Most interns who spend 6 – 9 weeks with TWC2 are asked to wrap up their internship with an essay on a specific topic. Nikie spent May to July 2016 with us assisting with casework and the Labour Court Research Project. In the process, she came across many foreign workers who had difficulty getting the medical treatment they need.

An intern’s reflection on theory and practice: Access to medical care

By Nikie Neuteboom

Under the Work Injury Compensation Act, hereinafter referred to as WICA, employees can lodge a claim for injuries or diseases sustained at work without having to take legal action.

Legal obligations under WICA

The employer is to pay for all medical expenses incurred in relation to any workplace injury up to a maximum amount of $36,000 per accident per employee (Third Schedule of WICA, section 5), or the cost incurred within one year after the accident, whichever is lower.

Unfortunately, practice reveals that compliance is not as simple. The law is largely based on an ‘honour system’; it assumes that employers will report workplace accidents to the authorities within a ten-day window period. The law contains no penalties if employers fail to report accidents.

Injured employees are also able to make incident reports, and at the same time initiate work injury claims. Although TWC2 does not seem to have collected any statistics on this, their experienced volunteers believe that in a majority of cases, it is the employee who first reports an accident. What then follows is a request by the Ministry of Manpower (MOM) to the employer to confirm if the accident occurred and for more details.

Some employers  reply truthfully. Unfortunately, many employers deny that any accident had happened — WICA contains no penalties for lying to MOM. If the employer disputes the validity of the work-related injury, it will have to be determined by MOM whether the injury indeed constitutes a work-related accident within the scope of WICA and hence whether the worker is eligible for compensation, payment of medical leave wages and the incurred medical expenses. The investigations to determine this workplace accident validity can take a year or more to resolve which in turn may delay the worker’s access to medical treatment to the detriment of the worker’s health. Injuries that are not treated promptly may be impossible to treat later.

In theory, whilst the investigation is pending, employees can seek medical treatment on their own and pay for it first. They can claim reimbursement later after MOM has ruled that a workplace accident had occurred. But since foreign workers in Singapore are paid so poorly, in most scenarios they have no resources to pay for any major medical procedure on their own.

A common practice, when a hospital advises a worker that a major procedure is necessary, is to ask the employer to provide a Letter of Guarantee (LOG). This is an undertaking by an employer to cover the cost of the treatment. Even for less expensive follow-up appointments or physiotherapy, if an employer has not paid for a series of them, the hospital may cancel future appointments and ask for an LOG.  Many employers simply refuse to give the hospital the asked-for LOG; as a result, workers are unable to obtain treatment.

Many cases drag on for a very long period due to the obstruction by employers or simple unawareness by workers of their rights. A not-uncommon reason motivating employers to deny that an accident occurred is because they either did not buy insurance or insurance has lapsed. The compensation liability then falls entirely on them and they may see that the easiest way to avoid this liability is to deny the WICA-validity of the injury. For any of these reasons, many of these workers face difficulty obtaining the medical treatment required.

An example is the case of Mr. Harun Rashid Or where the employer’s failure to report the accident complicated his access to treatment. In his case the employer did not report the accident and felt there was no need for them to pay for medical treatment. The doctor told Rashid he needed physiotherapy for his back. However, he could not start his therapy because the employer did not agree to cover the cost.

Employers feel they can get away with denial because they have leverage over witnesses to any accident. These witnesses are the company’s employees too, and it is very easy for the boss to coerce them to testify on his behalf. The employer threatens the witnesses with job termination if they don’t testify as ordered or offers financial incentives for doing so. The reason why coercion is easy is because under the law, a terminated employee cannot take on another job; he must be sent home. These witnesses therefore depend on the goodwill of the employer to stay in their jobs and in Singapore, and to continue to provide for their families. They then support the employer’s claim that the alleged injury was not sustained at the workplace and hence does not fall within the scope of the WICA.

I attended the closing hearing of Mr. Sarker Kiron who made the point that the witness of his employer might be coerced. The presiding Assistant Commissioner of Labour then said that this is mere speculation and that this would need to be backed with evidence. This idea that an employer’s witnesses are only deemed coerced if somehow proved is in my opinion very problematic, because how would one prove that? Shouldn’t it be safer to discount such testimony in the light of the unequal power relationship between the employer and these witnesses?

It is worth noting that medical care is not only mentioned in WICA. A separate piece of legislation, the Employment of Foreign Manpower Act (EFMA), through its subsidiary legislation, also mandates medical care for foreign work permit holders. Section 25 subsection 6 (c) of EFMA says that the employer shall bear and be liable to pay the following: the costs associated with purchasing and maintaining medical insurance coverage for the foreign employee, as required by the Controller.

Employers therefore should not drag their feet in providing medical treatment. MOM should insist that the question of WICA validity should not be an excuse to deny or delay medical care.

In most scenarios MOM does not push the employer to pay for medical costs. The case of Mr. Anowar is one in which TWC2 believes MOM did actually try to push the employer into providing an LOG so that needed surgery on his shoulder can be performed. The doctor provided a letter that a certain procedure was immediately and medically necessary for Mr. Anowar.  Yet MOM’s efforts were in vain. Why MOM does not use its legal powers to do right by Anowar is unclear, nor is it clear whether the employer will be prosecuted as a result.

Suggestion for improvement

In order to improve the situation, change is required. Introducing a novel idea to Singapore, whilst borrowing from a similar set up to that in Germany, could be the answer.

Germany follows a no-fault system where accident insurance is provided by means of an autonomous body unlike private insurance. These self-governing institutions are funded by the contributions of the employers, in the form of a social security pool. These contributions are weighted accordingly and depend on various factors such as the risks, number and severity of accidents. Having a bonus-malus system in place, such as the case in Germany, creates incentives for employers to ensure safety at the work site as they will receive rebate on their contributions if their accident rate is lower than the average for the given industrial sector.

In Germany, the implementation of and control of compliance with national regulations on occupational safety and health falls under the individual responsibility of the Federal States and is supervised by labour inspection authorities. The implementation and control of the accident prevention regulations on the other hand is carried out by the inspection services of the accident insurance institutions. There is hence a dual occupational safety and health system in place as there is interplay between the federal labour inspection authorities as well as the accident insurance institutions. The strength of the German system lies in the close cooperation among the various actors in occupational safety and health with the strong and prevention-minded labour inspection authorities and accident insurance institutions.

Singapore could look up to this model. If Singapore would introduce an independent safety supervisor with a professional license from the government at the work site who – although remunerated by the employer – is able to act on his own motion monitoring the site and carrying out checks to ensure that the safety regulations are complied with, and who is empowered to make independent reports of accidents without reference to bosses, this could significantly cut short the process of determining work-place validity. This independent safety supervisor would, unlike the regular safety supervisor, not have a conflict of interest as he would receive his license from the government. His licence would be in jeopardy if he fails to report professionally and honestly. Moreover, the employers can’t deny an accident occurred as that can only be determined by that autonomous inspection authority.

Introducing a similar statutory accident insurance as the case in Germany, would ensure that all workplace accidents and occupational diseases are compensated through the statutory accident insurance system. As a rule, all persons in employment must be entitled to this insurance. This would be an improvement over Singapore’s system requiring employers to buy private insurance. Under our system, if they have failed to do so, they then become very determined to deny WICA-validity and obstruct medical treatment for workers.

Laying out rules on paper in itself is not enough, one must also be able to resort to remedies in case of non-compliance. In Germany, if the employer does not abide with the law, these inspectors may resort to different measures – depending on the nature and severity of the breach in question. This varies from simply re-visiting the site to supervise compliance, issue fines, partially or completely shut down the company or prosecute under criminal law. Similarly, the accident insurance inspectors can issue fines or may decide to increase the insurance premium where the employer repeatedly chooses not to comply with the safety regulations. Under Section 35 of WICA, MOM is empowered to resort to similar penalties for offending employers. Nevertheless, practice shows that MOM rarely resorts to these.

More rigorous inspection carried out by unbiased autonomous inspection authorities overlooking all aspects of the process; implementation, compliance and penalties in case of non-compliance, should not only speed up the process of determining work-place validity but in taking such a preventative approach could also limit the possibility of accidents occurring at the work-place. Moreover, if there is an independent fund for accident insurance, there is a guarantee that a worker will be compensated in time.

These suggestions are all to improve the current situation so that employers will foot the bills for medical costs of workers to get the treatment they deserve.