Rahman Khalilur (second from right) with his wife, mother and brother
When Rahman Khalilur asked TWC2 to help with his work injury case, he had already lost. The Ministry of Manpower’s Assistant Commissioner for Labour (ACL) had held a hearing in April 2019 and determined that no accident had occurred. That meant that the moderate permanent disability which doctors assessed Khalilur to have suffered would not entitle him to compensation.
How is it that a man can be found to have suffered permanent disability and yet have an ACL rule that no accident occurred?
That’s how the system works, and Khalilur’s case is instructive.
The good news however is that after TWC2 took on his case and Melvin Chan from law firm TSMP Corp agreed to represent Khalilur pro-bono, the decision was reversed on appeal. Khalilur finally got his compensation (and was also awarded costs).
Rahman Kalilur was employed by Hua Teng Builders Pte Ltd at the worksite of the upcoming Napier metro station on 28 March 2018 when he fell some distance and hurt his back. He was then working underground but up a monkey ladder. After falling, he was lifted up to the ground level in a basket and then taken on a stretcher, still unconscious, to the nearby Gleneagles Hospital.
The site supervisor Cao Xiangsheng would later give evidence that “The doctor of the nearby hospital had informed the main-contractor that [Khalilur] was suffering from a flu and cold.”
However, the hospital had no record of Khalilur as a patient and this absence of record indicates that Khalilur was not seen by a doctor or treated. Why that was the case is unclear, though a TWC2 volunteer’s notes indicated that a hefty deposit was asked for and perhaps the employer baulked. Cao himself waited outside the hospital, so it is strange that he could assert that he had come to know from a doctor the diagnosis.
Khalilur was then driven to ECM Clinic in Geylang Lorong 25A — a general practitioner’s clinic. There the Chinese driver did all the talking to the doctor, in Mandarin.
After the hearing, the ACL would record in his written grounds of decision that
It was subsequently established when [Khalilur] was brought to see the company doctor that same afternoon, [Khalilur] was diagnosed as having flu and cough and did not suffer any lower back injury at all on 28 March 2018 as [Khalilur] had claimed.
Still in pain the next day, Khalilur made his own way to a polyclinic and thereafter to Changi General Hospital to seek treatment for his back. Now speaking to doctors for himself, he told every doctor he saw that the pain came from falling while at work. All the doctors recorded this explanation without demurral, indicating that the medical professionals considered the injury to be consistent with such an explanation.
An MRI scan done at the hospital confirmed that Khalilur had suffered a “mild disc bulge at L4-5 with annular fissure and mild left exit foramen narrowing.”
From the documents submitted to court, it appears that the employer did not file an accident report with the authorities. The ACL would later rely on this in his Grounds of Decision (ruling that no accident occurred), saying that
there was no report of the accident and neither was the principal of the project, the Land Transport Authority (“LTA”) notified or informed of the alleged accident.
The ACL seemed not to have realised that if the employer was intent from the very beginning on denying that an accident had occurred, it would be entirely self-defeating to file an accident report. The absence of a report is thus open to more than one interpretation.
Case went south
Rahman Khalilur registered with TWC2’s Cuff Road Project, our free meals programme, on 6 August 2018, about four months after the accident. He told us that he had engaged a lawyer to help him file a work injury claim under the Work Injury Compensation Act (WICA) and in such circumstances, it is TWC2’s policy not to be involved in his case to avoid giving him conflicting advice.
For the next ten months, Khalilur was thus largely on his own with his chosen lawyer to help him.
WICA cases often proceed on parallel medical and administrative tracks. Khalilur’s case was no different. The medical track comprised treatment and, at the end of that, an assessment of the degree of permanent residual disability. In May 2019, he was assessed to have suffered “15% disability” and a compensation of $20,820.20 was proposed.
On the administrative track however, the employer and the employer’s insurer objected to the validity of the entire claim, saying no accident occurred.
This culminated in an April 2019 hearing before the ACL Han Cher Kwang who, a month or so later, ruled in the employer’s and insurer’s favour. In the written Grounds of Decision (released September 2019), he said,
… I took the view that on balance, there was no accident in the first place and dismissed the Claimant’s claim. I also ordered costs in the sum of $1,000 to be paid by the Claimant to the Respondents.
Khalilur had to pay his employer and the insurer $1,000.
There were substantial areas of difference between Khalilur’s version of events and that of the employer’s and insurer’s (“Respondents”). Chief among these were:
Where Khalilur was working when the incident happened
Kahlilur said he was up a monkey ladder inside a tunnel. But the employer said he was not there since Khalilur had been assigned housekeeping work at another location. In support of this, three supervisors testified for the Respondents.
How Khalilur fell
Khalilur said his safety harness got caught on a rebar while he was some way up a monkey ladder, though there was also some mention of a leg getting caught too. The ACL said that Khalilur and his two co-worker witnesses (who were working alongside him) gave inconsistent accounts of the details. There were, for example, varying estimates of the distance he fell, ranging from 1.5 metres to 5 metres.
Missing safety harness
The ACL also noted that the photograph taken of an unconscious Khalilur (after he had been lifted to ground level) showed him only wearing a reflective vest and not a safety harness. Also, he did not have a helmet on, something that would be mandatory if he had been working at height as he claimed he was.
Rahman Khalilur after he was lifted from the underground tunnel to the surface on the day of the accident
Whether Khalilur suffered an injury
Kahlilur said he suffered a back injury. Respondents however suggested that he was suffering from a flu and cough — though, as would be pointed out later by Khalilur’s lawyers at appeal, no credible evidence for this was presented.
Unhappy with the ACL’s decision, Khalilur finally approached TWC2 for help. Together with lawyer Melvin Chan from TSMP Corp, we reviewed the merits of this case and filed an appeal at the High Court, which turned out to be successful.
We would quote extensively from the written decision of the High Court if there was one. Unfortunately, as far as we know, there isn’t; the appeal decision was delivered orally.
Seeing how the judge found in Khalilur’s favour, in the absence of a written judgement, we may refer to Khalilur’s lawyer’s submission to see how the various points in the ACL’s June 2019 decision were overturned.
Essentially, the thrust of the appeal was that the ACL drew inferences that were poorly founded on the evidence before him. Khalilur’s lawyer’s submission said:
… the ACL took into account irrelevant considerations and failed to take into account relevant considerations.
TWC2 volunteers in the courtroom where the hearing was held and decision delivered (on 27 March 2020 — one day before the second anniversary of the accident) recall that Justice Lee Sieu Kin focussed on getting to the “big picture” of the circumstances. At times he wondered aloud about the relevance of some of the factors the ACL had considered (e.g. the height of the fall, the mechanism of the fall, e.g. whether the worker fell backwards because his safety lanyard was caught in the monkey ladder/scaffold, or whether it was the front of his vest that was caught, etc…). Justice Lee Sieu Kin eventually came to the conclusion that “the ACL had misapprehended the facts of the case”, which clearly showed there was an accident at the workplace which caused the worker’s injury.
Where Khalilur was working when the incident happened
Khalilur said he was up a monkey ladder working at formwork inside a tunnel. The Respondents’ version was that Khalilur was not even at that location but that he had been assigned to do housekeeping. The ACL, in arriving at his decision, gave more credence to the Respondents.
However, Khalilur’s lawyer argued that
… it is difficult to see how the ACL could conclude that the Respondent’s 3 witnesses were reliable.
Site Supervisor Cao Xiangsheng was not a truthful witness, said Khalilur’s lawyer’s submission. Cao’s testimony was contradicted at key points by Respondents’ other witnesses.
- Cao said he was in charge of deploying Khalilur (thus that he deployed Khalilur to do housekeeping).
- Another supervisor, Biswas Himangsu, said that another supervisor (Al Amin) was in charge of assigning work to Khalilur, not Cao, in Al Amin’s capacity as the day shift Safety Supervisor. In this, Biswas corroborated Khalilur’s version.
- Cao said that Biswas Himangsu was the day shift Safety Supervisor.
- Biswas said he was not; he was the night shift Safety Supervisor and he was not even on duty at the material time.
Biswas said he heard about the incident from Al Amin, and that Al Amin told him Khalilur had fallen from height.
Khalilur’s lawyer pointed out that the one supervisor who Khalilur said assigned him the work in the tunnel (named Al Amin) was “conspicuously not called” to give evidence for the Respondents, even though Al Amin was still employed by the same employer at the time.
In any case, Biswas and Wang Hui, the third witness for the Respondents, had no direct knowledge that Khalilur had been assigned to do housekeeping, the submission pointed out.
… they were only made aware that [Khalilur] was doing housekeeping works because they had allegedly been informed by Al Amin. Al Amin was not called to give evidence.
Further on in the submission,
… it is significant that the evidence of each of the Respondent’s 3 witnesses that the ACL has relied on, is either contradicted by another of the Respondents’ witnesses, or is hearsay evidence which the Respondents’ 3 witnesses have no direct knowledge of.
In contrast, the evidence by Khalilur and his witnesses
… is more reliable given that they were consistent in describing their work environment.
How Khalilur fell
Khailur had two witnesses working near him in the tunnel who testified that he was up a monkey ladder and fell from there. As for why their accounts differed slightly in the details, Khalilur’s lawyer’s submission argued:
The ACL also found that there were discrepancies between the recollections of [Khalilur] and his witnesses in respect of the details of the accident, including the description of the ladder, the height at which [Khalilur] fell and the cause of [his] fall. However, we submit that the apparent discrepancies noted by the ACL do not suggest that [Khalilur’s] evidence is unreliable but can just as easily be explained when viewed in the context of the accident and the circumstances under which it took place.
Indeed, as any reader would understand, an accident, which by its very nature is an unexpected event, is not normally one where eyes are trained on the scene waiting for the event to happen. That subsequent recollections of the scene and the exact sequence of split-second events differ somewhat would hardly be unusual; in fact too much uniformity in accounts might be viewed as suspiciously engineered.
Missing safety harness
That the ACL in his Grounds of Decision mentioned the fact that the photographs of an unconscious Khalilur showed him wearing a reflective vest rather than a safety harness indicates that this factored into his reasoning for why he found Khalilur’s version unreliable. Khalilur’s lawyer’s submission pointed out that the photographs were only taken after Khalilur had been lifted out from underground, and countered the ACL’s conclusion thus:
… the ACL found that [Khalilur] was wearing a reflective vest (and not a safety harness) when he was stretchered out of the working area, and therefore concluded that he could not have been working from height. The ACL has clearly conflated two separate items, as the reflective vest and safety harness are not mutually exclusive. [Khalilur] has given evidence that all workers are required to wear a “safety vest” (i.e. reflective vest) while working on site. This is not disputed. Therefore, the fact that [Khalilur] was wearing a reflective vest at the time he was stretchered out does not mean that he was not working at height.
In fact, a co-worker, witness for Khalilur, stated that
… after Khalilur fell, his safety harness was removed due to its heavy weight by Jahirul and other workers before he was hoisted up to ground level. … As the safety harness was heavy, it would be entirely consistent and logical for the safety harness to be removed from [Khalilur] before they lifted him out of the Underground Tunnel in a basket.
Whether Khalilur suffered an injury
Khalilur’s lawyer pointed out that the ACL’s ruling that Khalilur suffered from “flu and cough” that day had no basis in the notes of evidence. None of the Respondents’ witnesses said that or they were in no position to know that. Even the company clinic in Geylang prescribed painkillers — this would be very unusual if the diagnosis was flu and cough.
On the contrary, there is copious documentation from various doctors in Woodlands Polyclinic and Changi General Hospital about a back injury, including an MRI report confirming so. Clearly, an injury had occurred consistent with a fall from height. The submission contended that
… it is puzzling how the ACL could have concluded that [Khalilur] did not suffer any injury; and yet, could find that [Khalilur] had simply suffered from “flu and cough”, in the absence of any credible evidence to support his finding.
Further down, the submission reiterated,
We emphasise that at no time did any of the medical professionals cast doubt on the authenticity of [Khalilur’s] back injury, nor has the Respondents challenged or disputed the medical reports or treatments received by [Khalilur]. Yet the ACL has seen fit to ignore the consistent diagnosis of the doctors, as set out in the medical reports.
Compensation awarded and paid
On winning the appeal, the insurer was ordered to pay Khalilur the assessed compensation. By this time, Khalilur had gone home to Bangladesh, and so TWC2 collected the money for him and wired the amount to his account back home.
He sent us his thanks and several pictures showing us his new life: he now owns a duck farm!
Rahman Khalilur’s duck farm
A much happier Khalilur