The new Work Injury Compensation Act (WICA) 2019 makes a major departure from the old law. It entrusts the processing of claims to insurers. Much now depends on the Code of Practice that insurers have to abide by to ensure equitable handling of claims.
The Ministry of Manpower (MOM) has argued that insurers process virtually all other kinds of claims; there should be no reason why they cannot fairly process work injury claims. This is a beguiling argument on the surface, but with workplace injuries there is a key difference. With fire, flood or life insurance, the fact of something happening is usually impossible to dispute. Either there was a fire or a flood or there was not. Either there was a death or there was not. But with work injury insurance, it isn’t simply a matter of whether there was an injury or not. The claim is only admissible if the injury arose in the course of work. And this is where things can get very muddy.
Most employers act with integrity. When an accident happens, they report it, leaving in no doubt that the worker’s injury was work-related.
However, TWC2’s observation is that there is a minority of employers who try their darned best to deny that an accident happened at the workplace. There may be many different motivations for doing so, including an attempt to avoid scrutiny of their lackadaisical poor safety precautions.
Under the old Work Injury Compensation Act (WICA), when MOM was in charge of determining the admissibility of a claim, it was hard enough. Employers might drag their feet in providing reports, or make fictitious claims altogether. Other workers who might have witnessed the accident could be induced to lie to MOM’s safety inspectors. Being foreign workers themselves with Work Permits that can be cancelled at will by their employer and faced with the reality that they’d have to pay thousands of dollars to secure another job, they can hardly resist an employer’s demand to lie to MOM. TWC2 has seen many cases where the investigation as to the validity of a claim dragged on for months and months.
How insurers are going to do any better is a huge unknown, especially as insurers do not have the statutory investigating powers that MOM officers have.
Delay in establishing validity has serious ramifications for injured workers. The law rightly intends that injured workers should be provided with appropriate diagnosis and medical care, and that they should receive their medical leave wages in a timely manner. With respect to the latter, it specifically says that medical leave wages should be paid on the usual pay day of salaries, which cannot be spaced out for longer than a month.
But if the question of validity remains unresolved, then are the workers even entitled to medical care and medical leave wages under this law? This law, after all, is called the Work Injury Compensation Act. If it’s not yet ascertained to be a work injury, does the law kick in?
TWC2’s casework experience clues us the answer. We’ve observed that MOM is very reluctant to press employers to provide medical care, especially if costly and if doctors do not state unequivocally that it is “immediately and medically necessary”. Medicine is an art. Medical and trauma conditions can often be handled in several different ways — albeit with different likely outcomes. Doctors are therefore understandably conservative about using terms like “immediately and medically necessary” save in life and death situations. An operation may be strongly indicated to fix a broken leg, but is it immediately and medically necessary? The man might not die if not operated on. He’ll just be a cripple. Should a doctor say the operation is immediately and medically necessary?
Bureaucrats demand black and white answers from doctors before they’d act. Doctors know that in their profession, black and white are often shades of grey. Into this gap falls the injured worker who often gets less treatment than he should.
Why don’t doctors go ahead anyway with whatever treatment they deem best? Alas, hospitals in Singapore have to watch their bottom lines. Whenever the diagnostic procedure, surgery or treatment is costly, hospitals want Letters of Guarantee (of payment) from employers before they go ahead. Some employers kneejerkedly refuse to provide such Letters of Guarantee. The worker appeals to MOM, but then MOM may say that the validity of the claim is not yet established, so they cannot invoke the provisions of the law to compel the employer to do so. The humanitarian intent of the law is thus defeated.
Likewise with medical leave wages. The law says injured workers should be paid not less frequently than monthly. But if validity is not yet established, TWC2 has observed that MOM does not compel employers to pay on time. Yet another intent of the law is defeated. Workers, injured, in pain, are left penniless.
A real example
To illustrate the conundrum, we’ll cite the case of Amin (not his real name). He was a Bangladeshi construction worker whose job involved steel rebars and precast concrete. He tripped and fell in November 2017 while at work, landed badly and hurt (a) his back and (b) his right hand. Amin lodged a WICA claim soon after the accident, but the employer denied that it took place at work and thus not be admissible under WICA.
Right up to February 2019 (about 15 months after the accident), MOM treated the case as one of uncertain validity. In those months, the worker struggled to get diagnosis (which needed a fairly expensive procedure called MRI) and appropriate medical treatment (“appropriate” being dependent on the diagnosis). Our internal casework notes spoke time and again about how the man was shuttled between the hospital and MOM. In general, all efforts were futile. We saw the usual reluctance of MOM to press the employer to provide a Letter of Guarantee when the validity was in dispute.
The distress caused to the worker was immeasurable. The way pain was prolonged was inhumane. The way the Amin’s family was left without a breadwinner for 17 months while bureaucracy dawdled over the question was disgraceful. This long delay is itself a bad process, because often evidence and witnesses might have disappeared — or been tampered with — in the interval.
But here’s the thing: MOM finally concluded its investigation into the circumstances of the accident in February 2019 and ruled that the accident was work related. The worker was right at all the time. Was the prolonged suffering and distress fair to him? Was the employer untruthful all this while?
Amin was awarded compensation in March 2019.
More than 20% of the WICA claims that TWC2 assists with have validity unsubstantiated for a period of time, some for many months and beyond a year like Amin’s case. During this time those workers would either need to pay for their own treatment, or forego treatment until the validity is established. Of course, some of the injuries eventually turn out to be unrelated to work, but they’re a minority. Slightly over 70% of the cases we flag as ones caught in limbo are ultimately ruled as work-related. That’s a lot of workers put through unnecessary stress.
If MOM has such difficulty sorting out truth from (employers’) denial, will insurers do any better? We shall see, but frankly, we at TWC2 have little reason to be hopeful.