Workcover Corporation v Bedford No. Scciv-01-1471

[2002] SASC 169

WORKCOVER  v  BEDFORD
[2002] SASC 169

Magistrates Appeal
Criminal
Nyland J:

1. This is a prosecution appeal against the dismissal of a charge against the respondent.  The charge alleged that the respondent on or about 28 January 1994, at Adelaide, obtained by dishonest means a payment or other benefit under the Workers Rehabiliation and Compensation Act 1986 (as amended) contrary to s 120(1)(a) of the said Act.  The particulars set out in the complaint are as follows:

   (i)On or about 28 January 1994 at Adelaide, the (respondent) obtained a commutation payment in the sum of $70,090 from WorkCover Corporation by falsely pretending that he was entitled to a commutation of his income maintenance payment.

   (ii)The (respondent) dishonestly stated to WorkCover that he was unable to return to his employment following a work injury by reason of a permanent incapacity from being able to carry out his pre-injury duties as a boilermaker/welder.

   (iii)The worker was not incapacitated as he alleged but was capable of performing that type of employment and was performing that type of employment between February 1993 and the date of his commutation on or about 28 January 1994.

2. There was no dispute that the respondent suffered a work-related injury to his wrist on 30 November 1989.  Thereafter he was in receipt of WorkCover benefits until a payment by way of commutation was made to him on 28 January 1994.  The commutation followed a request by the respondent contained in a letter received by WorkCover on 25 November 1992.  That letter (Exhibit P8) is in the following terms:

   “I am writing to you asking for the payment of a section 42, I have a 50% disability in my right arm and can’t continue my trade as a boiler maker welder or associated trades as my arm is easily aggraviated (sic).  Since 30/11/89 my income has dropped dramatically, infact (sic) from an average of $50,000 pa after tax to present salary of $32,000 before tax or $24,000 nett.  During this 2 year period I have incurred large arrears on my home mortgage approx $223,000 and have had to sell my welding machinery and plant equipment to slow the effect of compound interest.  My only work option is to restart my own business and employ other boiler maker welders and other trades people who I know.  I would have no problem supplying work as I have many contacts in the building industry and an exellent (sic) reputation prior to 30-11-989.  I realize I will not receive (sic) income maintenance after computation but I strongly believe I can be successful in my own business employing others.  The amount I am asking is the max $60,000 this amount would pay my arreas (sic) and help replace machinery needed to start the business off.  I am married with two teenage sons who show an interest in the future of my desired business.  I feel this is our chance to rebuild our life.

   Awaiting your favourable consideration.   (Signed) L R Bedford.”

3. At trial, however, the appellant called a number of witnesses to establish that the appellant had, during the period from February 1993 until January 1994, received remuneration from employment for duties performed for others.  The learned magistrate found that the evidence of those witnesses did not contradict the respondent’s evidence that the work he carried out was of the lightest kind pertaining to welding, nor did it conflict with his evidence that the work was intermittent as opposed to continual.  The magistrate did, however, find that the respondent knew full well that he should have disclosed his employment to WorkCover.  He commented that the efforts of the rehabilitation officer, Ms Chin, as well as others, in attempting to return the respondent to the workforce in some capacity made it ludicrous to suggest that the respondent was not aware of that obligation.

4. The learned magistrate mentioned that the respondent, in not informing WorkCover of his employment, may not have wanted his weekly payments to be affected by that disclosure, but found it unnecessary to make a finding as to that particular matter.  As far as the application for commutation was concerned,  the magistrate found:

   “... that his motivation to not disclose that employment was simply to not delay the process of finally being able to exit the WorkCover system.  To that extent I find his omission amounts to a dishonest act or means.” (emphasis added)

5. Notwithstanding that finding, the magistrate then went on to find that the respondent was not dishonest in maintaining that he was unable to return to his former employment and said that the complainant had failed to convince him that the respondent had been able to resume his former employment duties.  The magistrate further found that the respondent was not dishonest in maintaining that he had a permanent partial disability and that had the respondent made WorkCover aware of his employment, he was nonetheless an appropriate candidate for consideration of commutation payment at a later time.  The fact that the respondent had been working did not necessarily exclude him from being a suitable candidate.

6. The learned magistrate finally found that in every respect the respondent had continued to meet the required criteria for commutation payment except insofar as he had failed to disclose his employment.  In those circumstances, the magistrate was not prepared to find that the respondent’s omission as to that matter was such as to cause the respondent to have obtained by dishonest means the commutation payment which was the subject of the charge.  He therefore found the respondent not guilty of the charge against him.

7. The failure by the respondent to disclose his employment was however the significant issue with respect to the proof of the complaint.  The evidence of the WorkCover witnesses established that the respondent would not have been granted a commutation in January 1994 if they had been aware of the particulars of his employment prior to that date.  The work being carried out by the respondent during that period of time was similar to work performed by him prior to his injury.  The income received therefrom was reasonably substantial.  The respondent conceded in evidence that he did not tell WorkCover about his income as he “didn’t want it to interfere when....earning money on the side”.  The respondent appears to have engaged in quite complex arrangements to conceal from WorkCover the fact that he was working at the same time as he was in receipt of benefits.  The respondent was clearly aware that the application for commutation would be delayed if he had revealed that he was engaged in remunerative employment.  The magistrate therefore correctly found that the repondent’s omission to disclose that employment was a dishonest act. 

8. Having reached that conclusion the complaint against the respondent was proved.  The respondent may well have been frustrated by some of the WorkCover procedures as there was no real dispute that the respondent had a permanent partial disability.  He also potentially was a suitable candidate for commutation at some future time.  All those matters might be relevant factors in mitigation of penalty.  WorkCover was however entitled to assess the repondent’s eligibility for a commutation payment in the light of all information as to the respondent’s work history.  The respondent deliberately chose not to disclose those matters to WorkCover and thereby obtained a commutation by dishonest means.  The appeal will therefore be allowed.  The finding of not guilty is set aside and a finding of guilt will be recorded.