Chau Wai Tak v. Senmax Property Management Ltd

DCEC 2521/2021

[2024] HKDC 35

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 2521 OF 2021

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IN THE MATTER OF AN APPLICATION BETWEEN:

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REASONS FOR JUDGMENT

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1.This is a trial on the following preliminary issue in an Employees Compensation claim:

“Whether no compensation under Employees’ Compensation Ordinance (“the Ordinance”) shall be payable to the Applicant as a result of the Applicant’s failure to undergo medical examinations scheduled on 16 March 2020 and 8 April 2020 as required under s. 16(1A) of the Ordinance.”

2.After the hearing, I have made the following order:

a. No compensation be paid under the Employees’ Compensation Ordinance (“the Ordinance”) shall be payable to the Applicant as a result of the Applicant’s failure to undergo medical examinations scheduled on 16 March 2020 and 3 April 2020 as required under s. 16(1A) of the Ordinance;

b. Written Reasons for Judgment be handed down on or before 4 March 2024;

c. Costs of the action be to the Respondent with certificate for counsel to be taxed if not agreed; and

d. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

3.The following are the reasons for the judgment on the preliminary issue.

Factual Background

4.The Applicant was employed by the Respondent as a Security Guard and the Applicant claimed to have suffered a right shoulder injury as a result of an accident in the course of employment on 6 December 2018.

5.There is no dispute that the Respondent has continued to pay the Applicant the periodic payment required under the Ordinance since the date of the accident until 15 March 2020. The total payment he has already received was no less than HK$207,932 (in addition to MPF contribution).

6.There is also no dispute that the Respondent’s insurers, QBE Hongkong & Shanghai Insurance Limited (“QBE”) has written a letter under s. 16 of the Ordinance on 6 February 2020 (“the 1^st QBE Letter”, Trial Bundle page 70) requesting the Applicant to attend a medical examination by a Dr. Lam Yan Kit scheduled for 16 March 2020 (“the 1^st Examination”). The Applicant does not dispute that he has received this letter.

7.The 1^st QBE Letter stated, amongst others, the time, date and address of the 1^st Examination, a warning of possible legal consequences if the Applicant did not accept the examination, the re-scheduling notification procedure (if the Applicant has reasonable reason that he could not attend the appointment), and a telephone number and contact person for any queries regarding compensation.

8.It is not in dispute that the Applicant did not attend the 1^st Examination nor contact QBE at all.

9.When the Applicant failed to attend the 1^st Examination, on the same day, according to the Respondent’s case, QBE sent a second letter (“the 2^nd QBE Letter”) informing the Applicant of another examination appointment on 3 April 2020 (“the 2^nd Examination”, Trial Bundle page 71-72). In the 2^nd QBE Letter, QBE also warned of the consequence of not accepting the examination, including the extinguishing of right to claim further employees’ compensation under s. 16 of the Ordinance, and also again provided a contact telephone for queries about.

10.It is not in dispute that the Applicant again did not attend the 2^nd Examination nor contact QBE at all.

11.The Applicant’s case is that he did not receive the 2^nd QBE Letter.

12.The Respondent provided the contemporaneous email record between them and QBE and there were 2 emails dated 16 March 2020 from the case handler of QBE, Ms. Stephanie Tang. The first one, sent on 3:54pm, provided an update for the Respondent that the Applicant did not attend the 1^st Examination and that QBE has re-arranged the examination etc. (Trial Bundle page 77). The second email, sent on 4:41pm, attached their “re-arrangement letter” to the Applicant for the Respondent’s record (Trial Bundle page 76-77).

13.QBE sent a third letter on 8 April 2020 to the Applicant (“The 3^rd QBE Letter”, Trial Bundle page 74) informing the Applicant that he has failed to attend the 1^st and 2^nd Examination or provide a reasonable cause of such, and as a result, according to s.16 and various legal precedents, his right to claim further employees’ compensation has been terminated.

14.The 3^rd QBE Letter was sent by registered mail and there was no denial from the Applicant of not receiving it.

15.The next day (i.e. 9 April 2020), the Applicant attended the Respondent’s office and handed in a Sick Leave Certificate by Dr. Michael Lung dated 16 March 2020 (Trial Bundle page 81). This Sick Leave Certificate stated that the Applicant attended Dr. Lung on 16 March 2020 with a diagnosis of “Upper Respiratory Tract Infection”, and one day of sick leave (for 16 March 2020) was granted.

16.On this occasion, the Respondent only gave the Applicant the periodic payment from 1^st to 15^th March 2020. No further periodic payment was released to the Applicant.

17.The Applicant took out an Employees’ Compensation application on 30 November 2021. The Respondent took out a Summons for trial of the preliminary issue as stated above on 30 May 2022.

Legal Principles

18.Section 16 of the ECO relevantly provides that:

“(1A) 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.

…

(3) If the employee is, in the opinion of any registered medical practitioner ..., unable or not in a fit state to attend on the registered medical practitioner ... named by the employer—

(a) that fact shall be notified to the employer; and

(b) the medical practitioner ... so named shall—

(i) fix a reasonable time and place for a medical examination of the employee; and

(ii) notify the employee accordingly.

...

(4) 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.

(5) The employee shall be entitled to have his own registered medical practitioner, registered Chinese medicine practitioner or registered dentist present at such examination, but at his own expense.

...

(8) Where under this section a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension.”

19.In Cheung Sau Lin v Tsui Wah Efford Management Ltd [2018] 3 HKLRD 865 (“Cheung Sau Lin”) , this court held at §§16, 17, 23 – 26, 38, 39, 43 that:

“16. Reading Section 16(4) in its entirety, there are clearly two limbs to it: 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 clearly 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”.

17. The objective of the ECO is to expeditiously provide financial relief to employees (genuinely) incapacitated by work injury regardless of fault on part of the employer. Thus the process needed to be simplified and straightforward: the right to claim as an employee is essentially established by providing sick leave certificates (s.10(2)). As such, the legislation must necessarily provide a “balanced protection” mechanism so that, on one hand, there will be quick relief for genuine cases but, on the other hand, the compensation procedure should not be abused because of its relatively simple process.

23. Without any “protection” mechanism, the employer is at a great disadvantage against such behavior. 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” behavior.

24. Thus s.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.

25. Bearing such in mind, I do not think that s.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. Further, it must be highly suspicious if the circumstance was that the employee could attend a doctor to seek sick leave but yet could not attend another (at a reasonable time and place) for a medical examination.

26. After all, the legislation must have contemplated the circumstances that if an employee was so sick and disabled to render him unable to rise from the sick bed (metaphorically) for as long as 15 days to attend a doctor’s examination, there should be no difficulty for the employee to comply with s.16(3) in obtaining an opinion from the treating doctor that the employee was unable or not in a fit state to attend the medical examination. Being genuinely sick and disabled to such an extent for 15 days should not be considered a minor matter: I would imagine that many patients undergoing even quite major surgeries would have recovered substantially to be discharged from hospitals in less than 15 days after the operations. Such patients, I would think, would be deemed by their treating doctors to be in a fit state to travel back home and, presumably, fit enough also to travel back to attend any medical follow-ups.

…

38. Further, if her physical condition and failure to find someone to help were the real reasons, the applicant, or her lawyers, should have replied immediately so that the Loss Adjusters could find more convenient arrangements for the medical examination. The court needs to bear in mind the unfairness to the respondent when there was delay of the medical examination when the respondent has to continue to pay compensation all this time. Any delay in replying to the respondent without proper reasons simply raises the suspicion of delaying tactics for more payment. I note that the applicant was quite capable in writing to the respondent on 10 November 2014 so there was no reason why she could not reply to this letter dated 11 November 2014.

39. More importantly, if the applicant was advancing a case that she was “unable or not in a fit state to attend”, there should be no problem for her to comply with s.16(3) but, as above, she failed to do so and failed to provide any explanation why she failed to do so.

…

43. Section 16(3) clearly states that the reason for not attending is that the employee was “unable or not in a fit state to attend” (in the opinion of a doctor etc) and not being “still on sick leave” and “condition is currently not static for assessment”.”

20.In Liu Weiguang v Li Keng Ko [2019] 1 HKLRD 553 , Her Honour Judge Levy considered overseas decisions on similar employees’ compensation regimes from the United Kingdom, Australia, and Belize (§30), and concluded at §§41 – 44 that the sanction under section 16(4) of the ECO of extinguishing an employee’s right to compensation (unless reasonable cause was shown) was just and equitable, and not draconian.

21.I agree with the Respondent’s counsel, Mr. Leon Ho (“Mr. Ho”), that one must read the entire s.16 of the Ordinance together (especially ss. (1A), (2), (3), (4) and (8)) in order to understand how this section should operate, and it is as follows:

a. As long as the employer is paying the employee a periodic payment, he is entitled under s.16(1A) to require the employee to undergo a medical examination from time to time;

b. The employee is obliged to attend such a medical examination (provided that it is scheduled at a reasonable time and place) as notified (s.16(2)) except if he can satisfied two conditions:

i. He has obtained an opinion from a medical practitioner etc. that he is unable or not fit to attend the medical examination (s. 16(3)); and

ii. He has notified the employer of such an opinion.

c. If the employee satisfied these two conditions, the time and place for the medical examination can be re-fixed and the employee will be notified accordingly (s.16(3)(b));

d. If the employee fails to satisfy these two conditions, the appointment shall not be re-fixed;

e. If he fails to attend the medical examination (or the re-fixed medical examination), his right to compensation will be suspended until such medical examination can take place. The employee would need to ensure that he could comply with the request for medical examination within 15 days from the date of the “missed” appointment otherwise the right to compensation will be extinguished (see the Cheung Sau Lin case) unless the court is satisfied that there is reasonable cause of such failure (s.16(4)); and

f. S.16(3)(a) does not specify when the employee should notify the employer of the medical opinion in order to re-fix the medical examination, but when read with s.16(4), it must be that the employee would need to notify such no later than 15 days after the “missed” medical examination unless there is reasonable cause of such failure.

22.I think this is entirely consistent with the “protective” mechanism accorded to the employer as mentioned in the Cheung Sau Lin case: the objective of the Ordinance is to provide a simple and expeditious “no-fault” scheme to compensate a genuinely incapacitated employee, but as long as the employer is making such payment, he is entitled to require the employee to be medically examined from time to time. Such requests must be strictly complied with by the employee either by attendance on the dates of the appointment or the re-fixed appointment, or otherwise complied with within 15 days after such dates (unless there is reasonable cause of such failure to comply within 15 days).

23.Miss Debora Poon, counsel for the Applicant (“Miss Poon”) argued that the sick leave certificate was sufficient to provide evidence that the Applicant was unable or not fit to attend the 1^st Examination.

24.I disagree.

25.Firstly, the fact that the Applicant was able to attend one doctor for sick leave and yet could not attend another for medical examination on the same day must be highly suspicious (see the Cheung Sau Lin case).

26.Secondly, (also stated in the Cheung Sau Lin case) the sick leave certificate is at most an opinion that the patient is not in a fit state to work, it is very far from being an opinion explaining why the Applicant was unable or unfit to attend even a medical examination.

27.Indeed, as Mr. Ho rightly argued, if a mere sick leave certificate was adequate evidence that the employee was unable or unfit to attend a medical examination, then by definition, no employee receiving periodic payment would be able to attend a medical examination because in order to be entitled to the periodic payment, the employee was on sick leave in the first place.

28.In my view, to satisfy the requirement of s.16(3), the attending practitioner would need to provide, at the very least, a list of all the symptoms, signs and investigation results detected during the consultation and a full explanation of how those findings support the opinion that the patient’s condition was so serious as to render him unable or unfit to attend a medical examination in a clinic at a reasonable time and place.

29.Miss Poon also suggested that a medical examination “would no doubt take longer and be more physically taxing” than a normal consultation. This submission is clearly inappropriate: under s.16(3), it is for the practitioner, and not for the counsel nor the Applicant, to provide an opinion as to why the Applicant was unable or unfit to attend a medical examination. Further, there is clearly a big gap between doing something that is physically taxing (e.g. going for a jog), and doing something that one is physically unable to do (e.g. running a marathon in a World Record time).

30.As mentioned during the hearing, I could only envisage very few examples when a patient could not physically attend a doctor’s clinic: he might still be in hospital, he might be in a coma, or he might be so ill that he literally could not get out of bed etc.

31.Of course, in the last example, if the Applicant was so ill that he could not get out of bed to attend a clinic, one would expect that he would have already called an ambulance to be admitted to a hospital for treatment.

32.Of course, if the Applicant was actually suffering from such dire disabilities, there would be no problem to obtain a medical opinion to explain why he was unable or unfit to attend the medical examination.

33.Clearly, the Applicant did not even pass the first hurdle of being able to seek a re-fixing of the 1^st Examination under s.16(3).

34.The fact that QBE wrote the 2^nd QBE Letter regarding the 2^nd Examination should not be viewed as a “re-fixing” of the medical examination under s.16(3). No “re-fixing” is required under the law unless the Applicant satisfied the two conditions mentioned above.

35.As such, the court need not consider the factual dispute of whether the Applicant was properly notified of the 2^nd Examination as required under S.16(3)(b)(ii) for a re-fixed medical examination. (Of course, if the court needs to do so, with the Applicant’s bare denial weighed against the contemporaneous records provided by the respondent, the court would find, on balance on probability, that the Applicant did receive the 2^nd QBE Letter.)

36.Instead, as Mr. Ho submitted, the 2^nd Examination should be seen as another medical examination which the Respondent was entitled to request for from time to time under s.16(1A). Indeed, it is more like a generous gesture from the Respondent, perhaps giving the Applicant the benefit of the doubt and allowing another chance for a medical examination.

37.Nevertheless, the mere fact that the Applicant failed to attend the 1^st Examination would be enough to activate s.16(4). Accordingly, it was for the Applicant to ensure his compliance with the request for medical examination within 15 days, i.e. before the deadline of 31 March 2020. If the Applicant did not receive the 2^nd QBE Letter as he claimed, he should be even more alerted that he must take his own initiative to ensure compliance.

38.The Applicant has the 1^st QBE Letter so it would have been easy for him to contact QBE. If he has done so immediately on 16 March 2020 (when he was first aware that he could not attend the 1^st Examination) or soon after, but could only obtained a date of medical examination after 31 March 2020, and if he did attend that appointment, then this might have been a reasonable cause for such failure under s.16(4) for his right of compensation not to be extinguished.

39.Alternatively, if the Applicant would notify the Respondent (or QBE) with a medical opinion explaining that he had been so unwell for so long that he was unable or unfit to attend a medical examination until after 31 March 2020, then again this might have been another reasonable cause for such failure under s.16(4). Of course, no such opinion was provided by the Applicant even up to now, some 3 ½ years after missing the 1^st Examination appointment.

40.As it happened, the Applicant did not do anything until he returned to the Respondent’s office on 9 April 2020 seeking further periodic payment. Even if he had been really been quite sick for that one day on 16 March 2020 (Dr. Lung only gave 1 day of sick leave), the Applicant gave no reasonable explanation as to why he failed to contact the Respondent (or QBE) after he recovered from his Upper Respiratory Tract Infection presumably very soon after.

41.Ignorance of the law is clearly not an acceptable defence: the Applicant was aware he has been receiving compensation every month since December 2018, he was aware of the 1^st Examination but decided not to attend, and he was aware of the contact details of QBE and the Respondent but decided not to contact them until some 24 days after missing the 1^st Examination (and even on that occasion, he was only returning to the Respondent’s office for his monthly periodic payment).

42.Therefore, the Applicant’s failure to attend the 1^st Examination under the circumstances was already enough to extinguish his right for compensation from 16 March 2020 and, as such, is reflected in the Order of this court.

Miss Debora Poon, instructed by Messrs Yu & Associates, assigned by the Director of Legal Aid Department, for the applicant

Mr Leon Ho, instructed by Messrs Winnie Mak, Chan & Yeung, for the respondent