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Legal Update

Hong Kong Court Dismisses an Employees' Compensation Claim as the Employee Refused to Attend Medical Examination as Required by the Employer

4 October 2018
Mayer Brown Legal Update
In Cheung Sau Lin v. Tsui Wah Efford Management Ltd [2018] HKDC 941, the District Court (the "Court") dismissed an employees' compensation claim on the ground of the employee's refusal to attend medical examination as required by the employer under section 16 of the Employees' Compensation Ordinance (ECO).

Facts

The Applicant was the claimant of an employees' compensation claim. She received a letter from the Loss Adjusters on 11 November 2014 and a chaser on 17 November 2014 requiring her to attend a medical examination under section 16(1A) of the ECO. However, she failed to attend the medical examination fixed on 25 November 2014.

Issues and Reasoning

The issue before the Court was whether any compensation under the ECO is payable to the Applicant as a result of the Applicant's failure to undergo a medical examination scheduled on 25 November 2014 as required under section 16(1A) of the ECO.

A. Interpretation of section 16(4) of ECO

Section 16(4) of the ECO provides that "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".

The Applicant tried to argue that the meaning of section 16(4) of the ECO was that the Applicant's right to compensation would merely be suspended but not extinguished for failing to attend the medical examination "over a period of 15 days".

The Court disagreed with this argument, holding that the plain meaning of the section is clear that the right to compensation would be extinguished under such circumstances "unless the court is satisfied that there was reasonable cause for such failure".

The Court held that such interpretation does not make section 16(4) of the ECO a draconian provision. The purpose of section 16(4) of the ECO is to provide a protection mechanism to allow the employer to identify early on the "genuine" cases from the others by an expert who should be independent and not a treating doctor. The Court stressed that this protection mechanism is essential as the ECO compensation procedure could potentially be abused by employees who engaged in "doctor surfing" behaviour (i.e. visiting a new doctor each time when the sick leave granted by the previous doctor runs out, aiming to simply prolong sick leave indefinitely without a "genuine" injury). If the employee was severely sick to the extent that he was unable to attend medical examination as required under section 16, he could easily rely on section 16(3) of the ECO and obtain an opinion from the treating doctor stating that the employee was unable, or not in a fit state, to attend the required medical examination.

B. Whether there is any reasonable cause for failure to attend

The Applicant claimed that travelling to the designated doctor's clinic in Central from her home in Lantau Island for the medical examination would cause her great pain as she was suffering from persistent and intense bilateral knee pain. However, given that the Applicant admitted in court that she could attend her lawyers in Sheung Wan on at least three occasions, the Court ruled that a medical examination taking place in Central could not be considered as unreasonable. Further, the Applicant should have raised such concern so that the Loss Adjusters could find a more convenient arrangement for the medical examination. There was simply no reasonable cause for failing to attend the medical examination.

C. Whether there is a breach of section 10(3) of the ECO

The Applicant also argued that her employer could not require her to undergo a medical examination as the employer failed to pay the periodic payments as specified under section 10(3) of the ECO. After examining the employer's administrative system as well as the conduct of the Applicant and Respondent, the Court found that there was no attempt by the employer not to pay that part of periodic payment. It was held that the employer was not in breach of section 10(3) of the ECO, and hence had the right to require the employee to undergo medical examination.

Takeaways for Employers

This decision demonstrates that the Court acknowledges the need to strike a balance between, on one hand, having a simple process to allow quick relief for employees in genuine cases and, on the other hand, having a mechanism to protect the relatively simple compensation procedure from being abused by employees (especially those who engage in "doctor surfing" behaviour). The Court recognizes that section 16(4) of the ECO offers such protection mechanism to employers, which is very important.

Employers are reminded that they must pay periodical payments in compliance with section 10(3) of the ECO in order to have the right to require the employee to undergo a medical examination under section 16 of the ECO in the first place (so that they are then in a position to take advantage of the protection mechanism under section 16(4) of the ECO if the employee refuses to attend the required medication).

The judgment is available at:
https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=116754&QS=%2B&TP=JU
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