Cheung Sau Lin v Tsui Wah Efford Management Ltd
District Court
Employees’ Compensation Case No 2438 of 2014
Judge Harold Leong
7 August 2018

Employment law - employees' compensation - requirement to attend medical examination under s.16(1A) - failure to attend "over a period of 15 days" without reasonable excuse under s.16(4) extinguished employee's right to compensation - s.16(4) essential "protection" mechanism allowing employers to identify genuine cases of work injury from those "doctor-surfing" or seeking to prolong sick leave indefinitely - distinction between s.16(4) and s.16(7) - Employees' Compensation Ordinance (Cap.282) s.16(4), 16(7)

Employment law - employees' compensation - periodical payments under s.10 - flexibility allowed for reasonable administrative time lag between production of sick leave certificates and actual payment - Employees' Compensation Ordinance (Cap.282) s.10(3)

In an employees' compensation claim, C, the employee, failed to attend a scheduled medical examination pursuant to s.16(1A) of the Employees' Compensation Ordinance (Cap.282) (ECO). One letter and one chaser regarding the medical examination were sent to C by the Loss Adjuster. No objection as to the time or place of the medical examination was raised or opinion from a medical practitioner or dentist why C was unable or not in a fit state to attend was provided. When C received the letter, there were periodic payments outstanding on sick leave certificates submitted after the end-of-the-month cut off. A split trial was ordered and at issue was whether: (a) failure to undergo a medical examination under s.16(1A) "over a period of 15 days" merely suspended C's right to compensation, rather than extinguished it, pursuant to s.16(4); and (b) whether the late or outstanding periodic payment was a breach of s.10(3) and as a result, the employer was not entitled to request C undergo a medical examination. Section 16(4) provides "If the employee fails to undergo a medical examination as required under this section, his right to compensation shall be suspended until such examination has taken place; and if such failure extends over a period of 15 days from the date when the employee was required to undergo the examination ... no compensation shall be payable, unless the Court is satisfied that there was reasonable cause for such failure."

Held, dismissing the claim, that:

(1) The objective of the ECO was to provide for a simple mechanism of financial relief for employees genuinely incapacitated by work injuries regardless of the employer's fault. The right to compensation was established by the employee providing sick leave certificates pursuant to s.10(2). However, an employer was not able to scrutinise the circumstances under which such certificate was obtained and merely had to pay the specified periodic payment on production. The employer was also unlikely to recover any compensation already paid out even if it was later proved at trial that the lengthy sick leave was unreasonably prolonged by "doctor-surfing". It was necessary that the ECO provided "balanced protection" between quick relief for genuine cases of work injury and abuse by those "doctor-surfing" or seeking to prolong sick leave indefinitely without "genuine" or significant injury. (See paras.17-23.)

(2) There were two limbs to s.16(4). The first limb provided for an immediate suspension of the right to compensation on failure to attend the medical examination, such suspension being temporary so long as the employee subsequently attended the examination within 15 days. The second limb clearly envisaged a scenario where failure to attend the examination extended over 15 days, in which case there would be no further compensation "unless the court is satisfied that there was reasonable cause for such failure". Thus, s.16(4) provided the essential "protection" mechanism by allowing the employer to distinguish early on, before much compensation had been paid out, "genuine" cases from others by a medical practitioner who was independent. (See paras.14-16, 24, 30.)

(3) This was in contrast to s.16(7) where an employee who consulted a medical practitioner unreasonably refused the recommended remedial treatment which then aggravated the injury. In this situation, it must be assumed that the medical practitioner had confirmed that this was a "genuine" case. However, as there were risks with any medical treatment, the employee might have a genuine or personal reason, albeit objectively unreasonable, for refusing the treatment. As a doctor could not proceed without informed consent, it was only fair that the court assessed compensation on the assumption that any objectively reasonable remedial treatment was performed. It was entirely reasonable that an employee should be penalised less in this situation compared with that under s.16(4) (Kwok Chi Lung v Kwan Poi Chi Walter [2008] 1 HKCLRT 207 considered). (See paras.9-12, 27-28.)

(4) Where the employee was so sick or disabled as to be unable to attend a medical examination for as long as 15 days, he or she should have no difficulty in obtaining an opinion from either a medical practitioner, Chinese medicine practitioner or dentist that he was "unable or not in a fit state to attend" pursuant to s.16(3). Here, in the absence of medical opinion, C's claims that she was "still on sick leave with medical follow-up treatment" and her "medical condition currently not static for assessment" were not reasonable causes for failing to attend the medical examination (Gurung Kamala v Hong Wei Ltd (DCPI 1660/2010, [2012] HKEC 426) applied). (see paras.26, 38-45.)

(5) There was no attempt by the employer not to pay C outstanding periodic payments in breach of s.10(3). Considering employers, especially large companies, had in place systems for staff payment, courts must allow some flexibility for reasonable administrative "time lags" between the production of sick leave certificates, calculation of periodic payments and actual payments. Since C only delivered the sick leave certificates two to three days before the payment date, it was not unreasonable that her employer's administrative system could not process them in time and could only pay out the outstanding compensation the following month. (See paras.53-73.)

(6) C had failed to undergo a scheduled medical examination pursuant to s.16(1A) and such failure extended to a period over 15 days without reasonable cause. Pursuant to s.16(4), no further compensation was payable. As C was compensated up to the date preceding the date of the scheduled medical examination, the employees' compensation claim would be dismissed and an order nisi for costs to be awarded to the employer made. (See paras.79-81.)

Application

This was a split trial in an employees' compensation claim following the failure of the applicant-employee to undergo a medical examination pursuant to s.16(1A) of the Employees' Compensation Ordinance (Cap.282). The facts are set out in the judgment.

Jurisdictions: 

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