IME– a Tiger that BITES?
Cheung Sau Lin v. Tsui Wah Efford Management Limited, DCEC No. 2438 of 2014, H.H. Judge Harold Leung, 7th August 2018.
The Learned Judge dismissed the employee’s claim which the Applicant refused to attend the medical examination scheduled under Section 16 of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”).
This is a split trial and the only issue needed to be determined by the Learned Judge is “Whether any compensation under the ECO shall be payable to the Applicant as a result of the Applicant’s failure to undergo a medical examination scheduled on 25th November 2014 as required under Section 16(1A) of the ECO.”.
The fact of this case is simple. The Applicant was receiving periodical payment under Section 10 of the ECO and the loss adjuster for the employer arranged a medical examination under Section 16 of the ECO but the Applicant refused to attend the medical examination fixed for 25th November 2014. The Applicant also failed to notify the Respondent 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 pursuant to Section 16(3) of the ECO. Accordingly, no compensation shall be payable “unless the Court is satisfied that there was reasonable cause for such failure” under Section 16(4) of the ECO.
The Applicant through her solicitors only written to the loss adjuster 1 day before the scheduled medical examination and stated that, “Please be informed that our client is still on sick leave with medical follow-up treatments. Her medical condition is currently not static for assessment. In this regard, our client shall not attend the medical examination on 25th November 2014.”.
The Learned Judge held that there are 2 limbs in Section 16(4) of the ECO: the 1st 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 2nd limb envisages a scenario when the failure to attend a medical examination extends over a period of 15 days in which case no further compensation shall be payable forthwith “unless the court is satisfied that there was reasonable cause for such failure”.
The Learned Judge rejected the argument that Section 16(4) of the ECO imposes a “draconian” sanction against the employee for failing to attend the medical examination “over a period of 15 days”. The Court held that Section 16(4) is there to provide the essential “protection” mechanism to allow the employer to try to identify early on before much compensation has been paid out, the “genuine” cases from the others by an expert who should be independent and not a treating doctor.
The Learned Judge also rejected the argument raised by the Applicant that because she was still on sick leave and the “condition is currently not static for assessment” and hence it was a reasonable cause for her failure to attend the medical examination. The Court held that Section 16(3) of the ECO provided the reason for not attending being “unable or not in a fit state to attend” (in the opinion of a doctor etc.). Accordingly, the Court ruled that the Applicant’s refusal was not a reasonable cause for such purpose.
The Court therefore found that the Applicant had failed to undergo a medical examination scheduled on 25th November 2014 as required under Section 16(4) and under the 1st limb of Section 16(4), her right to compensation had been suspended on 25th November 2014.
The Court further held that the Applicant’s failure extended over a period of 15 days from the date when the employee was required to undergo the examination and there was no reasonable cause of such failure. As such, under the 2nd limb of Section 16(4) of the ECO, no further compensation should be payable.
The Applicant had already been compensated up to 24th November 2014, the Learned Judge therefore dismissed the Applicant’s EC claim with costs to the Respondent.
This judgment is a good news to both the employers and the EC insurers, the defence in the EC claims. In particular, when the defence is facing an employee whose complaints are no more than subjective pain and aches in the absence of any or little objective medical evidence, who kept on the “doctor-surfing” behaviour to prolong sick leave indefinitely without genuine or significant injury, or after essentially full recovery from the injury as the Learned Judge put it in his Judgement.
If this Judgment stands good without an unfavourable appeal, it would be wise for the defence to make good use of the Section 16 medical examination in the case like soft tissue injuries or apparently minor injuries without the need to wait until the employees no longer have sick leave. Hopefully, the defence will be able to safeguard its interest in cases which the employees’ subjective complaints are unsupported by any objective medical evidence and no more payment of compensation in perpetuity in such circumstances.
As the Learned Judge put it wisely in the Judgment “The employer is unlikely to be able to recover any compensation already paid out even if it is later proven at trial that the lengthy sick leave has been unreasonably prolonged by such “doctor-surfing” behaviour”.