EC claim dismissed for failing to attend medical examination under Section 16 ECO

Cheung Sau Lin v Tsui Wah [2014]

In Cheung Sau Lin v Tsui Wah DCEC 2438/2014, the Court dismissed an injured employee’s claim for compensation after she refused to undergo a medical examination as requested by her employer under S.16(1A) Employees’ Compensation Ordinance (ECO).

As many employers know, periodical payments may be suspended if an employee refuses to attend a medical examination arranged by the employer. However, it has been unclear whether the employee’s rights to compensation would be totally extinguished if they failed to attend over a period of 15 days.

In this particular case, a medical examination was arranged for 25 November 2014. The employee said she could not go as she was still suffering from intense knee pain and no relative was available to accompany her. However, it was revealed during cross examination that she could attend her solicitors on at least 3 occasions from September to November. She also did not produce any opinion from any doctor to show that she was unable or not in a fit state to attend the medical examination. Her solicitors merely replied stating that she was still on sick leave and her medical condition was not static for assessment.

The Court said that such reason did not constitute reasonable cause for failing to attend the medical examination and neither was the employee’s proposal to conduct a joint examination a relevant excuse.  Section 16(4) ECO has two limbs: the first limb provides for immediate suspension of right to compensation on failure to attend the medical examination.  The second limb provides that if failure to attend extends over a period of 15 days…, no compensation shall be payable, unless the Court is satisfied that there was reasonable cause for such failure. Since the Court had serious doubt as to the extent of her claimed pain and disabilities, it found there was no reasonable cause regarding her physical condition for failing to attend the scheduled medical examination. On that basis, it exercised its discretion in favour of the employer and disallowed the employee’s claim in its entirety since periodical payments had already been paid up to the date of the examination.

In his Judgment, HH Judge Harold Leong strongly criticised how some dishonest employees were able to abuse sick leave certificates, with little or no objective medical evidence of subjective complaints. The fact that there are thousands of private doctors and large numbers of government hospitals and clinics available provided patients with limitless opportunities to doctor-surf to prolong sick leave indefinitely without genuine or significant injury. He recognised that without a protection mechanism, the employer is at a great disadvantage against such doctor surfing behaviour as it 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. Thus, the S.16 medical examination provided employers with a protection mechanism to identify early on, before compensation has been paid, the genuine cases from the others by an expert who should be independent and not a treating doctor.

This Judgment highlights how employers and insurers can make use of the independent medical examination as a weapon to combat prolonged sick leave. Although it does involve an upfront cost, a favourable medical report means employers have a reasonable excuse to cease periodical payments immediately.  If the employee repeatedly refuses to attend the medical examination without reasonable ground, an employer can even apply for the entire claim to be dismissed. Of course, it may not be too difficult for unscrupulous employees to obtain the necessary opinion from a treating doctor to say they were unfit to attend the examination but at least this Judgment is a clear signal that the courts are prepared to adopt strong or even draconian measures to prevent abuse of the system.