Qld. court holds firm on penalties for compensation fraud

Cases

Qld. court holds firm on penalties for compensation fraud

The Industrial Court of Queensland has dismissed an appeal by a Queensland Ambulance Service employee who was convicted of fraudulently receiving $88,000 in benefits from WorkCover Queensland.

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The Industrial Court of Queensland has dismissed an appeal by a Queensland Ambulance Service employee who was convicted of fraudulently receiving $88,000 in benefits from WorkCover Queensland.
 
The man was convicted on three counts after he was found to be providing private first-response training while pursing a claim for total incapacity. President Hall of the Industrial Court supported two of the three convictions after agreeing with the Industrial Magistrate that 'a reasonable man would have known that the performance of the work had to be disclosed'. He dismissed the employee's appeal against a penalty of 15 months' imprisonment to be suspended after four months saying the employee had shown not the least indication of remorse, had met the charge by seeking to deceive the Industrial Magistrate and had taken a large amount in benefits. He also dismissed the employee's appeal against repaying the full amount of compensation.
 
The employee argued his compensation should have only been reduced by a modest sum because, for a very short period, he was able to carry out work other than his normal work. President Hall interpreted the legislation to mean that, upon conviction, 'any' entitlement to compensation that the person convicted might otherwise have had comes to an end and the court must order the repayment of all amounts paid.
 
Background
 
The employee, who provided training for the Queensland Ambulance Service, took time off work and claimed benefits from WorkCover Queensland after receiving treatment for an adjustment disorder with depressed and anxious mood for over a year. He made the claim by completing a form which asked: 'Did you stop work because of this injury?' to which he answered 'yes' and also 'Have you returned to work?' to which he answered 'no'. However, the previous month he had conducted private training sessions for a mining operation for four half days under an arrangement made prior to finishing work with Queensland Ambulance Service. He was also scheduled to provide a second training course.
 
Under s.163 of the WorkCover Queensland Act 1996 he was required to disclose this work. WorkCover Queensland instituted proceedings for three criminal offences: making a false or misleading statement under s.483, defrauding WorkCover under s.482 and defrauding WorkCover under s. 482 based upon the deeming provision at s.484. An Industrial Magistrate convicted the employee on all three charges. He appealed against each conviction. In the alternative, he appealed against the severity of the penalty imposed (15 months' imprisonment to be suspended after four months), the quantum of the restitution order made against him, and the Industrial Magistrate's decision to secure an order for costs made against him by an order that in default he serve a further period of six months in prison.
 
Findings
 
President Hall said while the Industrial Magistrate began by inquiring what a reasonable man in the employee's circumstances would be taken to have meant if he had given the same answers on the form, he had the advantage of hearing the employee give evidence, and took 'an entirely adverse view' of his credibility.
 
Additionally, he said, the Industrial Magistrate was confronted with the reality that the employee must have been aware when he filled in the application form that he had performed the training work only a very short time previously. Further, in a letter to WorkCover Queensland arguing his case for benefits the employee asserted: 'My concentration is pathetic. I cannot remember from one day to the next what I have been doing; I jump from one thing to another during the day and not finish anything.' Yet, said President Hall, he had been supervising training courses only six weeks earlier and was about to undertake further work of the same kind.
 
The president found that the case for unequivocal consciousness of guilt had been made. While the questions on the form were ambiguous in that they could have been thought to relate to the principal or normal occupation, he said this was irrelevant. 'The [employee] was not charged with giving an inaccurate answer to question 27. He was charged with making 'a statement to WorkCover that he knew was false or misleading in a material particular'. And there was no ambiguity about the lie which he was alleged to have told.' Consequently he dismissed the appeal against conviction for breach of s. 483.
 
On the charge under s.482 - that the employee alleged he was totally incapacitated for work when this was clearly untrue - President Hall allowed the appeal against the conviction and set aside the decision of the Industrial Magistrate. He said there was merit in the argument that the complaint was duplicitous. He said s. 482 of the WorkCover Act must be looked at in the context of the Justices Act 1886, s. 43, which provides that complaints should be for one matter only, and not for two or more matters. 'The purpose of the subsection is expressly to limit the circumstances in which a series of actions each of which might itself be made the subject of a charge may be bundled together in a compendious way to support one charge of fraud.'
 
On the charge under s.482 and s.484 (deemed fraud) the ground of appeal was that the complainant had not made out 'unequivocal consciousness of guilt'. President Hall said that for the reasons given in dealing with the first charge, he was satisfied that the Industrial Magistrate did inquire into and did determine that there was an unequivocal consciousness of guilt. 'A reasonable man would have known that the performance of the work had to be disclosed.' He dismissed the appeal against this conviction.
 
On the question of the severity of the penalty, President Hall said offences of this kind needed sentences reflecting public disapproval and with a strong deterrent aspect. He said only 'strong mitigating circumstances' would justify not imposing a custodial sentence. In this case, other than that the employee had no previous convictions, there were no mitigating circumstances. On the other hand, the employee had shown not the least indication of remorse, had met the charge by seeking to deceive the Industrial Magistrate and had taken a large amount in benefits ($88,000). President Hall said despite the overturning of the second charge, the 'objective gravity of the matters upon which the [employee] was convicted on charges one and three must, in the absence of mitigating factors, justify a sentence of the type imposed'. He dismissed the appeal against sentence.
 
The Industrial Magistrate ordered the employee to repay to WorkCover Queensland the sum of $80,991 being the sum of the weekly payments, hospital expenses, medical expenses and travel expenses paid out. The employee appealed saying his compensation should have only been reduced by a modest sum because, for a very short period, he was able to carry out work other than his normal work for the Queensland Ambulance Service in a situation where the normal stressors were not present.
 
President Hall interpreted the legislation to mean that, upon conviction, 'any' entitlement to compensation which the person convicted might otherwise have had comes to an end and the court must order the repayment of all amounts paid. 'One cannot import into the phrase an intention that on inadequate evidence the Industrial Magistrate should tease out the past and guess at the assessment WorkCover Queensland would have made if the truth had been told.' President Hall dismissed the appeal against the repayment order and went on to reserve decision on the question of costs on the appeal owing to the mixed outcome.
 
See: Francis Michael Fahey v Daniel Peter Keating (No. C87 of 2002), Industrial Court of Queensland (Hall P), (19 December 2002).
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