Feedback On Proposed Work Injury Compensation Bill
10 August 2019
The Ministry of Manpower conducted a consultation with NGOs, unions, employers and insurance companies on proposed changes to the current Work Injury Compensation Act, which is scheduled to take effect in September 2020. According to the Ministry, the changes will ‘influence companies to prevent injuries from happening in the first place by making faster and simpler claims processes for everyone, enhance protection for employees and give more certainty for employers.’ HOME’s concerns about the proposed law are as follows:
Conflicts Of Interest
The proposed Bill appears to set out, as the default position, that insurers will “process” claims for compensation under the Act, unless MOM decides to do so. While certain grounds for MOM so deciding are set out, these are discretionary rather than prescriptive. For example, are there more substantive criteria or practical guidelines as to what cases, or what stage of the cases, will be under MOM's direct purview? For example, if an employer objects to an accident being something which did not arise out of work, whose purview will this be under? Would it be the government or the insurer. As corporate entities, it is in the business interest of insurers to keep claim amounts low, and even in not admitting claims. But with a new statutory duty to process claims, they will be making decisions on issues such as compensation payouts and medical leave wages. What safeguards will MOM implement to ensure that insurers (being pre-eminently interested parties) will process each claim in accordance with the worker's full rights and entitlements? Will MOM have adequate oversight of cases; for example, by conducting spot checks on claims processed by insurers, to ensure that workers are not being shortchanged?
Low-wage manual labourers, who rely most on the Work Injury Compensation Act, are the ones who are most vulnerable and least able to push for their own interests, especially if their understanding of the law is only general. For example, a worker who has been persistently underpaid for several months prior to his injury may have his compensation calculated according to documentation of his short-paid (actual) salary, rather than what he was legally entitled to. Insurers have no incentive to ensure workers are fully apprised of their rights.
Who Pays For Treatment: Hospital’s Right Against Employers
Many migrant workers have treatment (or diagnostic scans or therapy) delayed because of their employers' refusal to pay for it, or tardiness in paying outstanding bills. Hospitals often suspend treatment or services to workers when outstanding bills have not been settled. Delays adversely affect proper diagnosis and timely treatment. The proposed Bill creates a legal right for hospitals to recover payment from employers directly. This is a step forward. But several questions remain: how far this legal innovation will benefit injured workers depends on how it is applied in practice. Will hospitals be expected and encouraged to take action against employers for unpaid bills, rather than suspending treatment? Otherwise, this right is simply another option for the hospitals; the workers do not benefit. Looking ahead, HOME urges progress towards minimising the employer’s role and prerogatives in the provision of and payment for medical treatment.
Worker’s Entitlements And Position Of The Insurer If The Employer Is Insolvent
The proposed amendments are also not clear about payment for medical treatment in the event that the company is bankrupt. Upon the employers’ insolvency, would insurers have the same nature of obligation as the employers' in relation to ongoing medical treatment? Are they obliged to pay the medical institutions directly (as opposed to merely reimbursing workers)? Will they be required to give the hospitals the necessary guarantees as to payment for upcoming treatment? For many migrant workers, a right to claim reimbursement for medical expenses is practically meaningless and useless, when there are costly ongoing treatments and scans needed. They simply cannot pay upfront.
Calculation of Average Monthly Earnings (AME) In Disputed Cases
The worker’s average monthly earnings is used to compute their medical leave wages. Sometimes they are shortchanged because of inaccurate or false calculations of their salary. Sometimes records of salary calculations and number of hours worked are not even available. Low-wage manual labourers, who are the most dependent on WICA, may work very long hours. For migrant workers in particular, overtime pay is crucial to paying off their recruitment debts. It is precisely those workers who work the longest hours, and may therefore not be covered by that multiplier, who are most vulnerable to accidents and injury. Under the Employment Act, employers are obliged to adequately and truthfully document working time records and payslips, and furnish these documents to the workers. If they fail to do so, workers should not bear the cost. Rather, if there is dispute about the correct overtime payment, adverse inference should be drawn against the employer who failed to keep or furnish proper records. Recent amendments to the Employment Claims Act already mandate such inferences in salary claims. This is long-overdue acknowledgement that workers should not be penalised for the employer's default
Who May Issue A Medical Report
Stricter criteria stipulating who can issue a medical report is needed. Under the Act, medical institutions and professionals play two main roles: firstly, as providers of treatment and certifiers of temporary incapacity and sick leave; secondly, as makers of “accepted medical reports” for the purpose of deciding on compensation amounts. . HOME has documented many instances of medical professionals who prioritise the interests of the employer, who is paying for their services, over their patient’s.
Professional disciplinary mechanisms such as the Singapore Medical Council’s Complaints Committee, may extend procedural safeguards for those accused of misconduct. But such proceedings, being protracted and litigious, are ill-suited to protecting injured workers. As a separate regime with a different purpose from professional discipline, the Act should prioritise protection of injured workers.
Just as regulations will prescribe approved medical institutions, so too should regulations prescribe criteria, or at least disqualifying criteria, for accepted medical reports. One important disqualifying criterion should be that if there have been disciplinary proceedings instituted against a health professional, which have passed the preliminary stages (for example, where the Complaints Committee of the Medical Council has ordered an inquiry by the Disciplinary Tribunal), then no assessment from that health professional should be an accepted medical report.
Medical Treatment: Worker’s Right Of Choice
MOM policy in administering the Act requires workers to continue treatment at, and thereafter be assessed for their injury claims by the same institution throughout their case. Many migrant workers especially in hazardous industries like construction and marine, who do not have the means to pay for acute medical care out of pocket, are treated by private institutions appointed by their employers. Employers are also given the right to decide which institution would do the assessment of the permanent incapacity for the purpose of compensation. As earlier described, doctors have sometimes acted against their patients’ interests: particularly when beholden to the patient’s employer. Workers should have the freedom to receive treatment and assessment at the medical institution of their choice.
Medical Treatment: Going forward
There remains much scope for a more humane, just and updated approach to ensuring workers have access medical treatment under the proposed amendments. A much needed development is direct billing between medical institutions and insurers. There should be no scope for the employer to (in effect) gatekeep the worker’s access to treatment. HOME suggests that provision of direct billing facilities, at least with the leading restructured hospitals, could be part of the performance standards for designated insurers.