This story has a happy ending for welder Islam S M Rafiqul, but for a while it was touch and go. On the morning of 11 December 2018, Rafiqul was asked by his senior, Hossain Kabir, to jointly move a heavy metal reel some distance, in the course of which Rafiqul suffered a back injury.
The employer, Baek Jae Pte Ltd, did not acknowledge that an accident happened. No incident report was filed with the Ministry of Manpower (MOM) though it was mandated by law. Rafiqul had been given 76 days of medical leave, a length that evinces a significant injury. Possibly, the company felt that since it was going to take the view that no accident occurred, it would be contradictory to file any incident report.
When Rafiqul himself filed an injury claim at MOM, notifying the ministry of an accident, the company continued to deny that it had occurred.
Timeline
11 Dec 2018: accident happened; x-ray report from Tan Tock Seng Hospital (TTSH) says “Mild degenerative changes seen”.
25 Feb 2019: MOM denies Rafiqul’s injury compensation claim. Rafiqul files an objection.
5 March 2019: TTSH issues report on permanent disability.
August 2019: Hearings before the Assistant Commissioner for Labour (“Labour Court”)
23 September 2019: MOM’s decision reversed; Rafiqul’s claim affirmed.
But Rafiqul had medical reports. From later submissions made by the employer, it appears that the company instead adopted the line that Rafiqul’s medical diagnosis was of a degenerative medical condition of this backbone and that Rafiqul failed to connect this medical condition to the alleged incident. In other words, even if he had an injury, it had no causal relationship with whatever happened on the morning of 11 December 2018.
On 25 February, MOM ruled that Rafiqul’s injury did not arise out of or in the course of employment; in effect accepting this argument. Thus, no compensation would be payable. He would not be entitled to full medical leave wages nor compensation for the permanent disability that followed.
Around the same time, Tan Tock Seng Hospital wrote that Rafiqul had suffered a degree of disability; however, this assessment would be of no effect since MOM said it wasn’t work-related.
What really happened on 11 December 2018?
We have Rafiqul’s account and the company’s account. It may be impossible to make a determination, though in September 2019, the Assistant Commissioner for Labour would, after conducting hearings (“Labour Court”), reverse MOM’s initial decision and find in Rafiqul’s favour on the ground that he had been more consistent.
PVD machine
At the morning’s “toolbox meeting” — a brief meeting to assign work to various workers — supervisor Nagendran Balakrishnan (“Nagu”) told Hossain Kabir and Rafiqul to attend to a metal reel, which was part of a PVD machine. We have no idea what a PVD machine is, but as one can see from the photo above, it is huge. Just the part in question (metal reel) is nearly as tall as an adult man (photo below). Apparently the main contractor was coming for an inspection and the reel needed some welding or repair work done in order to pass inspection. Thus two welders, Kabir and Rafiqul, were assigned to the task.
The metal reel is said to weigh 80 kg. Also called the ‘wheel’ or ‘roller’.
Nagu would later deny that he knew welding work was needed. Rafiqul’s lawyer would then point out that there must have been a reason why Nagu assigned two welders to the job. Frankly, whether Nagu knew that welding work was needed was not germane to the issue of whether this was a work-related accident, yet such was the make-do nature of the company’s defence that every by-way and alley-way was tried to deny the accident.
Kabir and Rafiqul found the reel 15 – 20 metres from where welding work could be done. An attempt was made to get a forklift to move the reel to the suitable location, but none was immediately available. Although the reel was said to weigh some 80 kilogrammes, Kabir nonetheless then decided they would move it manually instead of waiting for a forklift. Rafiqul disagreed but eventually gave way to Kabir since Kabir was the more senior worker.
At this point, their accounts diverge. Rafiqul said they only managed to move it a couple of metres when he felt a sharp pain in his back; he had to put the reel down, get to a resting place and sit. Kabir would later say that the two of them managed to move the metal reel to the welding point, and after completion of the welding task, moved it back to its previous location before Rafiqul took off.
But despite the difference in detail, it should be noted that Nagu and Kabir, testifying for the employer, admitted that the reel was moved manually when a forklift should have been used, in accordance with proper work and safety protocols. Flouting protocols created a high possibility of an accident and injury, and Rafiqul’s account that he was injured was consistent with the heightened risk. On the other hand, as Rafiqul’s pro-bono lawyer would later argue, the company did not provide “any evidence, or even a reasonable explanation, as to why the accident could not have happened.” This would be needed in order to overcome the law’s built-in presumption that the accident arose out of employment.
Kabir said he had understood that Rafiqul would be taking the afternoon off. Presumably, his point was that when Rafiqul vanished, he had no reason to think that an accident had occurred.
Interestingly, Nagu the supervsior made no mention at all about Rafiqul applying for a half day off even though he was assigning tasks for the day.
Rafiqul said he phoned Nagu to inform him of back pain and asked to be taken to a doctor, and that Nagu replied that he couldn’t leave the site because the main contractor was coming. Instead, Nagu told Rafiqul to go himself to the doctor. Nagu’s version was slightly different. He said Rafiqul came to see him personally and spoke only about being sick — nothing about any injury — but didn’t dispute that he (Nagu) gave permission to Rafiqul to go see a doctor. By this time, it was almost midday. Why Nagu’s permission had to be sought to go see a doctor if Rafiqul anyway had the afternoon off (as alleged by Kabir) was never reconciled.
Needing help to get to a doctor, Rafiqul phoned his friend Rubel, who worked for a different employer at a different site. Rubel agreed to seek time off and came to the gate of Rafiqul’s worksite. Together they took a taxi to Tan Tock Seng Hospital. The company’s own records showed that Rafiqul clocked out at 11:40am.
Later the same day, Rafiqul sent a photo of his Medical Leave Certificate (“MC”) to Michelle Ng, the Human Resources Manager and Nagu.
Not work-related, said MOM
As mentioned above, MOM ruled that Rafiqul’s injury was “not caused by accident arising out of and in the course of employment”.
While it is not always clear how MOM comes to such a decision — transparency is an unresolved issue in such cases — we can see from arguments put forth by the company’s lawyers at a later stage that the company’s position was that Rafiqul’s diagnosis was that of a degenerative condition in his spine. It’s true that the doctors’ reports said that. It appears that MOM accepted this argument and took the view that Rafiqul failed to prove that an accident had occurred that caused the injury.
In actual fact, the burden to be put on Rafiqul should not be quite as heavy as that, going by case law. The High Court has repeatedly stressed that the social protection and no-fault characteristics of the Work Injury Compensation Act should not be lost sight of. Previous cases have also established that a pre-existing health condition does not preclude a valid claim, because during work there could be trigger events that might give rise to a worsening of the condition.
Whatever the prior condition of Rafiqul’s spine, he was symptom-free till he was tasked to help move the 80-kg reel.
Labour court
Rafiqul filed an objection to MOM’s decision and TWC2 helped Rafiqul find a pro-bono lawyer. Jansen Aw from LVM Law Chambers LLC kindly agreed to come on board.
The chief focus of the lawyer’s arguments would be that on balance of probabilities, an incident did happen on the morning of 11 December 2018 that set in motion visits to doctors, etc.
Setting out case law, it was pointed out that in Hauque Enamul v China Taiping Insurance (Singapore) Pte Ltd [2018] 5 SLR 485 (“Hauque”), the High Court stated that an “accident arises in the course of employment if it bears a temporal relationship with the employment. A simple test would be whether the accident occurs, as a matter of common sense, while the employee is at work”.
To satisfy the second limb, “an accident arises out of employment if there is a causal connection between (a) the employment (and incidents); and (b) the accident”, said the High Court in Hauque. There is also a presumption in favour of the employee. When the accident occurred while he was at work, it would be presumed that the injury arose out of work unless the employer could demonstrate that there was no casual relationship.
It would take a doctor’s report along the lines of “worker was faking the pain” or “injury inconsistent with worker’s description of events” to cast doubt on the presumed causal relationship.
At the August 2019 hearings, Rafiqul’s lawyer successfully argued that (a) there was no dispute that Rafiqul was at work on 11 December 2018, (b). The heavy metal reel was moved manually in contravention of safety protocols giving rise to a high risk of injury, and (c) that the company’s witnesses gave inconsistent testimonies — including the Human Resources Manager who saw the medical reports and had checked with the insurer whether the cost of medical leave could be covered, yet insisted that all the while she thought Rafiqul was “sick” rather than injured.
Moreover, the simple fact that Rafiqul had Rubel come over and take him to a hospital immediately after leaving the worksite around 11:40am suggested that something did happen in the morning that necessitated an unplanned visit to a doctor.
In September 2019, the Assistant Commissioner for Labour ruled that, in the balance of probability, there was an injury which had arisen out of and in the course of employment, i.e. she found in Rafiqul’s favour. Besides awarding compensation to Rafiqul, she also ordered costs payable to his law firm.
In a statement on 24 September 2019, MOM said TWC2 was making a “False allegation” that “Workers can be denied WICA compensation if employers do not declare truthfully in incident reports”. MOM added that it had safeguards against an untruthful report prejudicing a worker’s injury claim.
We responded forcefully to that groundless attack. See our response here.
The case described above undermines MOM’s claim of safeguards. The employer in this case failed to file an incident report which can only be explained by its need to be consistent with the company’s position that no accident happened; thus nothing to report. Not filing when there was an accident (as the Assistant Commissioner for Labour would later rule) would be the same as asserting an untruth.
Faced with the company’s denial of an accident, MOM wanted Rafiqul to prove a causal relationship between his injury and his employment — a point made by the worker’s pro-bono lawyer at the Labour Court. In short, MOM applied — and we say incorrectly — a much higher bar on Rafiqul than should be the case.
In its initial decision, MOM did deny compensation to the worker. In short, it turned out to be prejudicial to Rafiqul.
Fortunately, we helped him find a lawyer whose passionate work led to the reversal of the decision at the Labour Court.