Workcover surveillance fails to prove famous gotcha fraud, breached Act

wokcover-surveillance-gotcha

We, seriously injured workers, continue to find it alarming that so many people in the community continue to question the “genuine” status of injured workers. The media obviously has a large role to play by reinforcing the stereotype of injured workers as fraudulent malingerers, even though research has proven over and over again that injured workers (employee) fraud accounts for only 1% of all workcover fraud. What is perhaps most disturbing of all is that weekly payments to the spied upon accused “fraudulent”  injured workers are routinely ceased by workcover insurers BEFORE a proper determination on the alleged fraud is reached.

Isn’t it funny that we never hear (in the media or otherwise) of cases of fraud which turned out not to be fraud at all, and that Tribunals and Courts find that WorkCover breached the workcover Act (law) by for example discontinuing payments?

In this workcover surveillance legal case, A South Australian injured (ill) worker has in fact been cleared of workcover fraud. The Supreme Court (the poor worker had to go all the way to the supreme court!)  ruled there was not enough evidence to suggest this injured/ill worker had knowingly made false statements about her physical capabilities.

Workover surveillance fails to prove famous gotcha fraud – WorkCover breached Act

A South Australian injured/ill worker, accused of fraud- has been cleared of workers’ comp fraud, the Supreme Court ruled there was not enough evidence to suggest the injured worker knowingly made false statements about her physical capabilities.

Background of the case

The injured/ill worker worked as cleaner at a Motel and developed a condition called fibromyalgia, which is a widespread, chronic, musculoskeletal pain syndrome, for which she claimed workcover compensation.

Initially the injured worker’s claim was denied, however the SA Workers Compensation Tribunal awarded her weekly payments in 2002, which WorkCover did not appeal.

Naturally, as is pretty much standard MO, the insurer started surveillance on the injured worker…. which allegedly showed the injured worker not incapacitated. They accused her of fraudulently obtaining (weekly) payment, and in 2005 the insurer started criminal proceedings against her.

The worst part is that the insurer also cut off weekly payments to the injured worker, before the criminal proceedings were ‘completed’ and the injured worker found guilty. Remember that there is such a thing as innocent until proven guilty, eh.

The Tribunal however overturned the matter (weekly pay reinstated) and found, in 2006, that Workcover had in fact breached  the Act by discontinuing payments BEFORE a determination was reached on the alleged injured worker’s fraud.

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The SA Workers Compensation Tribunal reinstated compensation payments to the injured worker who is (was) facing criminal charges for the alleged fraud.

The injured worker’s weekly payments were ceased by SA WorkCover who alleged she was not incapacitated and she had breached her mutuality obligation by being dishonest.

At the time the injured worker was also facing alleged several breaches of fraud under (section) s120 of the Workers Rehabilitation and Compensation Act 1986, in a separate court action.

Thanks God, Magistrate (Lieschke)  found that WorkCover had in fact breached the Act, by stopping payments before a determination was reached, by not bringing the payments up-to-date once it had been ordered to continue payments, and by not issuing fresh notice under s36! Look who’s committing fraud here!?

‘I add that a compensating authority is not to be discouraged from exercising its full legislated powers to control what it believes to be abuses of the Act. This goal however is not best served by departure from established procedures and principles”, the Magistrate said

The Magistrate also stated “It is also clear that there is no authority to support the idea that an allegation of dishonesty ought to be sufficient to automatically preclude a worker from benefits under the Act”

WorkCover’s determination was  subsequently set aside.

You can read the full text of this case here: Trask v WorkCover Corporation/Mercantile Mutual Insurance (Le Cavalier Hotel) [2006] SAWCT 83, 2 November 2006

The appeal

In 2007, (another) Magistrate ruled that WorkCover had not proved its case ‘beyond a reasonable doubt’, which workcover then – of course- subsequently appealed.

Justice Michael David, in the SA Supreme Court, found that the video surveillance evidence suggested that -at times- the injured worker may be more physically capable than she stated, but he emphasized that ‘there is a real doubt that she knowingly made false statements about her capabilities.

This, Justice David said, “is because there is little evidence to suggest that the respondent (worker) is more physically able than indicated in her statements”.

“Indeed, the fact that over an 18 month period only 22 minutes of video footage was obtained of the respondent performing physical activities suggests that she may have been as physically incapable as she stated”

“In addition, the fact that there is evidence which suggests that she may sometimes be more physically capable than she stated does not indicate that this is the case most of the time, or even often.”

Justice David stated that it was therefore a “possibility that the worker described her symptoms to doctors at their worst and was unaware that by failing to indicate that her symptom severity varied she was being misleading.”

‘The evidence is therefore incapable of proving beyond a reasonable doubt that, at the time the statements were made, they were false or misleading and the respondent knew this,’ Justice David ruled.

He also found the Magistrate had correctly determined there was no reason to reject the evidence of 2 doctors that had created doubt about the injured worker’s guilt.

‘As such, their evidence created doubt about the respondent’s guilt and, therefore, the prosecution failed to prove its case beyond a reasonable doubt. In my view there was no error in the magistrate’s reasoning or his remarks,’ Justice David said.

Thankfully, Justice David dismissed Workcover’s appeal.

You can read the full text of the case here: WorkCover Corporation of SA v Trask [2007] SASC 339 (20 September 2007)

GOTCHA back, Workcover SA! And shame on you and the so called “doctors” for again accusing (any and all) injured workers of fraud and for punishing them before they are in fact found to be guilty. 

It is time WorkCover Authorities (in all states) and their insurance agents stopped treating injured workers as GUILTY until proven innocent.

 

 



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3 Responses to “Workcover surveillance fails to prove famous gotcha fraud, breached Act”

  1. This injuredworker did well in the legal lottery. Bouquets to the judge who showed some independence of thought. I hope the worker was compensated for the lost income, just getting paid what’s due is not enough in a case like this. There should be a punitive penalty applied and paid to the injured worker to ameliorate the damage done by the application of such financial and personal stress on top of dealing with an injury.

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    Pauline Pope May 1, 2013 at 3:20 pm
  2. Agreed, this would have caused incredible financial stress which just snowballs as one needs to live on costly credit and pay all that interest etc. Not to mention the effects on emotional and physical health as one is forced to eat less, possibly relocate etc etc etc…… god it’s such a downward spiral. Thank god she got SOME justice, good on that judge. It’s so awful that it got all the way to the supreme court. How stressful that must have been for her and her family.

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  3. Again and again we see the greedy piggy insurer making its own rules and applying them as Laws! I understand that going to a Federal Court it’s of great stress for an injured person and the insurers know this, they do intentionally bully and harass workers (not to mention the biased adversarial and maybe bribed medias) and try all ways because they can spend money while a worker may NOT because the insurer has cut the financial income.

    Where was the media during this case and why the insurer was NOT punished for making a criminal offense???

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    Xchangingvictim May 3, 2013 at 6:02 pm