Fraud referrals to Q-COMP

Q-COMP Legal Services – who are we?

• Peter Rawlinson, Legal Counsel

• Alistair Burke, Legal Officer

• Jenny Foy, Paralegal

• Di Greenaway, Legal Support Officer

The Law – Workers Compensation and Rehabilitation Act 2003 (‘Act’)

• Section 533 – A person must not in any way defraud or attempt to defraud an insurer.

• Section 534 – A person must not state anything to a self-insurer, or give a self-insurer a document containing information, the person knows is false or misleading in a material particular.

• Section 535 – Failing, without reasonable excuse, to inform the insurer of engagement in a calling after lodgement of Application for Compensation.

• Section 536 – self-insurer’s duty to report fraud or false or misleading information or documents to Q-COMP.

What is fraud?

“…intentional creation of a situation in which one person deprives another of money or property or puts the money or property of that person at risk or prejudicially affects that person in relation to some lawful right, interest, opportunity or advantage, knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interest”.

Macleod v R (2003) 214 CLR 230

• Note the required mental element – it must be proven, beyond a reasonable doubt, that the person intentionally and knowingly defrauded or attempted to defraud

What must Q-COMP prove in Court to be successful in prosecution?

Q-COMP must establish, beyond a reasonable doubt, that the worker knowingly and intentionally failed to disclose certain information to the insurer, its authorised representative and/or medical practitioners with the intent of obtaining a benefit for which they were not entitled.

This subjective element has been referred to by the Courts as akin to an “unequivocal consciousness of guilt”.

Wills v Workers’ Compensation Board of Queensland (1993) 144 QGIG 507 at 508.

What is meant by ‘engaging in a calling’?

• Pursuant to Section 136 of the Act, a worker who is receiving compensation is required to notify you in writing within 10 business days of returning to work or engaging in a calling.

• The notice may be a doctor’s certificate in the approved form stating the worker’s capacity for work (s136(3)).

• The term ‘calling’ means any activity ordinarily giving rise to the receipt of remuneration or reward including self employment or the performance of an occupation, trade, profession, or carrying on of a business, whether or not the person performing the activity received remuneration.

• Requires a failure to disclose, in the absence of a reasonable excuse for that failure.

When to refer?

• If you believe on reasonable grounds that:

• a person is defrauding, or attempting to defraud, the self-insurer/registered person; or

• a person has stated anything, or given a document containing information, to the self-insurer/registered person that the person knows is false or misleading in a material particular.

* Please feel free to contact Q-COMP prior to referring the matter to discuss the material or to receive advice.

What to include in your referral?

• Send to Q-COMP’s Legal Services a copy of all information you hold in relation to the claim, E.g.

• Application for Compensation

• Medical Certificates

• File notes

• Statements

• Medical Reports

• Investigation Reports

• Surveillance Footage (if applicable)

• Details of expenditure on claim

• Other – any other information you hold that is relevant to the issue.

How do Q-COMP Legal Services handle referrals?

• Step 1: Acknowledge receipt of the referral;

• Step 2: Review and consider the material, determine whether any additional material is required before

proceeding;

• Step 3: Either:

a) Advise the insurer that Q-COMP has determined that there is insufficient evidence to proceed; or

b) In the event Q-COMP determines there is sufficient evidence to proceed - request that the Worker participate in a Formal Record of Interview to discuss the material;

What is a Record of Interview (ROI)?

• A Formal Record of Interview Q-COMP conducts with the Worker to discuss material and circumstances relating to the allegations of fraud;

• The interview must be conducted in accordance with established common law principles and rules – if not the content of the interview is not admissible;

• Statements made in the interview are not admissible unless given voluntarily – they cannot be induced by threat or promise;

• Q-COMP officers cannot cross examine, intimidate, or pressure the Worker nor can we act in an aggressive manner;

• The purpose of the ROI is to allow the worker to explain the material and the circumstances– it may assist in clarifying some issues and potentially save the significant costs associated with initiating prosecution proceedings.

How do Q-COMP Legal Services handle referrals? (Cont.)• Step 4: Review material arising from the Formal

Record of Interview and either:

(a) Brief Counsel to provide advice on the likelihood of a successful prosecution and draft complaint

and summons to be served on the Worker (if applicable); or

(b) Advise the insurer that Q-COMP has determined that it is not appropriate to

proceed.

How do Q-COMP Legal Services handle referrals? (Cont.)

• Step 5: Review the advice from Counsel on the likelihood of a successful prosecution, reconsider

prospects of success and either:

(a) Proceed to prosecution - File the complaint and summons in the Magistrates Court

and serve a copy on the Worker; or

(b) Advise the insurer that Q-COMP has determined that it is not appropriate to

succeed as the likelihood for a successful prosecution is low.

Options following Q-COMP’s decision?

• Q-COMP will advise you in writing of its decision to proceed or not to proceed.

• We are happy to discuss our decision with you either via telephone or in person.

• If Q-COMP does not proceed you are welcome to refer the matter back if further relevant information is obtained.

Remedies

• Prosecution

• Informal meeting with the Worker:

Purpose is discuss the matters raised and advise the Worker that Q-COMP has determined not the proceed in the circumstances.

This also provides Q-COMP with an opportunity to issue the Worker with an informal warning. It is not appropriate for Q-COMP to issue a formal warning as it could raise issues of defamation.

Penalties

• If a person is found guilty of an offence under sections 533 or 534 of the Act, the following sentences apply:

• Section 533 - Maximum penalty — 400 penalty units or 18 months imprisonment;

• Section 534 - Maximum penalty — 150 penalty units or 1 year’s imprisonment.

• See Handout - Comparative Sentences.

Case Study 1

• See Handout.

• Example of a situation in which Q-COMP is likely to proceed with prosecution.

Case Study 2

• See Handout.

• Example of a situation in which Q-COMP is unlikely to proceed with prosecution.

Q-COMP Legal Service Contact Information

Peter Rawlinson

Phone: 3020 6420

Mobile: 0421 093 462

Email: Peter.Rawlinson@qcomp.com.au

Alistair Burke

Phone: 3020 6453

Email: Alistair.Burke@qcomp.com.au

Questions