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Legal Update

Amendments to Employees' Compensation Ordinance effective on 1 September 2008

15 August 2008
Mayer Brown JSM Legal Update

Employees' Compensation Insurers should be well advised to take note of the amendments to the Employees' Compensation Ordinance ("ECO") (Cap.282) under the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance 2006 (the "Amendment Ordinance"), which will come into effect on 1 September 2008. In short, the amendments give recognition to the medical treatment, examination and certification given by registered Chinese medicine practitioners for the purpose of employees' entitlement to benefits under the ECO.

Please also refer to our Client Alert "Employers Now Liable For Chinese Medical Expenses Of Injured Employees" of 23 October 2006 for background information.

Full Update

The amendments will only apply to injuries caused by accidents arising out of and in the course of employment happening on or after 1 September 2008. Major changes introduced by the Amendment Ordinance are listed as follows:
1.    Certification for the period of temporary incapacity (Section 10(2))
Certification by a registered Chinese medicine practitioner as to the period of temporary incapacity caused by work injury will now be recognised. Periodic payments shall be made by the employer to the injured employee according to such certification. A registered Chinese medicine practitioner is a person who is registered under the Chinese Medicine Ordinance (Cap.549) and whose name appears on the Register of Chinese Medicine Practitioners maintained by the Chinese Medical Council ("CMC"). It should also be noted that the CMC has drawn up a "Reference Guide on Issuance of Sick Leave Certificates by Registered Chinese Medicine Practitioners" which sets out the common diseases/injuries and the suggested duration of sick leave. Both the Register and the Reference Guide can be found on CMC's website at .
2.    Medical expenses (Sections 10A and 10AB)

An employer is also liable to pay for medical treatment given to an injured employee by a registered Chinese medicine practitioner. Medicines (which include both Chinese herbal medicine and proprietary Chinese medicine) shall be prescribed by a registered Chinese medicine practitioner and shall be obtained from the practitioner directly or from a licensed retailer of Chinese herbal medicines. An employer is only liable for the cost of medicines prescribed for the direct treatment of the injury and not for the costs of any tonic or substance for the purpose of the maintenance of general health or for any medicines or pharmaceutical product that is not registered under the Pharmacy and Poisons Ordinance (Cap.138). It should also be noted that the daily maximum of medical expenses payable remains unchanged at $200 for each in-patient or out-patient treatment and $280 where both in-patient and out-patient treatment are rendered on the same day.
Moreover, unless the prescription contains a direction that the medicines are to be dispensed a stated number of times and the medicines are dispensed in accordance with that direction, the employee shall not be reimbursed the cost of medicines dispensed pursuant to the same prescription on subsequent occasions.
3.    Medical examination (Section 16)
Where an employee is attended by a registered Chinese medicine practitioner, the employer may require the employee to undergo a medical examination by a registered Chinese medicine practitioner named by the employer.
In addition, the amended section 16 now requires that a medical practitioner, Chinese medical practitioner or dentist who has conducted an examination shall, as soon as reasonably practicable, send a report of the examination and all findings related to the injury to the employer. An employee is entitled to make a written request to his employer for the production of the medical report, and the employer must send a copy of the report to the employee free of charge within 21 days after he receives the written request or within 14 days after the report is received by the employer, whichever is later. Failure to comply with the request without reasonable excuse shall constitute an offence and the employer shall be liable on conviction to a fine.   
4.    Other amendments (Sections 16D, 33, 36B and 36M)

Apart from the major amendments above, other amendments also provide that registered Chinese medicine practitioners shall have similar functions as registered medical practitioners and registered dentists with regard to the supplying and fitting of artificial items supporting the function of the body and the appointment of members of various boards.

As a side note, similar amendments are also made to the Pneumoconiosis and Mesothelioma (Compensation) Ordinance (Cap.360), which will enable beneficiaries under that ordinance to seek treatment of pneumoconiosis and/or mesothelioma from registered Chinese medicine practitioners and have such medical expenses reimbursed.

For further information, please contact Angela Yim ( )

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