LEE KA LAI ERICA v. BANK OF CHINA GROUP INSURANCE LTD

DCEC 1175/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEE COMPENSATION CASE NO 1175 OF 2013

--------------------

--------------------

------------------

DECISION

-------------------

1. This is an application by the applicant for leave to proceed with single examination by her psychiatrist, Dr Wong Chung Kwong and to adduce single expert report from Dr Wong at the trial of this action.

2. Mr Ashok K Sakhrani, counsel for the applicant, submitted that it is necessary to review the applicant’s orthopedic condition to understand her psychiatric condition.

3. The applicant was formerly employed by the respondent as a deputy manager and her duties were chiefly clerical work with some manual delivery of heavy bulky files.  Additionally she spends much time on her computer.  On 20.7.2010, after carrying 4-5 bulky files up one floor and down again after papers were signed, she felt immediate right elbow pain.  This increased in intensity and developed into right upper limb weakness after pulling repeatedly on her mouse which had a short cable that tended to get stuck.

4. The applicant attended DOT of PWH on 31.8.2010 and it was noted that clinically there were features of right golfer’s elbow initiated after common flexor group sprain injury and scapholunate ligament sprain.  She had numbness over medical forearm and little finger.  She attended physiotherapy on 9.9.2010 when she complained of right wrist and elbow discomfort.  She wore a wrist brace and elbow sprint.  ROM right wrist and elbow were full without pain and there was mild weakness in all directions of movement of the wrist.  After three months of treatment there was improvement of right wrist power with similar grip power at both hands and there was mild tenderness at medical epicondyle.

5. She continued her physiotherapy at PWH in December 2010, where she had 17 sessions.  She reported right medical and lateral elbow pain on gripping and right 4^th and 5^th finger numbness.  There was tenderness and positive Tinel’s sign at the right elbow, yet full right wrist flexor and extensor.  On the last session on 28.5.2011, she reported 70% improvement in her condition, but there was decreased gripping tolerance of right hand.  There was decreased tenderness at right elbow.

6. She resumed work in October 2010 and full duty in November 2010.  But she then resigned because she had difficulty typing the whole day, every day, work pressure and psychiatric disturbance.  Between December 2010 and June 2011 she took another job doing mainly clerical and analysis work with less typing.  Eventually, her duties became 50% clerical work and 50% use of computer with frequent typing and files transfer.

7. In the mean time, on 21.7.2012 she had a clinical neurophysiology study which suggested mild right cubital tunnel syndrome, which in fact confirmed clinical suspicion of this in May 2011.  This is nerve entrapment neuropathy of the ulnar nerve around the elbow region.  As a result surgery was suggested to her, which she has still not agreed to.  Symptoms include pain, numbness or weakness over territory supplied by the ulnar nerve.

8. MAB reviewed at 4% LEC on 5.5.2013.

9. She had physiotherapy between 10.8.2013 and 24.9.2013, when she reported improvement of right elbow pain but pain with exertion.

10. She underwent a joint orthopaedic examination in November 2013.  She complained, inter alia, of dull ache over her right elbow and right dorsal foreman with intermittent attack of pain, tiredness over right elbow and right foreman after typing, and weakness of right upper limb.  On examination it was noted there was tenderness from left medical epicondyle to wrist, Tinsel’s sign was positive and there was sensation reduction over left forearm.

11. The orthopaedic experts agreed the accident triggered her symptoms, Dr Chaing explained that most of the cubital tunnel entrapment developed from chronic use and repeated flexion and extension.  Dr Chaing opined because the condition was mild and arose from a single episode of strenuous use; it suggested a pre-existing asymptomatic element.  The experts agreed that because of the chronic condition surgery is indicated and will probably relief her condition.  They agreed she could resume her pre-accident work but both agreed there would be reduced capacity and efficiency requiring adaption and modification of work activities.

12. The experts also noted episodes of emotional breakdown during the interview.

13. The applicant saw Dr Ronald Y L Chen, specialist in psychiatry, on 24.12.2013.  She complaint of being sad and occasional crying after the incident, having a fleeting death wish, anger episodes, avoiding contact and poor sleep.  She also reported her supervisor did not support her and held a negative attitude towards her injury.  She resigned for a new working environment.  After changing jobs she felt better and her symptoms were less; she was less distressed.  She could work normally and take care of her child.  Her sleep and appetite was normal, although her relationship with her husband was worse than before.

14. Dr Chen diagnosed an adjustment disorder with depressed mood.  He recommended psychological intervention.

15. The applicant then consulted Dr Michelle Chan, Clinical Psychologist, from January 2014 onwards.  The applicant set out her post-accident psychiatric conditions, including over the years, she has been experiencing recurrent thoughts… distress…; stressed by the litigation and suspected she had been put under surveillance.  This caused anger and apprehension.  Dr Chan diagnosed PTSD symptoms, anxiety and depression.  A different diagnosis from Dr Chen.  Dr Chan opined that because of the chronicity of her symptoms and ongoing legal proceedings, she would continue to experience mood fluctuations.

16. Mr Sakhrani submitted that Dr Chan’s diagnosis was significantly different and more serious than Dr Chen’s.  Having regard to the established psychiatric condition, the difference in the diagnosis so far, the difference between a treating and forensic medical report, possible issues of causation due to the long lapse of time between the accident and the first psychiatric consultation, the true extent of her previous and present psychiatric disability, the treatment regime and costs, and the likely duration of her symptoms, the court is invited to allow a forensic psychiatric report to assist the judge at the trial of this matter.

17. Ms Lau Nga Chun, for the respondent, submitted that it is neither reasonable, necessary nor of probative value to obtain psychiatric expert evidence for this case.

18. Ms Lau’s opposition to this application is mainly based on two grounds: First, a high likelihood that the psychiatric conditions are a recent creation of the applicant and/or not related to the accident.

19. Ms Lau argued that the applicant alleged she developed psychiatric symptoms after the accident and in light of her complaints she was referred by her treating doctors at the Orthopaedic Department of Prince of Wales Hospital to seek psychiatric treatment.

20. Yet no referral letter and/or medical notes and records from Prince of Wales Hospital had been disclosed by the applicant in support of this allegation.

21. In fact, the applicant only consulted a psychiatrist, Dr Chen on 24.12.2013, more than 3 years and 5 months after the accident on 20.7.2010.

22. Dr Chen’s diagnosis was merely based on the applicant’s subjective complaints without any objective documentary proof.

23. Dr Chiang Si Chung Arthur opined in the Joint Orthopaedic Report that taking into consideration of the applicant’s appropriate and reasonable presentation in the joint medical examination, there is no obvious need for psychiatric assessment.

24. Although Dr Wong See Hoi opined in the Joint Orthopaedic Report that assessment on the applicant’s psychiatric injuries should be left to the affiliated psychiatric specialist to justify her present application for leave to adduce expert evidence from a psychiatrist.  Dr Wong was merely responding to a query by the parties’ solicitors in the joint instructions letter for the joint medical examination by saying psychiatric assessment is outside the scope of expertise of the orthopaedists and not that psychiatric assessment is necessary.

25. Second, even if the applicant’s psychiatric conditions were not a recent creation and/or related to the accident, Dr Chen and Dr Chan are in a position to inform the court of the applicant’s mental state and whether her mental state was caused by the accident.  Further psychiatric expert evidence would not add anything further to the available reports that can be produced at trial.

26. Finally, Ms Lau argued the genuineness of the applicant’s psychiatric complaints is ultimately a matter for the trial judge hearing the case.  Based on the available evidence, there is no prima facie evidence that her psychiatric condition, if any, is affecting the applicant’s working capacity.

27. Mr Sakhrani’s reply to Ms Lau’s first ground of opposition is to look at the applicant’s orthopedic condition.  The applicant had freely admitted improvements to her conditions after treatment.  She resumed work in October 2010 and full duty in November 2010.  Even after she resigned due to work pressure and psychiatric disturbance, she took another job doing mainly clerical and analysis work.

28. These clearly shown that the applicant was not a malingerer.  In any event, it is not uncommon in the local culture to refuse or delay psychiatric treatment for fear of being labeled a “psycho”.

29. As to the second ground of opposition, Mr Sakhrani replied was the very fact that because the genuineness of the applicant’s psychiatric complaints and the causation of these complaints are ultimately matters for the trial judge hearing the case, he should not be deprived of psychiatric expert’s assistance in determining these issues.

30. Mr Sakhrani also stated a psychiatric expert can assist the trial judge in ways that treating doctors like Dr Chen and Dr Chan cannot.  These include an independent assessment of the proper course of future treatment, an estimate on the reasonable costs of these treatments and most critically the percentage reduction of future loss of earning capacity, if any, due to the applicant’s psychiatric illnesses.

31. I agree with Mr Sakhrani’s submissions.

32. In Fung Chun Man v Hospital Authority & anor. HCPI 1113/2006, Bharwaney J. gave the following guidance on the approach in considering whether psychiatric expert evidence  is required:-

“23. There appears to be a misconception that the courts will not readily grant leave for evidence from a psychiatrist or a psychologist to be adduced. The law of negligence does not provide a remedy for distress which does not amount to a recognised psychiatric illness, unless the distress, anxiety or fear is accompanied by a physical injury. The courts award damages where a party has suffered a recognisable psychiatric illness over and above emotional distress and disquiet. The court will almost invariably require expert evidence to determine whether or not this is the case. Even where it is not disputed that the plaintiff suffers from psychiatric illness, there may be a dispute as to causation: was the psychiatric illness caused or contributed to by the tort complained of. A trial judge who has to determine this issue of causation may need assistance from an expert in this field.

24.   Indeed, in most cases, the need for psychiatric treatment or psychological counselling is apparent long before the commencement of proceedings.  Inappropriate conduct or speech is noted by family members or recorded on the hospital records.  Prolonged sadness, excessive anxiety, unusual irritability and temper tantrums are all indicia of possible psychiatric illness.  These are often recognised by treating doctors and nurses and the patient referred to a psychiatric unit, whether in-patient or out-patient, for assessment and treatment.  Even if the hospital records or treating doctors and nurses make no mention of a plaintiff’s psychiatric illness or possible psychiatric illness, orthopaedic or neurological experts examining a plaintiff in order to prepare expert medical reports on his physical condition will often recognise the presence of a psychological or psychiatric component and recommend that reports be obtained from relevant experts in that field.  Each case must depend on its own facts and a mere recommendation without supporting reasons by an expert from another field may be insufficient, but where the need for psychiatric or psychological evidence is clear and obvious, there can hardly be any realistic challenge to a request for relevant expert examination and reporting.”

33. Here, Ms Lau has already stated the respondent will contest both the applicant’s allegation that she suffered a recognizable psychiatric illness and the causation of the same.  Clearly it is preferable for the trial judge to have assistance from expert in this field.

34. Also, we now have the opinion from Dr Chen and Dr Chan that the applicant is suffering from adjustment disorder with depressed mood and PTSD symptoms, anxiety and depression, respectively, both diagnoses are recognizable psychiatric illnesses.

35. The need for psychiatric evidence is clear and obvious, relevant expert examination and reporting is reasonable, necessary and of probative value.

36. Finally, in Fung Chun Man, even though the expert evidence was reasonably required to enable his Lordship to resolve the issues in dispute and the costs was proportionate to the sum at stake, having balanced all of the competing considerations, Bharwaney J. ultimately disallowed the application because it was made at the eve of trial and granting such an application would have derailed the trial dates.

37. In this matter, the application was made reasonably quickly after Dr Chan’s report dated 29.4.2014 and more importantly, we are still early in the litigation process, trial dates have not yet been set.  The balance is in favour of granting the application.

38. Orders:-

(1)    The applicant’s application to adduce single expert report from Dr Wong at the trial of this action is allowed.

(2)    Costs of this application be to the applicant, with certificate for counsel, to be taxed if not agreed.

(3)    Parties’ are to write to the court to seek further directions for the conduct of this matter within 21 days of handing down of this Decision.