WorkCover Fraud: A case study

The Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA“) confers various rights upon workers in Queensland, not least of which is the right to receive compensation when injured at work. However, the WCRA also contains provisions designed to protect the scheme against workers who attempt to defraud an insurer or provide false or misleading information to an insurer or medical expert.

The most common fraud offences committed by workers against the WCRA tend to involve:

  • A worker failing to declare a pre-existing injury; or
  • A worker engaging in a calling (i.e., working) while in receipt of weekly compensation payments.

Mullins Lawyers was engaged by WorkCover Queensland in relation to a common law damages claim pursued by a worker in Townsville. The worker claimed to have suffered a shoulder injury in December 2017 in an unwitnessed fall at work.

When questioned by WorkCover’s statutory claims unit and various doctors, the worker denied any pre-existing history of injury to the shoulder. WorkCover ultimately accepted the statutory claim and funded shoulder surgery, paying over $40,000.00 in lost wages and medical expenses. Once the statutory claim had finalised, the worker instructed solicitors and commenced a common law damages claim against the employer.

Upon being instructed by WorkCover, Mullins Lawyers obtained copies of the worker’s past medical records. These records revealed the worker had attended a General Practitioner in relation to shoulder symptoms in March 2015 (over 2.5 years before the alleged incident) and had undergone radiology which confirmed the presence of a shoulder condition. A comparison of pre-incident and post-incident radiology reports suggested that the surgery funded by WorkCover was actually to treat the pre-existing injury.

After gathering evidence about the pre-existing shoulder injury, we advised WorkCover that the worker should be referred to the Office of Industrial Relations for offences committed under the WCRA. A referral was made by WorkCover and the OIR decided to pursue a prosecution.

In relation to offences committed by workers against the WCRA:

  • Section 533 of the WCRA provides that a worker must not defraud or attempt to defraud a workers’ compensation insurer.
  • Section 534 of the WCRA provides that a worker must not provide false information to WorkCover or a reviewing doctor.
  • Section 535 of the WCRA provides that a worker is taken to have committed fraud if the worker lodges an Application for Compensation and then engages in a calling without informing the insurer.
  • Section 536 of the WCRA provides that a workers’ compensation insurer must refer a matter to the Workers’ Compensation Regulator (a statutory body under the Office of Industrial Relations) where there is a reasonable belief that a worker has defrauded or attempted to defraud an insurer or has provided false or misleading information.
  • Section 537 of the WCRA provides that a worker convicted of fraud or attempt to defraud loses any entitlement to pursue a damages claim.

 A “reasonable belief” needs to be more than mere suspicion.

The worker in this case ultimately pleaded guilty to Fraud and Attempted Fraud offences. Sentencing took place in January 2023, and the worker was sentenced to 15 months imprisonment on each count (wholly suspended for a period of 30 months). The worker was ordered to pay restitution to WorkCover for all expenses funded under the statutory claim (over $40,000.00) and to the OIR for the costs of the prosecution.

As a result of the convictions, the worker’s entitlement to pursue a common law damages claim was also extinguished.

This case serves as an example of how the worker’s compensation scheme in Queensland serves to protect not only the rights of workers, but also the interests of employers and insurers against workers who seek to claim benefits to which they are not entitled.

A key takeaway for employers is that WorkCover should be informed of any suspicions about injured workers (for example that an injury is pre-existing or that a worker is performing work while receiving compensation) at an early stage so appropriate investigations can be undertaken to identify fraudulent claims.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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