Injured workers’ ordeal: tar pits

Until October 2019, the Ministry of Manpower (MOM) processed the Work Injury Compensation (WIC ) claims. Now that this has been taken over by insurance companies, the process is supposed to be quicker, with MOM stepping in only when necessary, as shown in the graphic (issued by MOM) below. Yet we find that both the injured workers and those assisting them with the process are now facing a new array of difficulties, complexities and obscurities.

Claim status

The obscurity starts with the status of the claim. Previously, the current status of the claim was made readily available on the MOM site, together with the basic information such as date of the accident, the insurer, the employer, and the MOM reference number. In addition there would be a status statement which would indicate whether: the case is proceeding normally; the validity of the claim is in question; the assessment of permanent incapacity has been determined; the notice of assessment has been issued; the percentage of incapacity and the dollar amount of injury compensation, as well as other status indicators.

These updates also provided helpful information about what steps the worker needed to take, and what he might expect next. There was no need to contact the MOM officer or the Insurance company as the brief status reports were updated as the claim progressed.

Various status updates previously shown by MOM (selected examples), versus now

Now that the claims process has been passed to the insurance companies, the only information regularly shown (in addition to the basic information) is a phone number and email address of the insurance company. The previously available status statements have been replaced in virtually all cases with a bland note that, in essence, says, ask the the insurer.

Phoning the insurer can lead to a labyrinth of lengthy recorded menus offering a variety of options, often without the option of speaking to a live person. This can be frustrating and time-consuming, and too complex for the average migrant worker to manage. The email option is usually unavailable for workers, as most do not use email and would have difficulty phrasing their questions and concerns in English.

Even though the MOM reference number may be known, the insurance reference or policy number is not, adding to the difficulty of identifying the claim to the insurer. While some insurance companies are willing to speak to TWC2 case officers and volunteers, others state that they will only speak to the worker or his legal representative, thus limiting TWC2’s ability to act on behalf of the worker to help resolve the claim.

Establishing claim validity

As seen above, under the current system, the worker is unlikely to know whether his injury has been reported and whether the claim has been validated. Although the employer is required to lodge a report for all injuries, the employer may fail to do so because of a belief that the injury is not work-related, or in order to avoid medical payments and other repercussions to the company resulting from workplace accidents. TWC2 often notes the employer’s failure to pay for medical treatment,  reimburse the worker for costs, and  pay medical leave wages in a timely manner. This could be interpreted in two ways: the employer is contesting the claim, or the employer is simply refusing to comply with regulations.

While TWC2 holds that an injured worker should be entitled to medical leave wages, employers may also withhold medical leave wages until validity is established. (See TWC2 article, MC wages: Despite law, injured workers left to beg for money)

Even though the injured worker himself is able to file an injury report, this is likely to exacerbate conflict with the employer, and may result in the withholding of other responsibilities, such as food, a suitable sleeping place, transportation to hospital appointments and letter of guarantee for medical treatment and diagnostics.

As shown in the examples below, some claims may continue for well beyond a year while investigations are ongoing. The MOM states: “To ensure that injured employees continue to receive their compensation promptly, insurers have to meet the processing timelines set by MOM” and yet TWC2 is unaware of any timelines being imposed.

Complicating the process is the reluctance of co-workers who witnessed the accident to speak up in support of the injured man and the investigations by the insurance company’s loss adjusters, who take the position that the worker must prove that injury occurred at work, rather than that the employer must prove that it wasn’t. The ensuing dispute with the employer, lack of provision of basic needs, lack of money to support family during this lengthy process, and the uncertainty of the outcome create further distress for the injured worker. It should also be noted that while the MOM is expected to be a neutral party in a disagreement between worker and employer, the insurance company would have an incentive to dispute the injury claim to avoid further payments.

Initiating the assessment

A medical assessment is an important milestone in the work injury claim process. Through an assessment, a medical doctor determines the percentage of permanent or current incapacity which will be used by the Insurance company to calculate the amount of lump-sum compensation.

When the doctor decides the injured worker is ready for assessment – this is usually done when the worker patient has been discharged from appointments, but it can be done at an earlier date to speed up the assessment process and at the same time allowing the patient to continue with physiotherapy and consultations – it is not clear how the doctor’s decision is communicated to the insurance company who then needs to issue an assessment form.

Receiving a Notice of Computation of Compensation (NOCOC)

The insurance companies typically ask the employer to liaise directly with the worker, for example, in requesting the injured worker ’s signature on the Notice of Computation which notifies the result of the medical assessment and the amount of lump-sum compensation (if any). An example of such a Notice is below.

The workers we have assisted are often shown only the final page of the 3-page document where their signature is required without including the previous pages of the document that list other aspects of the injury such as injured body part(s). If the worker signs without being shown the attached pages, he may unknowingly disadvantage himself by agree to fewer injuries than he actually incurred or to other incorrect information. Yet refusing to sign and insisting on seeing the full document would further delay the process.

Only when the signed assessment form is sent to the hospital, and the payment has been made, can the doctor’s assessment of permanent incapacity be done.

Determining Average Monthly Earnings (AME)

The AME is used to calculate the MC wages as well as the amount of lump-sum compensation. Because the MC wages should be paid monthly, it’s important to come to an early agreement on this figure. But employers typically use their version of AME throughout the claim process and the injured worker can only officially object to the AME determined by the employer or insurer at the end stage of the WIC claim when a NOCOC is issued. This means injured workers may be paid insufficient MC wages based on incorrect AME for the duration of his medical leave.

Allowing injured workers to object to AME only at the end stage of the claim process delays the conclusion of the claim by months. The possibility of delay may also prompt the workers to forego the balance of MC wages due to frustration and eagerness to conclude the claim to reunite with their families. It would be preferable for the AME to be discussed and agreed upon at the early stage of the claim process.

Notice the sample NOCOC shown above. The injury was in Nov 2021, and the NOCOC was issued in Feb 2023. The worker has waited 16 months for the compensation offer. It should be that the compensation payment is made in two weeks if there are no objections. But if the worker does not agree to $650 as his average monthly earnings, the process of issuing the compensation will be further delayed, and adjustments to the medical leave wages will also be required.

TWC2 assists many injured workers with their claims, and expect this process to be simple, expedient and fair. The insertion of a large number of insurance companies, each operating independently, has certainly not made the procedure easier. There appears to be no limit on the time taken to determine the validity of the claim. Both the employer and the insurer would have incentive to deny or to minimize the injury claim. Enforcement on employers to provide payment for medical treatment, provision of Letters of Guarantee, or divulging of salary for the purpose of determining the AME appears to be lacking.

Given the opacity of the stages of the work injury claim process, the difficulty in contacting insurers, the pain and desperation experienced by workers following the injury, many injured workers are left in a deep black pit of deprivation, despair and delays.

Several claims unresolved as of February 2024

Just as snapshots of the kinds of issues facing workers on a regular basis, here are a few cases we are currently following:

Jumayd (not his real name) was injured in Sep 2021

Parties have still not agreed on the AME. The employer has submitted what Jumayd says are fraudulent salary slips in order to reduce the AME, affecting both the MC wages and the injury compensation.

The NOCOC issued 13 Oct 2023 giving an AME of $800+  although Jumayd believes AME should be $1400. Since Jumayd objected to the AME, the insurer informs that the MOM will now take the lead in this matter.

Leo (not his real name) was injured in Sep 2022

The hospital confirms that the assessment was done and sent to the insurance in Sep 2023.

TWC2 has sent payslips, MCs and the AME computation to the insurer. The Insurer has acknowledged receipt, and promised to forward these to their claims handler for review.

The Insurer also stated that they are waiting for the employer to provide them with the pay slips for their claims handler to compute the AME before they can issue the NOCOC. For the MC wages, the Insurer will remind the employer to make payment to the injured worker, even though the AME has not yet been established.

Nabitullah (not his real name) was injured in Mar 2023

Nabitullah says his injury was assessed on 21 Sep and this was confirmed by the hospital. However, insurer still says they have not yet received the form, possibly because the employer has not yet requested the assessment.

The AME is also yet to be determined. TWC2 suggested that insurer work out the AME before issuing the NOCOC, but the insurer said that since ER is not cooperative about supplying payslips, it will only be after the NOCOC is issued and with MOM’s request the employer will be compelled to do so.

Murugan (not his real name) was injured in Mar 2023

Murugan is ready for assessment, but that is blocked by the failure of the employer to notify the hospital. According to the insurance company, “we have requested for employer to proceed with the application of the Medical Report from the attending hospital. To-date, we have yet to receive confirmation that this have been done. A reminder to employer have been sent today.”

Khalil (not his real name) was injured in Jun 2023

The doctor wrote a note in Sep 2023 To Whom It May Concern stating “Please kindly submit the form for Workmen Compensation Assessment to our Medical Report Office.” To date the worker is still waiting for the assessment to be scheduled. TWC2 is not involved as Khalil has legal representation. Khalil nonetheless chose to bring this up to TWC2. We are unaware of whether the law firm has engaged with the employer about the doctor’s request for the form.

Sawa (not his real name). was injured in Jul 2023

His employer began abusing him by beating him while Sawa was still undergoing treatment, placing contraband items in his room, and removing essential fixtures in his toilet and bathing area. Possibly because the criminal charge for possession of duty-free cigarettes, Sawa was repatriated in Sep 2023, while the injury claim was still under investigation. The insurance company continues to respond to requests for the current status of the claim by saying it is under investigation.

Hiran (not his real name) was injured in Oct 2023

The doctor’s note To Whom It May Concern” states “Patient is ready for workman compensation. Kindly assist in putting up a request at the medical reports office to start the process.” Hiran is in communication with the MOM officer, who told him to wait for the assessment, although without offering to remind the employer to commence the process.

For workers who struggle to support themselves and their families while undergoing a work injury claim, the process seems like being stuck in a tar pit: murky, viscous, and without a clear path forward.