HAN SUK LAN v. HKS PARKING LTD.

HEADNOTE

Employees' Compensation Psychiatric injury whether permanent total or partial incapacity Compensation for temporary incapacity Granted sick leave for 3 months and 17 days Unable to work since resignation about 1 1/2 months after incident Duration of temporary incapacity.

DCEC904/97

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

EMPLOYEES' COMPENSATION CASE NO. 904 OF 1997

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JUDGMENT

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1. This is an action brought under the Employee's Compensation Ordinance Cap. 282. The main issue turns on whether the Applicant is suffering from permanent total incapacity or permanent partial incapacity. Difficulty arises from the fact that the permanent incapacity resulted from a mental rather than physical injury.

2. The basic facts are not in dispute. The Applicant was employed by the Respondent as a car park cashier. At the time of the incident in question, she was working at the car park of Harbour View Garden in Sands Street, Western. On 27 April 1996 at about 8:10 p.m. when she was working alone inside the cashier booth with the door closed, there was a loud explosion inside the booth which she believed was caused by a firecracker, as the booth was immediately filled with smoke and fragments of firecracker were found.

3. This explosion was a terrible shock to her. She was badly shaken and paralyzed momentarily. Noises were ringing in her mind and an electrical current seemed to be going through her brain. She also felt that her eye-balls were filling with blood, her chest bones were expanding and a fire ball was inside her abdomen.

4. This incident was apparently a prank which she suspected was played by her colleague Ah Man on her. He had done that before. On 17 October 1995, while at work Ah Man suddenly shouted loudly at her back to frighten her. She was instantly stupefied and unable to stand steadily. An air-current seemed to go through her body which was numb all over. Subsequently she became nervous and weak and had headache and dizziness. Fortunately she recovered in 2 months' time but this time she could not.

5. In order to get a better perspective on these two incidents and the changes that were caused on the Applicant, I must here refer to her personal background and her employment. The Applicant, born in China on 26 October 1945, is now 53. A native of Tianjin, she speaks Mandarin but can understand Cantonese in Hong Kong. With primary 6 education, she had been a factory worker, teacher, policewoman and a singer. She considered herself a hard worker who was generally respected and commanded by superiors and co-workers alike. Many people liked her singing.

6. In 1980, she came to Hong Kong and in October 1982, took up employment with the Respondent as car park cashier. As in China, she was very proud of her performance and singing, and considered herself very popular among her colleagues. However in 1995, there was a change in management and staff were gradually replaced and reduced. Irregular practices also occurred which she found hard to tolerate. Eventually she began to feel she was being ostracized, victimized and became a subject of ridicule. On 23 April 1996 she received a warning letter on which she disputed with the manager.

7. She was a very conscientious worker. From October 1982 to 27 April 1996, over 13 years, she had never taken any sick leave. Even on 27 April 1996, despite her terrible experience from the explosion, she insisted on doing her duties. She went to see the doctor only on 29 April 1996 and was required thereafter to follow up frequently. There were constant clashes between duties and sick leaves and the Respondent was rather unsympathetic to her. Having found such situation unbearable, she resigned on 16 June 1996.

8. As a result of the explosion, she becomes depressed and anxious.

There are constant flashbacks of the incident and she becomes very sensitive to sound. She could not sleep well and always has bad dreams. Her appetite is bad. She also has multiple somatic symptoms. There are numbness of head, dizziness, blurred vision, bigger right eye, tinnitus, ears pain, abdominal discomfort and constipation. She feels her skull is open, right temple and tongue are swollen, nose dislocated, the jaws and the ligaments over her neck are loosened and her right face is bigger than her left face. She is very upset that she cannot sing now and has difficulty in speaking.

9. Dr Ronald Chen, who began to treat the Applicant at Western Psychiatric Centre from 10 September 1996 up to now, diagnosed it as post-traumatic stress disorder and in his two medical reports dated 21 January 1998 and 24 February 1999 considered that the Applicant is suffering from 20% permanent disability.

10. Dr. S.Y. Chung, upon instructions from the Director of Legal Aid to prepare a psychiatric report on the Applicant, examined her on 9 March 1998. In his report dated 16 March 1998, Dr. Chung concluded "I estimate the loss of earning capacity, due to Post-traumatic Stress Disorder, at 70% and the degree of permanent impairment to the whole person at 20%." However having seen the demeanour of the Applicant in the witness box at trial, he considers that the Applicant is unlikely to be unable to work and that she is suffering from permanent total incapacity.

11. Dr. Benjamin Lai was instructed by the Respondent to prepare a psychiatric report on the Applicant and examined her on 31 March 1999. In his report dated 19 April 1999, he was of the opinion that the Applicant is suffering from hypochondriasis and narcissistic personality trait. He did not find sufficient symptoms to support a diagnosis of posttraumatic stress disorder. Hypochondriasis is the preoccupation with fear of having, or the idea that one has, a serious disease based on the person's misinterpretation of bodily symptoms or bodily functions. Narcissistic Personality is a pattern of grandiosity, need for admiration, and lack of empathy. It is only an imperfect personality which can be left out for consideration in this case. However at the trial, Dr. Lai is prepared to concede that some symptoms of posttraumatic stress disorder may persist and they cause 25% loss of earning capacity.

12. Since 16 June 1996 up to the present the Applicant has not worked again. She feels she is useless and unable to work owing to these symptoms. Having read all the medical reports, heard the evidence of the Applicant and seen her demeanour, I have no doubt that she is consistent throughout these proceedings. All three doctors, especially Dr. Chen who has treated her for over two years, do not find any clue or have ever suggested that the Applicant is feigning her symptoms. I agree with Dr. Chung's opinion of the Applicant that she is a primitive, candid and stubborn woman. She has kept all her medical appointments in these 3 years. I believe she could not have such intelligent faculty to deceive three very experienced psychiatrists at the same time and for so long.

13. Apart from the exact medical cause and the extent of the permanent incapacity that results, all three psychiatrists agree that the Applicant is suffering from permanent incapacity resulted from the mental injury caused by the explosion on 27 April 1996. There are no disputes on any of the matters that have been set out previously. It is also agreed that the Applicant could not work in her present state of physical and mental health and that she genuinely believes she could not work. She had been a very conscientious worker for the better part of her life up to 16 June 1996. She seems to be very proud of her performance and upset at not being able to work again.

14. At the trial, much time is spent on finding out the exact psychiatric cause that troubles the Applicant. Dr. Chen and Dr. Chung, on one hand, are of the same opinion that the Applicant is suffering from posttraumatic stress disorder which has a low rate of recovery. The Applicant, having been treated for 3 years, shows little improvement and is unlikely to recover. Dr. Lai, on the other hand, finds that the Applicant is only suffering from hypochondriasis which is treatable. However , as mentioned earlier, he is prepared to concede that the Applicant has certain degree of permanent incapacity resulting from some persistent symptoms of posttraumatic stress disorder. To this extent, the issue of permanent incapacity can be resolved but I am inclined to find that the Applicant is suffering from the posttraumatic stress disorder.

15. The remaining issue of this debate is whether it is a permanent total incapacity or a permanent partial incapacity. The Applicant alleges that she is now suffering from permanent total incapacity. As a result of the incident and being troubled by these symptoms, she could not bring herself to work at all. She is supported by Dr. Chung who finds her present incapacity genuine and permanent. Dr. Chen who has treated the Applicant for 3 years disagrees. He believes, given some rehabilitation programmes, the Applicant could work again. However, he could not satisfactorily explain why, having been treated for 3 years by him, she still could not work.

16. On the other hand Dr. Lai, who is called by the Respondent, is more confident and forthright on the prognosis. His optimism is probably based on certain findings. First, he finds the avoidance of stimuli, one of the significant symptoms of posttraumatic stress disorder, has apparently remitted. On the day he examined the Applicant he found she could sit out a noisy environment without any problems. Also after the explosion, she could go back to car park to continue to work for two months. Secondly, he observes that the Applicant still possesses good memory, attention and concentration which are vital factors for working ability. Thirdly, he finds the Applicant can enjoy normal social life. He also explains why the Applicant cannot work now. He is of the opinion that the Applicant has the pre-disposition of hypochondriasis and narcissistic personality traits before the incident which existed as imperfect personalities. The explosion has brought them on as full-blown mental disorders. The death of her husband who was her only relative in Hong Kong in December 1997 aggravated her condition further. The pressure and grievances she felt in her work before the explosion has made her work a convenient focus to attach her mental weakness. Dr Lai believes, given some appropriate rehabilitation programmes, the Applicant could work again but his opinion goes no further than this suggestion.

17. Despite varied diagnoses and prognoses, all three psychiatrists agree that the Applicant now could not work. On the question whether she could ever work again, Dr Chung holds a negative view while Dr Chen and Dr Lai are in agreement that she could but there must be some treatments in the way of rehabilitation and motivation. Given the three years for recovery, I find there is evidence to conclude that the Applicant is suffering from permanent total incapacity.

18. I shall bear these expert opinions in mind when I decide on the degree of incapacity. I must also apply these opinions to the woman now before the court. In the witness box, she very often spoke with her eyes closed and in her own way. Sometimes she was emotional and tearful. I agree with Dr Lai observations that she still has good memory, attention and concentration but apparently mostly in relation to the terrible and unhappy experience of the incident. Although the psychiatrists find that she did not always speak in this manner, the overall presentation of her is not conducive to seeking or keeping any employment.

19. At the time of the incident, she was 51 and had been working as a car park cashier for over 13 years. It is an unskilled manual job that usually attracts keen competition for employment but low pay. Being a Mandarin speaker and with mental problems, the Applicant would in reality find it very hard to find any job, assuming she can now bring her to work without treatments. Looking at the situation as a whole, I am fully satisfied that the Applicant is now suffering from permanent total incapacity and section 7(1)(b) of Cap. 282 applies. Accordingly her appeal against the assessment of 20% loss of earning capacity made by the Employees' Compensation (Ordinary Assessment) Board in the Certificate of Review of Assessment dated 27 April 1999 is also allowed.

20. The Applicant also claims for compensation for temporary incapacity under Section 10 of Cap 282. The only question to be decided is how long the period the Court should allow for it? From the incident on 27 April 1996 up to 20 August 1996, the Applicant had been granted sick leaves 6 times, each time between 2 days and 4 days, totalling 14 days. Later Dr Chen granted her a 3 month sick-leave from 10 September 1996 to 10 December 1996. On 20 March 1998 and 18 December 1998, the Employees' Compensation (Ordinary Assessment) Board assessed the Applicant to have a permanent loss of earning capacity at 22%. On 14 April 1999 they reviewed the assessment and revised it to 20%. Counsel for the Respondent submits that a period of 3 months and 17 days is all that the Applicant is entitled under section 10. Counsel for the Applicant argues that the Applicant is entitled to a full period of 3 years.

21. Compensation under section 10 is apparently meant to tidy over an injured employee for the period of temporary incapacity. This period, as it name implies, must end, if within 3 years, either on a complete recovery or at a time when permanent incapacity is confirmed or death sets in. I hold that the period of temporary incapacity should end when the permanent nature of the incapacity is confirmed by the Employees' Compensation Board or by the Court. This is the time the employee is entitled to compensation under section 7 or section 9, as the case may be. In this case the periods of sick leave granted by the medical practitioners could not, on its facts, truly represent the period of temporary incapacity. It only ended when the Employees' Compensation (Ordinary Assessment) Board made the assessment and issued a certificate on 31 December 1998 confirming the permanent nature of the injury.

22. The incident occurred on 27 April 1996 and the Applicant resigned on 15 June 1996. Before her resignation, she was granted sick leave of 6 days in total. The period of temporary incapacity for the year of 1996 should be 6 2/3 months. At the time of the incident, the Applicant was earning monthly wages totalling $7,150. The adjustments in accordance with Consumer Price Index for the years of 1997 and 1998 have been agreed to be 104.3% and 97.7% respectively.

23. The final claim is for medical expenses. I shall only allow those that are supported by receipts and the amount is agreed to be $1,202.

24. The total compensation is as follows :

A.	Compensation for permanent total incapacity : ($7,150 X 72)	$514,800
B.	Compensation for temporary incapacity : 1996 : $7,150 X 6 2/3 X 2/3 = $31,778 1997 : $7,150 X 104.3% X 12 X 2/3 = $59,660 1998 : $7,150 X 97.7% X 12 X 2/3 = $55,884	$147,322
C.	Medical expenses :	$1,202
	Total :	$663,324

25. The orders I shall make are as follows :

1. Judgment be entered in favour of the Applicant against the Respondent in the sum of $663,324.

2. The judgment sum shall carry interest at half of the judgment rate (i.e. 5.97%) from 27 April 1996 to date of judgment i.e. 13 May 1999.

3. The Respondent shall pay the costs of the Applicant for these proceedings, to be taxed if not agreed. The Applicant's costs be taxed in accordance with the Legal Aid Regulations.

4. Certificate for counsel.