Doubtful Cases
An employer is only liable for the injury of his employees who suffered from injury by accident arising out of and in the course of the employment according to section 5 of the Employees’ Compensation Ordinance (Cap. 282). If an employer considers that he has no liability in respect of a work injury incident or has doubt about its authenticity, he should conduct a preliminary investigation as soon as possible and attach the relevant information or justifications to the form (usually form 2) submitted for notifying the Commissioner, so as to seek assistance from the Labour Department.
An employer should also remind his insurance company of the doubt when he submits form 2 to his insurance company.
Medical examination and treatment
And, according to section 16(4), if the employee fails to undergo a medical examination as required by his employer, 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.
In a recent Court of Appeal case: Cheung Sau Lin v. Tsui Wah Efford Management Ltd, CACV 434/2018 [2021] HKCA 1084
(https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=138131)
The plaintiff’s argument on the meaning of section 16(4) of the ordinance was that her right to compensation would merely be suspended but not extinguished for failing to attend the medical examination “over a period of 15 days”.
However, the District Court disagreed with this argument. Below are highlights of paragraphs of the judgment of the District Court:
“§14. The plain meaning of the section is that “no compensation shall be payable” under such circumstances “unless the court is satisfied that there was reasonable cause for such failure.
§21. As I have stated in previous decisions, doctors are trained to manage patients based on doctor-patient trust. I would imagine that a doctor would unlikely turn away a patient who was complaining of aches and pains despite little or no objective signs, …..
§22. This, however, means that the medical profession may be open for abuse because a patient who is more concerned about obtaining sick leave certificates than any medical treatment can visit a doctor for a few times …..There are thousands of doctors ….would provide almost limitless opportunities for such “doctor-surfing” behaviour to prolong sick … §25. Bearing such in mind, I do not think that Section 16(4) imposes a “draconian” sanction. One needs to balance this sanction with the fact that a delay of 15 days for the examination essentially also means an extra “free-ride” of half a month of compensation for the “doctor-surfing” employee….Whether there is any reasonable cause for failure to attend?
§35. In her Reply, the Applicant stated that she was:-suffering from persistent and intense bilateral knee pain and could only walk very slowly. It would cause the Applicant great pain to make the trip from her home in Lantau Island to Dr. Cheng’s clinic in Central which would be a long journey requiring her to take the bus and then the MTR. Furthermore, the Applicant was unable to find any relative or friend to accompany her on the trip on 25 November 2014. §36. However, under cross-examination, the Applicant admitted in court that she could attend her lawyers in Sheung Wan on at least 3 occasions: once in September and twice in November 2014.”The Court of Appeal, therefore, dismissed the employee’s appeal.
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