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By Debbie Fordyce
By the time injured workers with work injury compensation claims appear before TWC2, most have already engaged a law firm. Legal advice and assistance is unnecessary since the Work Injury Compensation process is a no fault process. So, why do so may engage lawyers, and why do so many stick with their lawyers once they realise it’s neither necessary nor advantageous?
If all goes well after a workplace accident, a responsible employer files an incident report (under the Work Injury Compensation Act, WICA), allows the worker access to medical treatment, continues to provide the worker with housing and meals, and pays the injured worker’s medical leave wages on a timely basis. When this happens, injured workers have no need to leave the company dormitory and seek TWC2’s services or advice.
Given that TWC2 assists over a thousand injured men each year —providing meals, help to access medical treatment, funds for urgently required treatment, bus cards, or housing — some workers face an unanticipated experience.
The most immediate and frightening prospect for an injured worker is his employer’s attempt to repatriate him. The vast majority of injured men seeking help from TWC2 say that their company planned to send them home before they had completely recovered from their injury. Sometimes the repatriation attempt is accompanied by a sweetener — a sum of money to pay for treatment in the worker’s home country and a promise of continued employment upon their recovery. If the injured worker is unwilling to return home prematurely, he is compelled to leave the company dormitory for his own safety and security. Besides seeking medical care, the injured worker will now also have the burden of arranging for his own food and housing.
A small group of law firms is ready and willing to provide support and file work injury compensation claims (“WICA claims”) for workers in these situations. With law offices conveniently located for migrant workers —near hospitals, Little India, and the MOM offices in Chinatown or Bendemeer — the legal assistants and their hired touts know how to spot injured men and rope in new clients.
Filing work injury compensation claims is a relatively simple process that the Ministry of Manpower (MOM) says does not require a lawyer. What prevents workers from filing these claims themselves? Ignorance of the process, the physical difficulty of travelling to the MOM when injured, and the genuine fear that the employer will attempt to confine the worker and repatriate him before he has a chance to report the injury and file his claim.
MOM provides some guidance at orientation briefings when the worker first comes to Singapore. Most employers and dorms provide little, if any, information about the work injury compensation process. The MOM has produced useful pamphlets in several languages (links below) informing workers that they can file online without legal assistance. However, this information is of limited use to workers with no access to the internet and without the information required to complete the process. When a worker is injured, he is not likely to find MOM pamphlets in the emergency departments. Many doctors are inadequately informed about the work injury claim process, often assuming that the injured man’s supervisor or employer has the patient’s best interest at heart.
Here’s where the law firms’ legal assistants step in and make a lucrative business filing claims for injured workers. The legal assistant, who is often from the worker’s home country, finds the worker, and is not limited to office hours. He knows how to persuade the worker that legal assistance is essential to guarantee the highest possible compensation amount. The Bangladeshi and Indian legal assistants speak in the injured worker’s own language and often refer to connections with the man’s own village or district, creating a sense of brotherhood, obligation and gratitude. During the worker’s first contact with the law firm, he may be told that the legal fees will be a percentage of his final compensation amount, with additional charges for meetings with the employer. Quite often the injured worker is too intimidated, anxious and bound by loyalty to ask further about the fees or the services.
Leaving the employer’s dormitory puts the worker in a precarious position of having to source his own food and lodging. Many workers have friends staying in dorms that can be accessed by outsiders but rarely for a long time. Some legal assistants from the law firms listed above rent rooms in Little India to house their clients. This provides an essential service for men fearful of repatriation and denied support from the employer, and it’s a highly profitable side business for the legal assistant. The offer of housing makes the worker even more reliant on the legal assistant. His monthly rental fees will be deducted from his future work injury compensation.
Injured workers regularly ask TWC2 volunteers to accompany them for their medical appointments and to assist with the work injury compensation claim. TWC2 is limited in the assistance we can give if the worker has a lawyer. But we often hear injured workers say that their lawyer does nothing. That does appear to be the case, given the regularity of injured workers’ complaints about not receiving the medical leave wages, unpaid hospital bills, and lack of meaningful support at MOM meetings.
Where the law firms do take action is in pressuring their client to withdraw the WICA claim to pursue compensation through a suit in the civil courts (“common law case”). The common law process is not overseen by the MOM, may possibly yield a higher compensation amount, but the process is not transparent and workers fear, justifiably, that their lawyer will extract a larger but unknown portion of the amount.
Once an injured worker signs on with a law firm, the lawyer is his legal representative, and it is the lawyer or the legal assistant (not the worker) who deals directly with MOM. As an injured worker learns about the work injury compensation process, he often tries to speak up about his situation —asking for his MC money to be paid or for medical care to be given — but finds his attempts frustrated because it is his lawyer who must speak for him.
Workers are often reluctant to discharge their law firm due to fear that the legal assistant will “cause problems”. The legal assistant may retain the passport; he knows where the man’s family lives and how to reach them; he often retains the medical certificates rather than sending them regularly to the employer, and he provides scanty or no information about the progress of the case. All of this puts the client in a hazardous and unpredictable situation, and allows the legal assistant to take advantage of the client’s dependence and ignorance. It’s distressing to think that fear of negative consequences is what binds the client to his lawyer, rather than confidence that the law firm will do its best to serve the client.
Most WICA claims — at least those cases seen by TWC2 — do result in compensation for the victims. The workers we assist who are compensated receive an average of $11,500 for permanent incapacity compensation, not a sum to sniff at. The legal assistant usually asks their clients for between 10% and 15% of the compensation amount.
Charging a percentage of the compensation amount is not legal. In the example above, the compensation was close to $16,000. The firm provided no explanation of the discrepancy between the $2000 in figures and the $2500 in words below that, nor an indication of time spent on each task. It should be noted that the list of actions and services mentioned in the invoice are those provided free of charge by the MOM and organisations such as TWC2.
Workers expect to work at least the full term of their work permit —one or two years— and hope to work longer. Two years of work is often necessary to repay initial recruitment costs. Given that the employer is able to terminate the worker anytime and without cause, many employers rely on repatriation as a way to avoid the costly business of medical treatment and housing of a non-working man. For the injured worker, filing an injury compensation claim allows him to remain in Singapore for treatment and compensation, and avoid returning empty handed and humiliated to his family who borrowed heavily to finance the job. If the MOM were able to ensure that employers provided for their injured workers and allowed them to return to their jobs after the injury is healed, or if workers were able to switch companies and continue working once their medical leave is over, there would be fewer insurance claims for minor injuries. If the MOM could relieve employers of the obligation to pay the levy while the worker is unfit to work, employers would be less inclined to cancel work permits.
MOM could be more proactive in reaching out to workers in dorms, hospitals, and in areas frequented by the workers. For example, carparks in Little India are often used for commercial stalls and service providers. A stall manned by MOM at this location — to instruct workers about the WICA claim system and assist men with discharging their law firms — would encourage more injured workers to deal directly with MOM rather than entrust their case to legal assistants.
Screenshots from MOM’s pamphlets:
A Guide for Employers – WORK INJURY COMPENSATION
A Guide for Employees (English) – WORK INJURY COMPENSATION
A Guide for Employees (Bengali) – WORK INJURY COMPENSATION
TWC2 is an organization that is dedicated to assisting low-wage migrant workers when they are in difficulty. We are motivated by a sense of fairness and humanity, though our caseload often exceeds our