By Personal Injury Department

Hong Kong, 16 March 2021: A recent District Court judgment has reinforced the legal principles governing the recovery of medical expenses under the Employees’ Compensation Ordinance. In particular, the case offered guidance for recovery of medical expenses incurred following the period of sick leave granted by registered medical practitioners.

By way of background, Section 10(2) of the Employees’ Compensation Ordinance (the “Ordinance”) defines sick leave as “a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury”.

The starting point for recovery of medical expenses is provided under Section 10A of the Ordinance, which states that “if, in any employment, personal injury is caused to an employee by accident … arising out of and in the course of his employment his employer shall be liable to pay the medical expenses for the medical treatment in respect of such injury”.

In the latest District Court case, Huen Cheong Lam v J.V. Fitness Limited (in Liquidation) (DCEC 810/2016) – concerning a personal trainer who claimed he was injured while assisting a client during weight training – the applicant made a claim to recover those medical expenses incurred after the expiry of his sick leave.

In the judgment, His Honour Judge Herbert Au-Yeung commented that there is no hard and fast rule that an employee’s claim of medical expenses under section 10A of the Ordinance may not necessarily include those incurred beyond the sick leave period. He held that “so long as the employee can satisfy the court that the medical expenses incurred are necessary and reasonable for medical treatment in respect of the injury which is caused to the employee by accident arising out of and in the course of his employment, the employer should be liable to pay such expenses, even though such medical expenses are incurred after the expiry of sick leave (emphasis added)”.

In assessing the period of sick leave under section 10 of the Ordinance, the Court is not strictly bound by those sick leave certificates granted by the registered medical practitioners. However, Judge Au-Yeung further commented that it is still important to give “… due weight to the decision of the treating doctors who had decided to grant sick leave to the applicant because they had the advantages of seeing and assessing the applicant at the material time”.

In addition, it is important to note that the conduct of the injured employee could affect whether such medical expenses incurred outside of the sick leave period are recoverable.

In the same judgment, even though the Court had endorsed the duration of sick leave granted to the applicant, it also found he had exaggerated the extent of his injury. Due to the applicant’s malingering behaviour, the Court robustly disallowed his claim for further medical expenses incurred after his sick leave, stating that such expenses were “unnecessary and unreasonable”.

By this judgment, we can see that in employees’ compensation claims, even if the medical expenses incurred are arising out of the accident in question, the Courts would still give consideration to various factors and are not obliged to allow recovery of those medical expenses which were incurred beyond the reasonable sick leave period endorsed by the Courts.

If any advice or assistance is needed, please contact our Insurance & Personal Injuries Department:

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Email: teddy@boasecohencollins.com