*The contents in this blog relates to legislation in Queensland.
If you are an injured worker and receiving statutory workers’ compensation benefits, it is imperative that you are aware of the potential consequences you may face if you lie to your insurer, or fail to be completely upfront and honest with your insurer, including criminal action.
When you lodge a claim with WorkCover Queensland, or any Queensland self-insurer, you are advised, that you need to be upfront and honest with all dealings with WorkCover Queensland. Moreover, you are advised that it is an offence under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) to provide false or misleading information to WorkCover.
If a person lodges a claim using the physical WorkCover form, there is a declaration contained on the form that needs to be provided advising of this obligation. If a person lodges the claim with WorkCover over the phone, this obligation is verbally advised to the worker. Finally, if a person lodges a claim online with WorkCover, there is a prompt that advises the worker of the obligation. However your claim is lodged, this issue is addressed by WorkCover.
As the warning is usually provided to the injured worker at the start of their claim, sometimes the injured worker can forget their obligations during the course of their claim, and fail to keep WorkCover updated on their situation, which can lead to multiple problems. Even if the omission is innocent, this conduct can open up the worker to significant penalties.
OFFENCES:
So, you might be thinking “what happens if I lie to WorkCover?”
Well, there are two provisions in the Act which deal with such offences.
Offences Involving Fraud:
Section 533 of the Act states that a person must not in any way defraud or attempt to defraud an insurer. If a person is found to be fraudulent, they face a maximum penalty of five years imprisonment or 500 penalty units (which equates to approximately $69,000.00).
False or Misleading Information or Documents:
Section 534 of the Act states that a person must not state anything or give anything to WorkCover that the person knows is false or misleading in a material particular. If a person is found to be misleading, they face a maximum penalty of 1 year imprisonment or 150 penalty units (which equates to approximately $20,678.00).
Not only do you face the consequences of paying a fine or being imprisoned but you may also face the following:
- You may lose your entitlements to common law damages;
- You may be ordered to repay the benefits you have been receiving from WorkCover Queensland, including treatment expenses; and
- It can become a matter of public record.
EXAMPLES OF FRAUD:
So, you might be thinking, “what constitutes fraud?” Well, under section 535 of the Act, there are specific examples set out of what can constitute an act of “fraud” under the Act.
This includes (but is not limited to) the following:
- Lodging an application for compensation with an insurer; and
- Engaging in a calling; and
- Without providing a reasonable excuse, you do not inform the insurer within 10 business days of such calling.
A “calling” is defined under section 136 of the Act to be paid work, unpaid work or activities that could appear to be work-style activities.
It is important to remember that a “calling” is not just paid work, it can also include volunteer work.
CASE EXAMPLE:
The case of McLean v Workers’ Compensation Regulator [2021] QDC 22 highlights the consequences that an injured worker may face should they lie to WorkCover Queensland.
On 31 August 2020, Mr McLean pleaded guilty in the Brisbane Magistrates Court to a number of charges in relation to dishonesty during the course of his WorkCover Queensland claim. However, Mr McLean appealed the decision in the District Court and argued that the sentencing was “excessive”.
Fraudulent Actions:
So what did Mr McLean do that constituted fraud? Well, in this case there were a number of actions that Mr McLean did that were in fact fraudulent.
Mr McLean firstly provided WorkCover Queensland with several payslips from his employer, which were in fact fabricated and untrue representations of his income.
Moreover, Mr McLean advised WorkCover Queensland that he was unable to return to his usual duties due to his injuries. As mentioned previously, Mr Mclean was informed by WorkCover that he was required to notify WorkCover within 10 days of returning to work or engaging in a calling. However, investigations revealed that Mr McLean was working for approximately 9 months and did not inform WorkCover of his return to work.
Not only that, but Mr McLean also made false statements to WorkCover, including the fact that he supposedly could not drive for long durations due to his injuries. However, surveillance footage confirmed that he was in fact able to drive for long durations, and such statement was false.
Throughout the course of Mr McLean’s statutory claim, he received $265,774.21 by way of weekly benefits and treatment.
Sentencing:
On 31 August 2020, Mr McLean pleaded guilty in the Brisbane Magistrates Court to 10 charges of dishonesty and on 19 November 2020 he was sentenced as follows:
- Defrauding or attempting to defraud WorkCover Queensland – two years’ imprisonment suspended after six months for operational period of three years;
- Giving WorkCover Queensland a document containing information that is false or misleading in a material particular – nine months’ imprisonment suspended after three months;
- Knowingly making to WorkCover a false or misleading statement in a material particular (seven charges) – for each charge, nine months imprisonment suspended after three months;
- Failing to notify WorkCover Queensland of a return to work or an engagement in a calling – convicted but not further punished.
Moreover, the Magistrate also determined that all of the outstanding WorkCover Queensland payments in the sum of $261,524.21 ought to be repaid to WorkCover.
Appeal:
As expected, Mr McLean was not happy with the above sentencing and lodged an appeal to the District Court.
There were two grounds to the appeal. Firstly, that there was an error of law made by the magistrate in failing to take into consideration the restitution payment of $261,524.21 and secondly, that a term of six months’ imprisonment was manifestly excessive.
Decision of Appeal:
On 24 February 2021, the District Court of Queensland dismissed Mr McLean’s appeal.
In terms of the repayment of $261,524.21, Justice Rosengren found that Mr McLean’s fraudulent actions disentitled him from receiving such payments, and thus he was required to repay such funds.
In terms of the “excessive sentencing” argument, Justice Rosengren found such punishment to be in line with community expectations.
KEY TAKEAWAY:
So, are you a criminal if you lie to WorkCover Queensland?
The above case, clearly shows the serious consequences you may face if you are found to be lying to WorkCover, which includes imprisonment. The case reminds us that it is not worth lying to WorkCover and instead, to always be upfront and honest at all times during the course of your WorkCover claim.
If you want to learn more about what constitutes as fraud or require assistance, please do not hesitate to contact our experienced and dedicated team at Turner Freeman Lawyers.
This blog post deals with specific statutory provisions of the workers’ compensation legislation that applies in Queensland. Each state and territory has its own legislation, and its own workers’ compensation systems. Advice surrounding different states should be obtained from firms that practice in that jurisdiction.
This Blog was written by Jemma Corbett, solicitor and approved by Ciaran Ehrich, partner, of our Gold Coast office.