Procedures for Handling Work Injury and Fatal Accident Cases Under the Employees Compensation Ordinance (Chapter 282, Laws of Hong Kong) Employees Compensation Division Labour Department 23 February 2012 1
Agenda 1. Overview of the Employees Compensation Ordinance (ECO) 2. Settlement of an EC case 3. Points employers should note 2
Part 1 Overview of the Employees Compensation Ordinance 3
Individual id Employer s Liability Compensation payable (1) by the employer if (2) his employee (3) sustains an injury or dies (4) as a result of an accident (5) arising out of his employment and (5) in the course of his employment, or, contracts an occupational disease prescribed in Schedule 2 to the ECO. (except Pneumoconiosis, Mesothelioma and Occupational Deafness) 4
Injury by Accident Whether or not an injury is sustained by accident is a mixed question of law and fact to be decided by court. It is not an injury by accident if there is a continuous process going on substantially from day to day, which gradually over a period of time produces incapacity. 5
Injury by Accident (2) Deeming Clause (a) Under S.5(4): Travelling as passenger to and from place of work in employer s transport; Driving direct to and from place of work in employer s transport in connection with employment; Travelling to and from place of work during gale warning/rainstorm warning; Travelling by permitted transport between Hong Kong and any place outside Hong Kong or between any such places. (b) An accident arising in the course of an employee s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment (S.5(4)(a)) 6
No-fault Compensation An employer is generally liable to pay the statutory compensation even if the employee might have committed acts of faults or negligence when the accident occurred. The employee does not have to show fault on the part of the employer to claim statutory compensation. 7
Compulsory Insurance Cover Employers are compulsorily required to take out insurance policies to cover their liabilities both under the ECO and at common law in respect of work injuries sustained by their employees. 8
Rights of employers An employee who has given notice of an accident shall submit himself to a free medical examination named by his employer. An employee who is receiving periodical payments from his employer shall also submit himself for free medical examination named by his employer. If an employee fails to submit himself for such examination, his rights to compensation shall be affected (S.16). 9
Part 2 Settlement of an EC case 10
Litigious i Route Settled by adjudication at the District Court ECO allows an employee to sue for common law damages if his injury is caused by the negligence or wrongful act of the employer (or third party); The damages awarded, arded if any, shall be reduced by the value of the statutory compensation paid or payable under the ECO Time limitation it ti : Statutory compensation under ECO : 24 months Common law damages for personal injuries : 36 months 11
Administrative i ti Route Settled by the Labour Department (a) by Direct Payment (b) by Direct Settlement (c) after Medical Clearance ( Form 5 ) (d) after Medical Assessment ( Form 7 then Form 5 ) (e) Fatal Cases: Determination by CL ( Form (Form 21 ) Payment by employer in 21 days, otherwise surcharge payable and offence committed. Form 5 = Certificate of Compensation Assessment Form 7 = Certificate of Assessment Form 21 = Certificate of Compensation Assessment for Fatal Case 12
Reporting of Work Accidents Employer should advise employees ees to report work accident asap (refer to Points to Note for Employees Injured at Work ) Employer should notify Commissioner for Labour of work accident within 14 days (7 days for fatal cases), all internal reporting time inclusive Reporting is mandatory irrespective of whether the accident or the occupational disease gives rise to any liability to pay compensation. In case of disputes, provides details. Lau Kwok Chiu v. Senfield Ltd t/a Tsui Wah Restaurant HCPI 245/2006 : The Court found that contents in the Form 2 are not to be regarded as admission in the legal sense so E/R is not bound by it or estoppel from denying it. 13
Reporting of Work Accidents (2) Reporting of fatal cases/injury cases with >7 days sick leave or permanent incapacity Part D FORM 2 EMPLOYEES COMPENSATION ORDINANCE Description of Accident 1. Describe how the accident happened and state what the employee was doing at the time (Note 4) 2. State whether the accident occurred in the course of work (Yes or No) *** 3. Date of accident 4. Time of accident 5. Result of accident (Death or Injury) 6. Address of the place of accident 7. Name of hospital/clinic where the employee received treatment Note 4 : Describe how the accident happened, state what the employee was doing at the time and give details of how the accident happened, e.g. what work was the injured doing, what factors (directly and indirectly) leading to the accident, and how he was injured, etc. 14
Settlement of EC Claims (a) Sick Leave = 3 days or less and with no permanent incapacity: By direct payment Employer should report in Form 2B FORM 2B Employees Compensation Ordinance (Cap 282) Section 15(1A)(b) NOTICE BY EMPLOYER OF AN ACCIDENT TO AN EMPLOYEE RESULTING IN INCAPACITY FOR A PERIOD NOT EXCEEDING 3 DAYS 15
Settlement of EC Claims (b) Sick Leave = more than 3 days but not more than 7 days and no permanent incapacity: By direct settlement Employer should report in Part H of Form 2 FORM 2 Employees Compensation Ordinance NOTICE BY EMPLOYER OF THE DEATH OF AN EMPLOYEE OR OF AN ACCIDENT TO AN EMPLOYEE RESULTING IN DEATH OR INCAPACITY H. Direct settlement Period of sick leave Amount of compensation: from to $ paid Total number of sick leave days to be paid on 16
(c) Form 5 after medical clearance The injured employee should start visiting OMU (Occupational Medicine Unit) of LD for medical clearance normally one month after the injury. The nurses and supporting staff in OMU would monitor case progress, vet and record sick leave certificates, call medical reports where in doubt and tender advice until the case is cleared. For general injury cases, ECD would issue Certificate of Compensation Assessment (Form 5) after medical clearance. Payment by employer in 21 days, otherwise surcharge payable and offence committed. 17
(d) Form 5 after Form 7 (medical assessment) If OMU considers that the injury may result in permanent incapacity, the injured employee would be arranged to attend OAB. Maximum Medical Improvement (MMI). Employees Compensation Assessment Boards are set up under ECO in 16 HA hospitals to assess (a) period of sick leave necessary and (b) percentage of permanent loss of earning capacity caused, according to the First Schedule of the Ordinance. S.9(1) provides that in the case of injury not specified, the percentage shall be assessed having regard so far as possible to the First Schedule. OAB would then issue Certificates of Assessment (Form 7), which shall be admitted in evidence without further proof on its production in any court. ECD would issue Form 5 afterwards. Employer to effect payment within 21 days to settle the claim; otherwise surcharge payable and offence committed. 18
(e) Fatal Cases Compensation for death shall be payable to members of the family (e.g. a spouse or cohabitee, a child, a parent, etc.) of a deceased employee as defined under s.3 of the ECO. Determination by the Commissioner for Labour : If the employer and all parties to the claim have agreed, and the case is suitable for determination, CL shall issue the relevant certificate (Form 21, etc) to all applicants and the employer. Determination by Court : If the case is not suitable for determination or the parties do not agree to submit the claims for CL s determination, the claimants may lodge their claims with the Court within 24 months.
Part 3 Points-to-note for Employers of the Construction Industry 20
Common Issues : Employer? Contractor t? EC insurance? Boundary of Work Place Injury real? Accident arising of employment? Accident in the course of employment? Evidence available? Evidence reliable? 21
Points to note : To establish in-house work injury management system To take out immediate investigation To preserve evidence To secure written statements To conduct interviews To record every details To fetch relevant documents To seek advice of insurer/lawyer To work hand-in-hand with LD long battle It would be a 22
Proposed flowchart for handling suspected work injury cases by employers 23
http://www.labour.gov.hk/eng/public/ecd/pco360.pdf 24
http://www.labour.gov.hk/eng/public/ecd/employeesinjuredatwork.pdf 25
Each case would depend on its own circumstances Evidence and details are most essential 26
Thank you 27