologist was simply contradicting himself with his impression against the above findings on the MRI report he reported. Fortunately the MRI films were reviewed by an orthopaedic surgeon on 17/6/2015 and who stated that there was no nerve root compression but only the pre-existing bulging disc and again Dr. Fu who ordered the MRI also stated that there was no neural compression. This fluctuations & discrepancy (minimal on supine, full on sitting on 6/8/2015) of the SLR test (see 6/3/2015, 10/3/2015, 21/3/2015, 6/4/2015, 14/4/2015, 22/4/2015, 27/5/2015, 6/8/2015, 28/10/2015 medical notes) on various consultations indicates inconsistency and not conforming to a specific sprain injury or a nerve root compromise but illness behavior.” (at paragraph 51)

41.  Such a view was not disputed by Dr Wong, the other expert who was instructed by the applicant.  Indeed, Dr Wong did not address the fluctuating results of SLR in the Joint Expert Report at all, nor did he express any disagreement to Dr Chun’s view (which was repeated several times in the Joint Expert Report) that the applicant’s complaints were not compatible with objective evidence, and were just suggestion of “illness behaviour”.

42.  Mr Yip for the applicant argued that the purpose of the straight leg raising test is to detect signs of his herniation but not whether the patient is experiencing pain in his leg.  With respect, this is not the point.  The question here is whether the applicant was exaggerating the extent of his injury at various consultation sessions. 

43.  The applicant was also questioned on why, according to the reports of the treating doctors, the performance of his right leg in SLR was worse than that of his left leg, and why he had severe pain in his right leg on 27 May 2015.  The applicant could not give any answer other than saying that the medical records might be wrong.  He insisted that his right leg had never had any problem.  In my view, given his aforesaid confirmation, the most probable cause of there being records showing that the applicant’s right leg could not perform SLR to the full extent from time to time is that he had exaggerated his injury.  It should be noted that there was not just a single occasion when the record shows that he had problems with his right leg, but many occasions.  The treating doctors could not be wrong in recording the test results all the time.  This is particularly so in respect of the medical record dated 27 May 2015, on which occasion the applicant claimed that he had severe pain in his right leg and had “fear avoidance”, and as a result he could only move for 30° in his right leg SLR.  Given the seriousness of his complaint, the doctor must have been extra-cautious in recording the location of the applicant’s problem.

44.  Secondly, it can be seen that the applicant had exaggerated his injury by taking a look at his complaints of pain generally.

45.  While the applicant did complain about having back pain after the accident, he indicated that there was no rest pain or 24-hour pain on 13 March 2015.  However, when he was examined by Dr Chun on 26 June 2015, he said that he had “low back pain, site: central low back to right side, dull ache, continuous and nonstop and of fluctuating intensity from grade 2 to grade 8 according to the Visual Analog Scale (VAS) [Grade 0 = no pain; Grade 10 = extreme unbearable pain], after medication, grade 2.  Pain increases to grade 8 during sleep (grade 8)…”.  As pointed out by Mr Ho, the applicant’s condition seems to have deteriorated for unknown reason, and there is no expert evidence proving that the pain would get worse 3 months after the accident. 

46.  Mr Yip submitted that the reason Dr Chun could give such a detailed description of the pain might be because he had asked detailed and specific questions during the examination, whereas doctors at public hospital might not have done or made such detailed note[2].  With respect, this is pure speculation.  Moreover, the point raised is about the severity of the pain complained of, but not whether the description was detailed or not. 

47.  In fact, it is evident that even a doctor at the public sector had queried about the applicant’s complaint of pain.  In the consultation note prepared by a Dr Wong (from the Orthopaedics and Traumatology Department of Prince of Wales Hospital) for the consultation session on 11 December 2015, it was stated, among other things: “tenderness generalised” and “clinical & MRI findings not compatible”.

48.  Thirdly, I agree with Mr Ho that the applicant’s exaggeration behaviour can also be seen from the way he complained about his knee pain specifically:-

(1)  At the examination by the orthopaedics experts on 9 October 2017, he stated that when the Member lost balance on 6 March 2015, he (the applicant) “grabbed his client to prevent him from falling down but felt electric shock feeling over mid-low back and left knee pain…”[3]. As aforesaid, it is my finding that the applicant had never complained about having knee pain until June 2015, not to mention having “electric shock feeling”. 

(2)  At the examination by the psychiatric experts on 25 October 2017, he told the experts that at the time of the accident, “after the left knee was twisted, he felt pain there”[4].  This is nothing but exaggeration.  When the applicant was asked about the above description in court, he answered that he probably did not say to the doctors that he had twisted his knee.  I do not accept that evidence. 

49.  Dr Chun also expressed the following opinion in the Joint Expert Report which was not disputed by Dr Wong:

“…the sites of tenderness at the left knee varied [21/3/2015 – tender over ITB (lateral side of knee/thigh); 17/6/2015 – tenderness over region of MCL (medial collateral ligament, medial side of knee, no pain over joint line); 5/8/2015 – pain over medial joint line; 6/8/2015 – tender over lateral joint line; 11/12/2015 – tenderness generalized, seems most at lateral joint line: tenderness shifting form (sic) medial to lateral side of the knee] from one visit to another, which is not consistent with an injury to a particular structure. Such presentation also indicates illness behaviour or assumption of sick role…”[5]

50.  While the left knee injury, if any, had been found not to be related to the accident on 6 March 2015, I am of the view that the court may still take the applicant’s complaints on his knee pain into account when assessing his credibility.

51.  Mr Yip submitted that if the applicant was really a malingerer, he would not have resumed working on 28 July 2016 which was around 3 weeks before his sick leave expired.  While I agree that the court may take this matter into account, I do not think this is adequate in tilting the balance, because the above conclusion on malingering or exaggeration was arrived at in the light of objective evidence.

52.  Neither do I think I should attach much weight to the evidence of the applicant’s wife who gave evidence in support of the applicant’s evidence, for the apparent reason that she is not an independent witness as such.

53.  Without disrespect to counsel, the above are enough to deal with the allegation of malingering and exaggeration, and as a result I do not propose to go into details of the other allegations made by the respondent.

SECTION 9 COMPENSATION

54.  It is Mr Yip’s argument that as a result of the residual symptoms, the applicant is unable to resume working as a personal trainer.  It had been submitted that in the light of the special circumstances in the present case, the court should invoke section 9(1A) of the Ordinance and apply the Hong Kong Paper Mills formula.  The circumstances relied on are as follows:-

(1)  The job of a personal trainer would involve physical exertion;

(2)  The applicant is not able to resume working as a personal trainer as a result of the injury he suffered from the accident.   In particular, he still experiences lower back pain and left knee pain and cannot perform vigorous exercise or weight bearing exercise;

(3)  He is only educated up to Form 5, and does not possess any special skill that would allow him to find a job with an income as high as a personal trainer.

55.  Hence, the first question which this court has to consider is whether the applicant is able to resume his pre-accident job as a personal trainer.

56.  It is my finding that he is able to do so.

57.  In this regard, it is Dr Chun’s opinion that the applicant is able to return to work as before without limitation or restriction despite the fact that he will have on and off recurrent mechanical low back pain. 

58.  Such an opinion is different from that of Dr Wong, who stated that:-

“As a fitness trainer, he needed to teach his students with muscle training that he himself should have good build of muscle bulk. Most importantly, dumbbell, weightlifting, bodybuilding or power lifting training demonstrated to his students or self-trained was the main component of his pre-injury work. In view of his present back condition, mild degeneration with history of sciatic attack, he is advised not to resume job that frequent heavy lifting and carrying is required.” (at paragraph 76 of the Joint Expert Report)

59.  The applicant explained in his witness statement as to why he would not be able to return to his pre-accident job in paragraph 28(vii) thereof as follows:-

“工作方面

健身教練的工作需要高度集中，稍有不慎就可能使自己和學員受傷，但本人因殘餘疼痛及夜間睡眠質素不佳，經常感到精神不振，而且集中力較以前差，本人覺得現在自己的精神狀態並不符合健身教練的工作要求”

60.  When the applicant was asked whether he could do his pre-accident job again during re-examination, he answered “No”, and explained that:-

“我認為我自己唔得

我唔敢，自己有陰影，即係我自己都覺得好小嘅事情咁樣都…廿零歲三十歲整親都要唞成年幾，如果再整親就…唔敢諗呀真係，即係腰同腳唔會再痛我都唔敢再做”

61.  It can be seen that according to the applicant’s own evidence, there are two reasons why he said he could not return to his pre-accident job.  However, they do not relate to his ability to handle the physical demand of the job of personal trainer.  Neither did the applicant say of his own accord that his pre-accident job required him to have “good build of muscle bulk”[6]. In other words, the bases relied on by Dr Wong to opine that the applicant cannot resume his pre-accident job actually do not exist at all as a matter of fact.

62.  Furthermore, while it is understandable that the job of personal trainer may require him to demonstrate how to use certain equipment to his students, as accepted by Mr Yip, there is no evidence that it requires frequent heavy lifting.  After all, he is not the one who is doing the training.  Hence, the conclusion of Dr Wong was again arrived at without any factual basis.

63.  It should also be noted that according to Dr Wong’s opinion, the applicant is able to do all kinds of sports except weight lifting which in his view is “not beneficial to his spine condition”.

64.  I now come back to the reasons relied on by the applicant himself.

65.  The first reason given by the applicant was that he could not concentrate.  However, this is contradicted by the Joint Psychiatric Report dated 10 May 2018, in which it was stated that “He had no concentration problem”[7].

66.  According to the Joint Psychiatric Report, the examination and discussion session with the psychiatric experts on 25 October 2017 had taken 2 hours 15 minutes to complete (from 2:55pm to 5:10pm).  Even though the session lasted for such a long time, the experts opined that “he had adequate attention and concentration”[8]. Dr Yu Wai Tak further opined that the applicant did not have concentration or memory problems while giving the doctors various accounts. 

67.  When commenting specifically on whether the applicant would be able to return to his pre-accident job, the psychiatric experts opined as follows:-

“Dr. Yu

68. (a) Mr Huen has had very mild mental symptoms (paragraph 48b), which would not have stopped him from returning to the pre-accident duties at any time after the alleged accident.

      (b) (i) Indeed, he has returned to work as early as September 2016 (paragraphs 30f.x & 31a).

  (ii) Thus, obstacles to return to the pre-accident duties, if any, are physical ones only.

Dr. Law

69. I believe the major limiting factor of the work capacity in Mr. Huen is the physical impairment.  Psychiatrically he is fit to resume his previous job as a trainer.”

68.  On the basis of the above, the first reason given by the applicant cannot stand.

69.  The second reason given by the applicant is that he was subjectively worried that it would take a longer time for him to recover if he gets hurt again in future.  Even assuming that he is truthful about this worry, this does not mean that he cannot as a matter of ability resume his pre-accident job. 

70.  As can be seen from the psychiatrists’ opinion quoted above, they have the consensus that the applicant is able to return to his pre-accident job from the psychiatric point of view.

71.  The applicant has not placed before the court any psychological report in support of his present claim.

72.  The second reason is therefore rejected as inadequate in justifying his claim that he cannot return to his pre-accident job.

73.  By reasons of the above, I do not agree that we should adopt the Hong Kong Paper Mills formula as suggested by the applicant. 

74.  With the above conclusion, I now turn to consider the parties’ section 18 appeals against the assessment of the Employees’ Compensation (Ordinary Assessment) Board.

75.  According to the Form 7 dated 10 May 2017, the applicant was assessed to suffer from 12% permanent loss of earning capacity (1% for back, 1% for knee and 10% for psychiatric impairment).  Both the applicant and the respondent have lodged an appeal against the assessment.

76.  As aforesaid, it was my finding that the applicant’s left knee injury, if any, was not caused by the accident on 6 March 2015.  This court should therefore only consider the applicant’s permanent loss of earning capacity caused by his back problem and his psychiatric problem.

Back problem

77.  The relevant parts of the Joint Expert Report are as follows:-

“Assessment on Whole Person Impairment (WPI) and Loss of Earning Capacity (LOEC)

Dr. Wong

79. Upon your request for the assessment of WPI caused by the alleged accident, the 6^th Edition of AMA’s Guides to the Evaluation of Permanent Impairment is used as reference. Page 570 table 17-4 Lumber Spine Regional Grid: Spine Impairments, Mr Huen’s back condition falls into Class 1, intervertebral disk herniation with documented resolved radiculopathy at clinically appropriate level, Dr. Wong opines 6% WPI. In consideration of his pre-existed congenital condition, Dr. Wong apportions 80% for the alleged accident. Therefore, Dr. Wong recommended 5% whole person impairment for the alleged accident.

80. In view of the nature of his occupation, the LOEC recommendation would be 5%.

81. Dr. Chun: With reference to the 6^th edition of the AMA Guides, he is a patient with continue complaint, history of injury, but without correlating findings, he belongs to class 0 bears no impairment rating for the low back & the left knee.  For the possibility of triggering the low back & knee pain pre-existing degenerative changes symptoms, I assess 1% loss of earning capacity.”

78.  In the case of the applicant, it cannot be disputed that there was no disc herniation and he had no definite radiculopathy symptom.  I therefore hold the view that the applicant’s condition should not be categorised as falling within Class 1 as suggested by Dr Wong.

79.  Mr Yip criticised Dr Chun’s assessment by saying that he had failed to refer to the AMA Guide.  As can be seen from the excerpts of the Joint Expert Report quoted above, such a criticism is misconceived, for Dr Chun did refer to the Guide.

80.  I agree with Dr Chun’s assessment that the injury is minor in nature.  As a matter of fact, as mentioned above, Dr Wong also opined that the applicant is able to do all kinds of sports.  Dr Wong only singled-out weight lifting, for he was of the view that it would not be beneficial to his spine condition.  In these circumstances, I take the view that the permanent loss of earning capacity should be minimal.  Having considered all the circumstances, I consider that Dr Chun’s assessment should be adopted, and I find that the applicant’s permanent loss of earning capacity in relation to his back problem is 1%.

Psychiatric condition

81.  In the Joint Psychiatric Report, Dr Yu opined that the applicant had overstated his depressed mood and irritability and he had provided exaggerated descriptions of mental symptoms with the intention of building up a case of severe mental illness.  He also stated that as the severity of the physical symptoms had been exaggerated, the applicant would not have suffered mental distress as a consequence.    By reference to the Sixth Edition (2008) of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Dr Yu took the view that the applicant has no impairment which affects current or future earning capacity due to mental symptoms at all.  The percentage of loss was therefore assessed at 0%.

82.  On the other hand, Dr Law took the view that the applicant suffered from adjustment disorder which was wholly caused by the accident on 6 March 2015.  Having said that, he thought the mental impairment would be mild.  He estimated the applicant’s loss of earning capacity due to the adjustment order to be 3%.

83.  As pointed out by Mr Ho, it seems that the psychiatrists had come to different conclusions because Dr Law’s assessment was made on the basis that the complaints of the applicant were genuine, whereas Dr Yu had given his view on the premise that the applicant was exaggerating his problems.  This analysis was not disputed by Mr Yip.  On my part, I consider that Dr Yu’s premise is more reliable, because, as I have found above, the applicant had exaggerated the extent of his injury.

84.  The applicant’s loss of earning capacity arising out of his psychiatric condition is therefore assessed at 0%.

Conclusion on permanent loss of earning capacity

85.  I therefore allow the section 18 appeal brought by the respondent, and dismiss the appeal of the applicant.  The total permanent loss of earning capacity is assessed at 1%.

Calculation of section 9 compensation

86.  The applicant was 31 years old at the time of the accident (6 March 2015).  The appropriate multiplier is therefore 96.

87.  It is not disputed by the parties that the monthly earnings to be adopted for the calculation of section 9 compensation should be the amount provided by the Sixth Schedule of the Ordinance which was in force as at the time of the accident, which was $26,070.

88.  Compensation under section 9 of the Ordinance is therefore assessed at $25,027.20 ($26,070.00 x 96 x 1%).

SECTION 10 COMPENSATION

89.  It is undisputed that the applicant had been given sick leave for a total of 533 days from 6 March 2015 to 19 August 2016 and that it had been certified in the Form 7 dated 10 May 2017 that those days of sick leave were necessary as a result of the applicant’s injury.  Be that as it may, Mr Yip informed the court that the applicant would only claim for a total of 510 days in respect of compensation payable under section 10 of the Ordinance, because the applicant had started working again on 28 July 2016.

90.  However, Mr Ho contended that only 5.5 months of sick leave should be allowed.

91.  In Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, it was held by Lam VP that:-

“In the context of employee compensation claims, the weight to be attached to sick leave certificate is governed by s 10(2) of the Employees’ Compensation Ordinance. The judge did not address this section in her judgment of 15 September 2014. Though she referred to it in her subsequent decision on refusal of leave to appeal, she did not refer to relevant court of appeal authorities on the effect of this section: Yu Tat Kam v Chu Tung Shing [2009] 6 HKC 411 and Kan Wai Ming v Hong Kong Airport Services Ltd [2011] 3 HKC 582. In a nutshell, the correct legal position is this: s 10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption.” (at paragraph 28)

92.  In deciding whether the respondent has discharged its burden in rebutting the presumption under section 10(2) of the Ordinance, I bear in mind the importance of giving due weight to the decision of the treating doctors who had decided to grant sick leave to the applicant because they had the advantages of seeing and assessing the applicant at the material time.  It is also noted that the applicant had not “shopped around” for sick leave certificates, and all the sick leave had been granted by the Orthopaedics and Traumatology Department of Prince of Wales Hospital.

93.  Despite the above matters, I still hold the view that the respondent has successfully rebutted the presumption under section 10(2) of the Ordinance, but my ruling is that the applicant should be granted sick leave up to 11 September 2015 rather than mid-August 2015 as advocated by Mr Ho.

94.  In coming to the above conclusion, I have taken the following matters into account:-

(1)  As pain is subjective, treating doctors could not do much to verify the applicant’s complaints.

(2)  As a result of the accident, the applicant had been given physiotherapy treatment for 6 months from 13 March 2015 up to 11 September 2015 for his back pain.  According to the Physiotherapy Report dated 7 January 2016, the treatment was stopped after the last session on 11 September 2015 as the progress was static.  Mr Yip’s speculation that such termination of treatment might be due to the fact that “there was no time” is not accepted as it is simply not supported by any evidence.

(3)  According to the opinion of Dr Chun, “the first course of PT from 13/3/2015 for 6 months till 11/9/2015 was very adequate for the minor sprains and in fact much prolonged as one would expect from patients without background of compensation claim.  Further treatment is not needed nor effective in dealing with presentation of illness behaviour or assumption of sick role.  He was referred to MAB on 5/8/2015 by PWH and on 6/8/2015 Dr. Fu was also of the finding & opinion that his condition had reached maximal medical improvement.  Subsequent sick leave and treatment should not be required”.[9] I accept that the applicant had exaggerated the extent of his injury and he did not require further treatment at all after 11 September 2015.  Having said that, I should make it clear that I do not agree that no sick leave should be granted once the applicant’s condition “had reached maximal medical improvement” per se. 

(4)  It should be noted that according to the Physiotherapy Report dated 7 January 2016, the applicant indicated that “after about 6 months of treatment, his back pain improved with a subjective improvement of 20%”.  Such a small extent of improvement was in fact contradicted by the applicant’s own evidence.  It may be recalled that when he was re-examined by his counsel on why he only mentioned about his left knee pain in June 2015, he said it was because despite the Assurance, he found that his leg pain remained even though he felt less pain in his back.  He said that he therefore felt that there must be something wrong (“唔對路”), and as a result he complained about his left knee pain to his doctor again.  In my view, according to this logic, the applicant must have had significant improvement in his back pain in June 2015, otherwise he would not have felt “唔對路” as alleged.  Put it in another way, if his back pain had only been eased for 20% as alleged, I do not believe the applicant would start to wonder whether the doctors were right when they gave him the Assurance.

(5)  Mr Yip relied on the discharge summary dated 9 September 2015 and submitted that it is evident that the applicant was still complaining of back pain at that time.  However, it was noted by the treating doctor therein that “pain over whole lumber spine which is quite duffuse (sic) and there is no neurological deficits on physical examination of lower limb”.  Such a note is remarkable.  According to Dr Chun, “objective physical examination showed no significant abnormal findings at the low back…the widespread tenderness at the low back is not consistent with the initial documentation”[10]. In my view, this shows that the subjective complaint of pain made by the applicant on 9 September 2015 is unreliable and should not be relied on.

(6)  Although the applicant had been receiving occupational treatment from 20 July 2015 to 1 December 2015, I do not accept that the court should approve sick leave for the entire period of such treatment, because the applicant should have reached maximal medical improvement by around August 2015 and no further treatment should be required. It was remarked by the treating doctor on 5 August 2015 in the discharge summary “refer MAB as MMI approaching”.  It was also opined by Dr Fu upon examination on 6 August 2015 that “condition reached Maximum Medical Improvement”.

(7)  The applicant’s counsel also relied on the applicant’s 2^nd physiotherapy in the period between 26 January 2016 and 12 October 2016 to justify the long sick leave.  However, according to the Physiotherapy Report dated 19 November 2019, it was stated that the applicant “was referred again to our department for physiotherapy by the Department of Orthopaedics and Traumatology, Prince of Wales Hospital on 15 December 2015 with diagnosis of left knee pain, and subsequently on 18 May 2016 for back physiotherapy”.  In other words, the applicant had had physiotherapy treatment for around 4 months from January 2016 to May 2016 exclusively for his knee pain only, which this court has found not to be related to the accident.  As for the treatment starting from May 2016, I do not accept that it was given on the basis of genuine complaint of back pain on the part of the applicant by reason of my findings of malingering. 

(8)  While Dr Wong agreed that the treatment given from July 2015 to August 2016 was standard and appropriate, since he had not dealt with the question of malingering at all, I prefer Dr Chun’s opinion instead.

95.  As aforesaid, the respondent suggested that sick leave for only 5.5 months should be given.  Since the 1^st course of physiotherapy treatment was given up to 11 September 2015, I am prepared to accept that sick leave should be approved up to that date as well.  In other words, I shall allow sick leave of 190 days.

96.  Parties agreed that the monthly earnings to be adopted for the calculation of compensation under section 10 of the Ordinance should be taken to be $69,415.50.  The amount of section 10 compensation is therefore assessed at $351,705.20 ($69,415.50 x 4/5 x 190/30).

SECTION 10A COMPENSATION

97.  Mr Ho for the respondent argued that medical expenses beyond the reasonable sick leave period should not be awarded.  Mr Yip drew my attention to the case of Pak Sai Ming v J V Fitness Limited (DCEC 494/2014, unreported, 17 June 2016) in which it was held that:-

“72. It is submitted on the respondent’s behalf that there will be inconsistency between s 10 and s 10A if the applicant is entitled to medical expenses outside the sick leave period as found by the court to be necessary. It is further submitted that the applicant’s claim of medical expenses under s 10A should be restricted to those incurred during the sick leave period which the court finds to be necessary under s 10.

73.  With due respect, s 10A only requires that medical expenses are incurred for the medical treatment in respect of personal injury caused to an employee by the accident in question.  Whilst there may be situation such that the need for further medical treatment would cease after sick leave, there is no legal requirement that medical expenses had to be incurred within the period of absence found to be necessary by the court under s10.  On the other hand, one can readily think of a situation where an employee may reasonably incur medical expenses even though he had not taken any sick leave.” 

98.  I agree that there should not be a hard and fast rule that an employee’s claim of medical expenses under section 10A of the Ordinance should be restricted to those incurred during the sick leave period which the court finds to be necessary under section 10.  In my view, so long as the employee can satisfy the court that the medical expenses incurred are necessary and reasonable for medical treatment in respect of the injury which is caused to the employee by accident arising out of and in the course of his employment, the employer should be liable to pay such expenses, even though such medical expenses are incurred after the expiry of sick leave.

99.  In the present case, it is this court’s finding that the applicant had exaggerated his extent of injury.  In my view, as far as his injury caused by the accident is concerned, any further medical expenses incurred after 11 September 2015 were unnecessary and unreasonable.  I will therefore only make an award under section 10A for medical expenses incurred on or before 11 September 2015. 

100.  Taking into account the maximum amount of medical expenses per day which may be claimed pursuant to the Third Schedule of the Ordinance (in effect as at the date of the accident, i.e. $200 per day), section 10A compensation is assessed at$4,085.00.

TOTAL AMOUNT OF COMPENSATION PAYABLE

101.  It is undisputed that the applicant had received advance payment in the total sum of $276,794.84.

102.  The total amount of compensation payable is therefore calculated as follows:

Section 9	$25,027.20
Section 10	$351,705.20
Section 10A	$4,085.00
		$380,817.40
Less advance payment		$276,794.84
		$104,022.56

103.  Interest should be awarded at half of the judgment rate from the date of the accident (6 March 2015) to the date of this judgment, and at judgment rate thereafter until full payment.

COSTS

104.  The respondent is largely successful in resisting the applicant’s claim.  I therefore make a cost order nisi that the applicant shall bear the costs of the respondent (including all costs reserved, if any), with certificate for counsel, to be taxed if not agreed.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.