Introduction

In employees’ compensation cases, the employer often requires the employee to attend medical examination. The employee often questions whether he must attend such medical examination. In a recent case Cheung Sau Lin v Tsui Wah Efford Management Limited [2018] HKDC 941, the District Court held that if the employee fails to attend the medical examination within 15 days without reasonable reasons for such failure, he will not be entitled to any compensation under the Employees’ Compensation Ordinance (Cap. 282) (“ECO”).

Background

In this case, the Applicant has refused to attend a medical examination under section 16 of ECO. A split trial was ordered and the sole issue in the trial is whether any compensation under ECO shall be payable if the Applicant had failed to undergo the medical examination required under Section 16 (1A) of ECO.

Relevant Sections in ECO

The relevant sections include Section 16(1A) and Section 16(4) of ECO. Section 16(1A) of ECO provides:

“An employer may require an employee who is in receipt of a periodical payment under section 10 to undergo a medical examination from time to time, without expense to the employee, and the employee shall undergo the examination.”

Section 16(4) of ECO 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 under subsection (2) or (3), as the case may be, no compensation shall be payable, unless the Court is satisfied that there was reasonable cause for such failure.” (Emphasis added)

Court’s Analysis

Prerequisite

Section 16(1A) provides that an employee who is in receipt of a periodic payment shall undergo a medical examination as requested by the employer. Therefore, if the employer did not pay the employee the periodic payment in accordance with ECO, the employer cannot require the employee to undergo a medical examination.

Interpretation of Section 16(4)

The Applicant argued that the meaning of Section 16(4) was that the applicant’s right to compensation would not be extinguished, but merely suspended for failing to attend the medical examination over a period of 15 days.

The Judge disagreed and held that plain meaning of Section 16(4) is that no compensation shall be payable under such circumstances unless there was a reasonable cause.

The Judge held that there are clearly two limbs to Section 16(4). The first limb provides for an immediate suspension of right to compensation on failure to attend the medical examination and such suspension will be temporary if the employee subsequently attends the examination within 15 days. The second limb of Section 16(4) clearly states that no compensation shall be payable if the Applicant fail to attend the medical examination over a period of 15 days unless there was a reasonable cause.

Is this a rather draconian sanction?

The Judge held that the sanction imposed by Section 16(4) is not draconian. The Judge discussed the limitation of sick leave certificates given by the treating doctors. Doctor-patient trust provides opportunities for the “doctor-surfing” employee to prolong sick leave indefinitely without genuine or significant injury, or after recovery from injury. Section 16(4) provides a “protection” mechanism, which allows the employer to identify early on the genuine cases from the others by an independent expert and not a treating doctor.

Comparison with Section 16(7)

Section 16(7) provides that, in summary, when the employee fails to submit to treatment unreasonably which had aggravated the injury, the compensation should be assessed as if the employee had undergone the treatment.

The Judge found that under Section 16(7), the employee has already consulted a medical practitioner who had recommended remedial treatment. One must assume the doctor has confirmed that this was a “genuine” case. It is therefore reasonable that the employee should be penalized less in the situation of failure to submit to treatment, compared to failing to attend a medical examination when employer has no way to know if this was a “genuine” case or not.

Any reasonable cause for failure to attend?

The Judge agreed that one “reasonable cause” might be whether the time and place of the medical examination was reasonable.

In this case, the Applicant argued that it would cause great pain for her to attend the examination from her home in Lantau to the clinic in Central. However, the Applicant admitted in court that she attended her lawyers in Sheung Wan for at least 3 times.

The Judge therefore held that a medical examination taking place at Central in the afternoon is not unreasonable both in terms of time and place.

The Judge also stated that if the Applicant’s case was that she was unable or not in a fit state to attend the medical examination, she should comply with Section 16(3) and notify the employer of the opinion of any registered medical practitioner, registered Chinese medicine practitioner or registered dentist that she was unable or not in a fit state to attend the medical examination.

The Judge also held that the employee was still on sick leave and the employee’s medical condition was not static for assessment are not reasonable causes for failing to attend the medical examination.

Conclusion

This case reminds the employees that if the employer arranged a medical examination for the employee in accordance with Section 16(1A) of ECO, the employee will not be entitled to any compensation under ECO if he fails to attend the medical examination within 15 days, unless there is any reasonable cause for not doing so. If an employee is in doubt as to whether he should attend the medical examination and whether there is any reasonable cause, he shall seek legal advice promptly.