WorkCover v Brennan
[2007] QMC 3
•3 October 2007
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
WorkCover v Brennan [2007] QMC 3
PARTIES:
WORKCOVER QUEENSLAND
(complainant)
v
TROY DANIEL BRENNAN
(defendant)
FILE NO/S:
MAG221876/06(7)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
3 October 2007
DELIVERED AT:
Southport
HEARING DATE:
11 July 2007, 12 July 2007, 13 July 2007
MAGISTRATE:
Lee G
ORDER:
Found guilty on two counts, one under section 533 and the other under section 534 of the Workers Compensation and Rehabilitation Act 2003 and not guilty on a third count under section 534 of that Act
CATCHWORDS:
CRIMINAL LAW - summary offences – workers compensation “fraud” – providing false and misleading statements – worker performed mother’s courier run - meaning of “calling”.
Workers Compensation Act 1990 (Qld) (repealed), s 194 WorkCover Queensland Act 1996 (Qld) (repealed), s 482, s 484, Schedule 3
Workers Compensation and Rehabilitation Act 2003 (Qld), s 136, s 533(1), s 534(2), s 535, s 579(2), Schedule 6
Jones v WorkCover Queensland [1999] QIC 63, cited
Perett v Hastie (1998) 159 QGIG 8, cited
Taikato v The Queen [1996] 186 CLR 454; [1996] HCA 28, cited
Wills v The Workers Compensation Board of Queensland [1993] QGIG 50, cited
COUNSEL:
F Lippett for the complainant
M O’Sullivan for the defendant
SOLICITORS:
Bruce Thomas Lawyers for the complainant
Derek & Dwyer Lawyers for the defendant
By Complaint filed 30 November 2006 TROY DANIEL BRENNAN (“the defendant”) is charged with the following offences pursuant to the Workers Compensation and Rehabilitation Act 2003 (Q’ld) (“the Act”)[1]:
[1] Sections 533 & 534 are in Part 2 of Chapter 12 of the Act; Part 2 “Fraud and false and misleading statements”; Chapter 12 “Enforcement”;
1.Between 16 February 2006[2] and 1 September 2006 at Southport in the Magistrates Court District of Southport in the State of Queensland TROY DANIEL BRENNAN did defraud WorkCover. (subsection 533(1) of the Act).
[2] The original Complaint said “4 June 2005”; it was amended to 16 February 2006 on day one of the hearing;
Particulars:
· On or about 20 June 2005, the defendant lodged an “Application for Compensation” dated 17 June 2005 which was received by the Southport office of WorkCover.
·
The Application for Compensation was accepted with benefits paid from
7 June 2005.
· On or about 16 February 2006, the defendant returned to a calling of a courier driver undertaking courier deliveries for Endeavour Couriers.
· The defendant did not notify Workcover of his engagement in this calling in the way stated in section 136 of the Workers’ Compensation and Rehabilitation Act 2003.
· There was no reasonable excuse for his failure to give the statutory notification.
· As a result of his non-compliance with the requirements of section 136 the defendant was paid compensation to which he was not entitled.
(section 136[3] imposes an obligation on a worker receiving compensation to notify WorkCover in certain circumstances)
[3] In Chapter 3 “Compensation”; Part 5 “Compensation application and other procedures”.
2.That on 27 July 2006 at Mermaid Waters in the Magistrates Court District of Southport in the State of Queensland TROY DANIEL BRENNAN made a statement to WorkCover within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 knowing the statement to be false or misleading in a material particular (subsection 534(2)).
Particulars:
· The statement was made verbally to Mr Garry Bax, a WorkCover area services officer.
· The statement was made in person when Mr Baxter [sic] attended the defendant’s residence on 27 July 2006.
· The statement which was false or misleading in a material particular, consisted of words to the effect that “he spends most days sitting at home watching TV, DVDs and reading. He sometimes goes out for a walk. His mother comes and visits him sometimes and takes him out just to get him out of the house”.
· The statement was false and misleading in a material particular, and the defendant knew the statement to be false and misleading in a material particular, as the defendant had returned to work as a courier driver undertaking courier deliveries for Endeavour Couriers on or about 16 February 2006.
3.That on 17 August 2006 at Southport in the Magistrates Court District of Southport in the State of Queensland TROY DANIEL BRENNAN made a statement to a registered person within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 knowing the statement to be false or misleading in a material particular. (subsection 534(2)).
Particulars:
· The statement was made verbally to Dr Stabler, a registered person within the meaning of the Workers Compensation and Rehabilitation Act 2003.
· The statement was made in person during a consultation on 17 August 2006.
·
The statement, which was false or misleading in a material particular, consisted of words to the effect that the defendant had “not been back at work and had been unable to work in any capacity since the incident of
7 June 2005.
· The statement was false or misleading in a material particular, and the defendant knew the statement to be false or misleading in a material particular, as the defendant had returned to work undertaking deliveries as a courier driver for Endeavour Couriers on or about 16 February 2006.
The defendant pleaded not guilty.
These proceedings have been instituted in a summary way under the Justices Act1886 pursuant to subsection 579(2) of the Act (entitled “Summary proceedings for offences other than against Chapter 8”). Offences under sections 533 and 534 of the Act fall within that category. It follows that the general provisions of the Justices Act1886 relating to practice and procedure apply to these proceedings. No issue relating to procedure has been taken in this case.
It is observed that as these are criminal proceedings the prosecution bears the onus of proving each element of each offence and that the standard of that proof is “beyond reasonable doubt”.
At the hearing Mr Lippett of Counsel appeared for the Complainant and Mr O’Sullivan of Counsel appeared for the defendant. Evidence concluded at the end of the second day of trial and counsel delivered their addresses on day three.
The prosecution called the following witnesses:
· Ms Fiona Toppenberg (compliance advisor for Workcover)
· Ms C.A. Bunn (customer advisor for Workcover and the defendant’s case manager)
· Mr G. Bax (area service officer for Workcover)
· Ms Margaret Foster (Northern Rivers Pathology Lismore)
· Ms Bernadette McKee (Northern Rivers Pathology Lismore)
· Ms Dierdre Carroll (Northern Rivers Pathology Lismore)
· Mr Phillip Collum (private investigator)
· Ms Ruth Rowan (Palms Pathology Service Tweed Heads)
· Mr Russell Leslie Funnell (Cosmetics warehouse manager)
· Mr Darren Cornale (Production line supervisor for same cosmetics company)
· Mr Martin Brown (Manager, Commonwealth Bank, Southport)
· Dr D. Stabler (orthopaedic surgeon) [by phone]
The following exhibits were tendered at trial:
Exhibit Description 1 Results of Telstra & Internet searches (Endeavour Couriers) 2 Optus record of mobile calls from defendant’s mobile phone 3 Defendant’s application for compensation 4 Workcover letter dated 23/6/05 accepting claim 5 Compensation remittance advices 10/2/06 to 15/9/06 6 WorkCover letter dated 14/2/06 7 Surveillance CD for 20,21,24 & 25 July 2006 8 Surveillance CD for 14 August 2006 9 Surveillance CD for 5 & 6 September 2006 10 Commonwealth Bank statements of defendant 1/2/06 to 31/7/06 11 Five Workers’ Compensation Medical Certificates 12 Report of Dr D. Stabler dated 17 August 2006 13 Letter of Dr Alan Mackenzie dated 29 April 2007 14 2005/06 Tax Return of Vera Brennan (defendant’s mother) 15 2005/06 Taxation Notice of Assessment of defendant’s mother (issued 19 April 2007)
The defendant’s mother Mrs Vera Anne Brennan gave evidence in his defence.
BACKGROUND
The defendant had been working for his employer “Aussie Group Shopfitting” since 9 February 2004. At the time of injury i.e. 4 June 2005 he was a qualified tradesman “shopfitter /cabinet maker”. His Application for Compensation was received by WorkCover 20 June 2005. He stopped work because of the injury which he described in his application as “cut 2 fingers left index and No 2 digit” due to a table saw incident whilst cutting a board.
In signing the application form dated 17 June 2005, among other things, Mr Brennan
“aggre[ed] to advise WorkCover if there [were] any change in [his] circumstances or if [he] bec[ame] aware of any matter that would make the above information false or misleading. In particular, [he] [would ] advise Workcover upon the occurrence of any change in my employment status during the currency of my claim”.
By letter dated 23 June 2005 from Workcover to Mr Brennan at [address] [exhibit 4], his claim was accepted upon conditions one of which is as follows:
Notifying WorkCover of any return to work
You must notify Workcover if you return to any paid or unpaid work, so you are paid the correct benefits. This applies to any kind of work (full time, part time or casual), with any employer or on a self-employed basis.
Please contact me on [telephone number] if you have any queries.
Mr Brennan was then paid weekly compensation with effect from 7 June 2005 onwards. Exhibit 5 consists of Workcover remittance advices of weekly compensation paid to Mr Brennan from 10 February 2006 to 15 September 2006. These advices were addressed to Mr Troy Brennan, [address] and were, generally speaking, sent to him fortnightly. Accompanying each fortnightly advice was a statement reminding Mr Brennan of his obligations to notify Workcover in the following terms:
You must contact Workcover immediately on [telephone number] if you do any work while you are receiving weekly compensation. This means any kind of work (full time, part time or casual) with any employer or on a self-employed basis.
By letter dated 14 February 2006 [exhibit 6] WorkCover advised the defendant the need to have a current medical certificate for compensation to continue. Among other things the letter said:
If you have returned to work and have not previously advised me of the date you returned to work, or if you have any further queries, please contact me on [telephone number].
Exhibit 11 consists of five (5) Workers Compensation Medical Certificates. The first one is dated 27 February 2006 by Dr Alan Mackenzie – “totally incapacitated for work from 14 February 2006 to 8 March 2006. The second and third are dated respectively 8 March 2006 and 17 May 2006 by Dr Dilip Gahankari – “totally incapacitated for work from 9 March 2006 to 17 May 2006” and “18 May 2006 to 19 July 2006”. The fourth medical certificate is dated 12 July 2006 by Dr Alan Mackenzie – “totally incapacitated for work from 15 July 2006 to 15 September 2006”: and the fifth is dated 12 September 2006 by Dr Alan Mackenzie – “fit for suitable duties” and “fit to drive vehicle for work purposes. No use of injured finger”.
CHARGE ONE
The relevant statutory provisions of the Act are as follows:
533 Offences involving fraud
(1)A person must not in any way defraud or attempt to defraud an insurer.
Maximum penalty--400 penalty units or 18 months imprisonment.
535 Particular acts taken to be fraud
(1) This section applies if a person--
(a) lodges an application for compensation with an insurer; and
(b) engages in a calling; and
(c)without reasonable excuse, does not inform the insurer, in the way stated under section 136 of the person's engagement in the calling.
(2)If compensation is paid by the insurer under the application to the person or anyone else--
(a) after the start of the engagement in the calling; and
(b)before the insurer is informed in the way stated under section 136 of the engagement in the calling;
the person is taken to have defrauded the insurer of the payments under section 533.
136 Worker must notify return to work or engagement in a calling
(1)A worker receiving compensation for an injury must give written notice within 10 business days of the worker's--
(a) return to work; or
(b) engagement in a calling.
Maximum penalty--50 penalty units.
(2) The notice must be given to the insurer.
(3)The notice may be a certificate in the approved form of a doctor stating the worker's capacity for work.
The word “calling” in subsections 136(1) & 535(1) is defined in Schedule 6 of the Act as follows:
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.
In terms of the legislative provisions cited, it is not disputed that:
·
the defendant did not actually notify Workcover within 10 business days of
16 February 2006under section 136;
· the prosecution is not relying on subsection 136(1) (a) i.e. that the defendant returned to work on 16 February 2006. [See particulars 3 & 4 of charge one in the Complaint – the alternative of “a calling” in s 136(1)(b) is relied on];
·
the defendant lodged an application for workers compensation (subsection
535(1)(a));
· compensation was paid by WorkCover under that application and received by the defendant during the period 16 February 2006 to 15 September 2006 by which time he had notified of his intention to start a courier run from 18 September 2006 (subsections 136(1) & 535(2)).
For charge one the main issues are:
· whether the defendant engaged in a calling between February 2006 and September 2006 (sections 136(1)(b) and 535(1)(b)) which impacts on whether he had an obligation to notify under section 136; and
· whether the defendant, without reasonable excuse, failed to notify Workcover pursuant to section 136 (section 535(1)(c)).
Did the Defendant Engage in a Calling?
The prosecution called a number of independent lay witnesses in support of its case that the defendant started undertaking courier activities for Endeavour Couriers from 16 February 2006. Although there were differences in the detail of their evidence, its thrust was that the defendant called upon Northern Rivers Pathology at Lismore twice daily to collect pathology specimens. He also called at Palms Pathology Service at Tweed Heads twice daily to collect specimens and also at a Kawara Cosmetics company twice daily to collect samples for testing.
All lay witnesses knew the defendant and recognised him as the person who, by and large, performed the pickup and delivery functions of a courier for Endeavour Couriers during the period up to September 2006. In this respect it is not intended to reiterate all the evidence but to some features by way of illustration. For example, Ms Foster (Northern Rivers Pathology) said the defendant started performing courier duties for Endeavour Couriers in about January 2006. He used a small red car. Other evidence was that this car belonged to his fiancé. That witness frequently saw him twice per day. He came alone about 80% of the time and the older lady about 20% of the time. She only saw the defendant and the older lady together on one occasion.
Ms Mc Kee (Northern Rivers Pathology) said she first saw the defendant in about July 2006. She could not say whether an older lady was accompanying him in the red car. Another witness Ms Carroll (Northern Rivers Pathology) said the defendant first started doing courier duties for Endeavour Couriers from January/ February 2006. She was firmly of the view that the defendant mainly performed the courier duties and not the older lady. She may have seen the defendant and the older lady together on one occasion. Ms Rowan (Palms Pathology Service) described the defendant as “our courier” who she thought started early 2006. She first saw an older lady perform these courier duties in about August 2006. She never saw the defendant and the older lady together and the defendant was the most regular courier.
Mr Funnell (Kawara Cosmetics) saw the courier 90% of the time the courier attended. He noticed the defendant performed courier duties about 80% of that time. While he said an older lady also called on occasion, he was quite clear in saying that the defendant called 80% of the time he saw the courier. In cross examination he said he never saw the older lady drive the red car. He said Endeavour Couriers started in either December 2005 or January 2006. Mr Cornale (Kawara Cosmetics) said he knows the defendant as their courier but said that the older lady performed courier duties on occasion. When asked in cross examination as to whether the pattern of who did the courier work changed from around 18 September 2006, this witness was quite firm in his response that the pattern remained much the same as before 18 September 2006. This is the day the defendant had previously notified Workcover that he was to start the courier run.
It was argued for the defence that these witnesses could not give a detailed or clear recollection of precisely who provided the courier service to their respective businesses or the frequency of service provided by either the defendant or his mother, because this is a mundane activity of short duration on each visit which occurred over a long period of time. Some confusion on the part of some witnesses may have been introduced when they were asked to account for who performed these courier duties from September 2006 to October/ November 2006 and then into 2007 at which time the defendant decided to have further surgery. He had surgery in April 2007. The defendant advised WorkCover that he would start the courier run on 18 September 2006. Then in October or November 2006 he advised WorkCover that he would stop this run. While there may have been some confusion for some witnesses in this respect, I am satisfied that these witnesses were quite clear in their evidence that the defendant performed courier duties a majority of the time during the period under consideration i.e. from February 2006 to September 2006.
In her evidence the defendant’s mother said she was conducting the courier run in the red car between February 2006 and September 2006 and she was paid $800 per week. During this period, as she was concerned for her son’s health and welfare he accompanied her as a passenger on the courier run to assist him in re-engaging with the outside world. He took a pillow and slept in the car. She always drove but he often walked into the centres. It was argued that this amounted to no more than “work experience of an unpaid nature” which would not ordinarily lead to remuneration. Therefore, if the mother’s evidence is accepted, this activity is not a “calling”.
The prosecution tendered surveillance CDs showing the defendant driving the red car and performing courier duties at the various locations described above. I have viewed the CDs a number of times since the hearing. Relevantly, exhibits 7 & 8 show the defendant driving the red car and undertaking courier duties on Friday 21 July 2006, Monday 24 July 2006, Tuesday 25 July 2006 and Monday 14 August 2006. The defendant is clearly shown placing and removing boxes in and from the car. On several occasions he was walking briskly and on one occasion he was running. He was seen carrying boxes or eskies of various sizes and on one occasion he was using a hand pushed trolley. The CDs did not disclose the defendant experiencing any discomfort, that he was having any difficulties in what he was doing or that he was favouring his injured left hand. While there is no dispute that the defendant was alone on 21, 24 & 25 July 2006 as the mother’s evidence indicates, it was patently clear from the CDs that he was alone in the car on those dates. While the glassed windows etc were tinted, it was still quite easy to see inside the vehicle on many shots to form the view that he was alone.
The defendant’s mother said the defendant did undertake courier work alone on 21, 24 & 25 July 2006. But he was only doing it for her because she was ill. Exhibit 13 is a letter dated 29/4/07 from Dr Alan Mackenzie who is the mother’s general practitioner and who authored a number of medical certificates for the defendant. In it he states what the mother said in evidence to the effect that she has had longstanding asthma and chest problems and, because her symptoms arise rapidly particularly during winter, she has antibiotic on hand. The doctor then said:
I saw Vera on Tuesday 8/8/2006, when she came in to get medication. She had had a recent exacerbation of infection and had used her previous 14 day prescription of Zinnat.
This letter was not tendered as part of the defendant’s case. Rather, the defence required its tendering by the prosecution as the mother was cross examined on it. Although this course was quite legitimate, the doctor was not cross examined nor was his records made available.
The mother did not provide any other documentary evidence to corroborate her version. For example, the prosecution submitted that it would have been easy to provide pharmaceutical records of prescriptions given the importance of this issue. Further, the prosecution submitted that the letter is dated 29 April 2007 at which time the defendant and his mother had the opportunity of examining the prosecution’s brief. It was obtained in a belated attempt to explain why the defendant was caught doing the courier run alone on surveillance.
In so far as the letter dated 29 April 2007 purports to support the mother’s explanation as to why the defendant performed the courier duties encaptured on surveillance, I attach little weight to it for the following reasons:
· This is a letter provided pursuant to a request some nine months after the event. On its face, the letter does not state the source of the doctor’s information. For example, did the explanation of “recent exacerbation” etc for attending on 8 August 2006 in the passage cited above come from contemporaneous notes made on 8 August 2006, or was it provided by the mother at the time she requested the 29 April 2007 letter?
· The doctor does not specify in the letter the critical dates in which the mother alleges that she was so ill that the defendant had to perform her courier duties.
· If the doctor did see the mother on 8 August 2006, this is 14 days after 25 July 2006. The doctor would not have been in a position to know that the mother was actually ill on 21, 24 & 25 July 2006 to the extent that she could not work.
· In accepting the prosecution’s submission, the letter was most likely requested at a time when the defendant had full knowledge of the prosecution evidence against him including the surveillance. The first return date was 21 December 2006 with appearances by legal representatives for both sides.
· The content of the letter quoted above is obviously a recount of what the mother told the doctor at some stage i.e. it was not within the doctor’s own knowledge.
· The mother’s explanation as to why she could not drive on 21, 24 & 25 July 2006 would be a critical one for the defence to overcome otherwise compelling surveillance evidence. I note that the letter could only have been tendered as part of the defendant’s case if the doctor was called to give evidence or at least be available for cross examination. Yet, it found its way into evidence because the mother was cross examined on it without the doctor being tested on it. The doctor’s records were not available.
I accept the prosecution’s submission in rejecting the mother’s explanation as to why the defendant was driving on 21, 24 & 25 July 2006. It is quite a co-incidence that the mother was so sick on those very days that the defendant was seen undertaking courier activities alone on surveillance particularly given in the context of the mother requesting her doctor’s letter after having seen the prosecution brief beforehand.
Further, the mother’s evidence was quite vague when she said she was off again later. This evidence may well have been directed to explaining why the defendant was undertaking courier activities alone in the red car on 14 August 2006 [exhibit 8]. There is no evidence from her doctor regarding the 14 August 2006.
The prosecution also referred to the frequent use of the defendant’s streamline Commonwealth bank account to buy fuel for the red car [exhibit 10]. Total fuel purchases from March to July 2006 according to a schedule tendered by the prosecution came to $1,609.54. This is inconsistent with the notion that the courier run belonged to the defendant’s mother even though income from courier activities was included in her 2005/06 tax return. The mother said that the defendant did pay for fuel using his streamline account. However, she said she reimbursed him in cash. Her evidence is that she kept her son’s receipts and gave them to the accountant. No business records regarding income and expenses of this courier business were kept, or if kept, not adduced in her evidence. Documentary evidence has not been provided to corroborate the mother re-imbursing the defendant in cash for using his bank facility.
The mother also explained that the defendant’s mobile phone was used in connection with the courier run on the basis that his phone was on a cheaper plan than hers. Exhibit 2 is an Optus record of the defendant’s mobile phone account.
I note that in her 2005/06 tax return [exhibit 14] the mother declared $11,252 as “total business income” from her business activity described as “courier service”. She declared total business expenses of $4,889. Unfortunately, exhibit 14 does not include a “Business and professional items schedule” in which those expenses would have been itemised. It is not clear why her 2005/06 gross courier earnings in the period of some four or five months from February to June 2006 are only $11,252 in 2005/06 given that, according to her evidence, she was paid $800 gross per week and the defendant was paid nothing. Ms Toppenberg gave evidence during cross examination that the defendant’s father did the books for the courier business. I find the mother’s evidence unsatisfactory on this issue.
I accept the prosecution’s submissions that it would be dangerous to accept the mother’s evidence that she re-imbursed the defendant in cash for fuel and for the use of his mobile phone without some corroboration particularly given the mother’s strong interest in the outcome of this matter. Not only was the defendant’s bank facility for fuel frequently used as well as his mobile phone, it is common ground that the red car belonging to the defendant’s fiancé was used for the courier run each and every day of the week (Monday to Friday) subject to minor exceptions during the period February 2006 to September 2006. The mother says she used that car for her business the proceeds and expenses of which she included in her tax return. On its face, this in itself would be of no direct benefit to the fiancé. Taken in isolation, it would be a clear detriment to the fiancé regarding wear and tear of the car with consequent depreciation. I note however that the defendant’s mother and father are guarantors for the defendant’s and his fiancé’s housing loan. The mother’s evidence in this respect was vague and therefore unsatisfactory. I am of the view that the daily use of the red car for the courier business is inconsistent with notion that the defendant had no active involvement in the courier run. The mother’s explanation that the defendant accompanied her as a passenger only was no doubt an attempt to explain why the defendant’s bank facility and mobile phone were frequently used. I do not accept such explanation.
In conclusion, I find that the defendant undertook activities as a courier for Endeavour Courier from February 2006 to 1 September 2006. Most of the time he drove the red car and collected and dropped off items at Northern Rivers Pathology (Lismore), Palms Pathology Service (Tweed Heads) and the cosmetic company (Kawara Cosmetics). For reasons already outlined, I do not accept the mother’s evidence that she performed the courier run between February 2006 and September 2006.
The prosecution’s alternative submission was that even if the mother’s evidence were accepted, as the defendant accompanied her and actually walked in to the above centres to pick up and drop off items, this would also fall within the definition of “calling”. He would have done about 50% of the work. Although it is not necessary to express a view in light of my previous findings, I would agree with that submission.
Although no evidence has been adduced by the prosecution that the defendant was remunerated or rewarded for this activity, for reasons to follow, I do not think that is necessary.
It was submitted for the defendant that his activities in engaging in courier work were not a “calling” within the meaning of the Act (cited above). It amounted to work experience of an unpaid nature. “Calling” connoted something more akin to formal appointment, engagement in employment of some description or at least an activity which would give rise to remuneration. The courier run was a one person job. On the other hand the prosecution submitted that the word “calling” has a much broader meaning.
To understand the current meaning of “calling” and what activities come within its purview, it is necessary to consider the legislative history.
In considering an offence of fraud under section 194 of the former Workers Compensation Act 1990, Williams P in Perrett v Hastie (1998) 159 QGIG 8 at 10[4] said;
“Much time was taken before the Magistrate and before this court in debating what was meant in section 194(2) by the expression “engages in any calling”. I do not propose to refer at length to the authorities placed before me by Counsel as to the niceties of the legal definitions which may be placed on the term “calling”. When section194(2) refers to “engages in any calling” that must be construed as referring to a return to gainful employment; as the average reasonable worker would say, he had returned to work.”(my emphasis)
[4] QGIG – “Queensland Government Industrial Gazette”;
Subsection 194(2) of the Workers Compensation Act 1990 provided:
“A person to whom or on whose account compensation under this Act is being paid on account of total incapacity for work who, without reasonable excuse, engages in any calling without informing the Board of the persons return to work, or intention of returning to work, is to be taken to have defrauded the Board of all payments made by the Board to or on account of such person after commencement of such engagement in a calling and before the Board is so informed.”
There was no definition of “calling” in the Workers Compensation Act 1990. The 1990 Act was repealed and replaced by the Work Cover Queensland Act 1996 as a result of the Kennedy Report. The 1996 Act provided a similar scheme for fraud offences (s 482, s 484) but included for the first time a definition of “calling” in schedule 3. The 1996 Act was then repealed and replaced by the current Act of 2003 which includes the same definition of “calling” in schedule 6.
Thus, the meaning attributed to “calling” of “return to gainful employment” and “returned to work” in Perrett v. Hastie which the defendant contends for in this case is a construction more akin to the position that applied in the context of the 1990 Act which did not have a definition of “calling”. Perrett v. Hastie was cited in Jones v. WorkCover Queensland [1999] QIC 63[5] concerning a prosecution of fraud under section 484 of the 1996 Act. However, that was in the context of proving a mental element rather than an analysis of the meaning of “calling”.
[5] QIC – “Queensland Industrial Court”;
It is clear from the explanatory notes to the then WorkCover Queensland Bill of 1996 that the 1996 Act was intended to introduce a wide range of reform being a total re-write of the old workers compensation legislation in Queensland. In particular the explanatory notes of the 1996 Bill at 171 provided:
“Clause 484 is intended to assist in detecting offences involving fraud under this part. It replaces sections 194 sub-section 2 and sub-section 3 of the Workers Compensation Act 1990.
The intent of a provision is to clearly state that persons applying for, or in receipt of, compensation for total or partial incapacity can not engage in a “calling” without first notifying either WorkCover, or their self insured employer. The term “calling” is defined in schedule 3 of the WorkCover Bill.”
In my view the introduction of the definition of “calling” in the 1996 legislation, which was re-enacted into the current Act, expresses a clear legislative intention to broaden the scope of the meaning of “calling” beyond strict engagement in employment, or a strict return to gainful employment. It encompasses situations such as the present where a person performs courier work even though there is no evidence that the defendant was remunerated or rewarded.
I am of the view that, in participating in the activity of courier work from 16 February 2006, he engaged in a calling within the meaning of the Act. Therefore, he had an obligation to notify WorkCover pursuant to section 136.
It has been submitted for the defendant there is no reference to a “calling” in any of Workcover’s correspondence with the defendant. Nor was this discussed with him by his case manager Ms Bunn. The relevant passages have been cited above under the heading “Background”. The submission is to the effect that the defendant did not know of the concept of “calling” and as he did not know, he was not aware that he had to notify WorkCover. This will be discussed under the next heading.
Did the Defendant have a reasonable excuse for not informing Workcover?
It is not disputed that the defendant had not notified WorkCover within 10 business days of 16 February 2006. Further, it is not disputed that he contacted Workcover on 1 September 2006 to advise that he will be starting with Endeavour Couriers on
18 September 2006. On 4 September 2006 he personally advised Ms Bunn that he intended starting that work.
It was submitted for the defendant that he actually started the courier work on
18 September 2006but in October or November 2006 he contacted Workcover to say he was going to stop this work because of difficulties with his medication. By 6 December 2006 the defendant decided to have surgery. The submission continues to the effect that the actions of the defendant in advising WorkCover on 1 & 4 September 2006 of starting the courier run, then advising them later in the year that he could no longer do that work, followed by his surgery in April 2007 are all actions consistent with an honest person. The defendant was entitled to compensation this year during periods relating to his surgery. Brief reference was made in submissions to Taikato v. The Queen [1996] HCA 28 on the question of “reasonable excuse”. It considered, among other things, the meaning of reasonable excuse in section 545E(1) & (2) of the New South Wales Crimes Act 1900 in respect of possession of a prohibited article in a public place. While that case provides a thorough analysis of that provision, as pointed out in the joint judgement of Brennan CJ, Toohey, McHugh and Gummow JJ. at page 7 of 29:
…decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.
The prosecution submit that the notices sent to the defendant were sufficient for any reasonable person to understand. While the notices do not refer to a “calling” as such, they are, in my view, of wide import to include “calling” and that a reasonable person would know to contact WorkCover if starting an activity such as “courier”. In particular, in the application for compensation itself references were made to obligations of advising of any change in circumstances or of becoming aware of any matter that would make the information in the application false or misleading. In my view, this itself encompasses a continuing obligation on the defendant to advise of these matters. Starting a courier run is at least a material change in circumstance that would require notification and it includes a matter that would make the information in the application misleading. Also, references in the letters and remittance advices to “work” and “employment” are described in a broad way to encompass paid and unpaid, employed and self-employed, full time, part time or casual. Even if there were some doubt about it, one would have thought that a reasonable person acting in the ordinary course of affairs would have been put on inquiry warranting a phone call to Workcover to clarify the matter.
I do not accept the defendant’s submission that as he is of limited intellect having only achieved at mediocre level at school (year 9), he was not able to fully understand the workers compensation system or the notices sent to him. He has completed a trade after serving an apprenticeship and has had reasonable employment experience. There is no reliable evidence before me to indicate that he is other than of reasonable ability.
Although there is no express reference to “mental element” in the statutory provision creating this offence, it is common ground in this case that the prosecution must prove this i.e. an unequivocal consciousness of guilt: see Wills v. The Workers Compensation Board of Queensland [1993] 144 QGIG 507 at 508; Jones v. Workcover Queensland [1999] QIC 63. Perhaps this is encaptured in the phrase “without reasonable excuse” in subsection 535(1)(c).
The prosecution referred to some salient features of the evidence to support “mental element” on the part of the defendant including:
· In a phone conversation with the defendant on 21 July 2006 Ms Bunn had recorded him as saying that he was unable to work, he can’t wash up, his hand is “stuffed” and it needed further surgery, he has been sleeping and had vomited. He had been too sick to get out of bed. I note that he drove the red car all day on Friday 21 July 2006 and also on Monday 24 and Tuesday 25 July 2006: see exhibit 7. It appears no mention was made of the fact that he was performing courier activities on 21 July 2006.
· Mr Bax called at the defendant’s home on 26 July 2006 but he did not see him then. He returned on 27 July 2006 and spoke to the defendant. The defendant is recorded as saying words to the effect he spends most days sitting at home watching TV, DVDs and reading. He sometimes goes out for a walk. His mother comes and visits him sometimes and takes him out just to get him out of the house. She drives mostly but he drives on occasions. He was frustrated and said he needs to work as he is in debt to his parents. There was no mention of the fact that he had done courier duties all day on Friday 21 July 2006, Monday 24 July 2006 and Tuesday 25 July 2006.
· In a phone conversation between the defendant and Ms Bunn on 15 August 2006 he is recorded a saying that he sleeps half the day due to his medications, he wants to work but can’t because of the pain and medications, it is not possible to work, his hand is butchered, he cannot drive because of the medications. The defendant was agitated during that conversation. Yet on 14 August 2006 he was undertaking courier activities without any apparent difficulties: see exhibit 8 and he made no mention of this in the conversation on 15 August 2006.
It is obvious that at no time did the defendant tell either Ms Bunn or Mr Bax that he had undertaken courier duties on those occasions encaptured by CD surveillance i.e. 21, 24, 25 July 2006 and 14 August 2006. This is a significant feature of this case. It appears the defendant was painting a picture of being unable to do much at all and yet he managed to undertake all courier activities without apparent difficulty on those days at least.
Further, I note that the defendant consulted Dr Stabler on 17 August 2006 (exhibit 12). This was only three days after he was recorded on surveillance undertaking courier activities including driving the red car on 14 August 2006. In Dr Stabler’s detailed 10 page report, I note he said at page 5 under the heading “Restrictions”:
I [i.e. Dr Stabler] started to ask Mr Brennan about specific activities with his left hand but he reported quite firmly and definitely that he was not able to do anything with his left hand without pain and he therefore avoided use of the left hand as much as possible.
Notwithstanding that, I note that on 1 September 2006, only 15 days after his consultation with Dr Stabler, the defendant notified Ms Bunn that he intended to start a courier run on 18 September 2006. In the absence of evidence to suggest reasons for a dramatic improvement in his left hand within 15 days, it appears that his advice to Dr Stabler is inconsistent with his notification on 1 September 2006 of starting a courier run indicating he can perform that activity.
While Dr Stabler acknowledged later in his report that the defendant appeared to be in pain (although he had a full range of movement), the point is that the defendant made no mention of the fact that he undertook courier activities on 14 August 2006. One would have thought this to have provided a good opportunity for him to explain to Dr Stabler any purported difficulties he had while undertaking that activity. This supports the view outlined in previous paragraphs that the defendant was simply painting a picture of not being able to do much at all. It is also noted that the CD surveillance of 14 August 2006 [exhibit 8] did not give any indication that the defendant was experiencing difficulty in performing courier duties for that entire day. Indeed, after noting the defendant’s expression of pain, and the type and amount of his medications, Dr Stabler said at pages 9 & 10:
……but he should be able to perform a suitable duties programme with his right hand only, if appropriate work could be found for him, and he could of course use his left thumb and index fingers, and it would certainly appear to me that he would be able to drive a motor vehicle. (my emphasis)
For the reasons previously outlined, I have found that the defendant started courier activities in February 2006. The evidence of the independent witnesses which is accepted, the daily use of the red car belonging to his fiancé, the frequent use of his streamline account and mobile phone and the defendant’s failure to advise of his courier activities encaptured on surveillance all point to a clear inference, in my view, that the defendant was fully aware that he should have told Workcover in a timely way about his courier activities and he did not do so until 1 September 2006. For the period 16 February 2006 to 1 September 2006 I am satisfied the prosecution have proved beyond reasonable doubt the mental element.
I conclude that the prosecution have proved beyond reasonable doubt each and every element of the offence under section 533. I am satisfied that all of paragraphs (a), (b) and (c) in subsection 535(1) are satisfied which then enlivens subsection 535(2). I am satisfied that compensation was paid by WorkCover upon the defendant’s application after he started undertaking courier work on 16 February 2006 and before Workcover was informed pursuant to section 136 on 1 September 2006. As all matters in subsection 535(2) have been satisfied, the defendant is taken to have defrauded WorkCover.
It was submitted on the defendant’s behalf that no evidence was led to prove that the defendant received compensation to which he was not entitled. While this was a particular to the charge in the Complaint, it was not necessary for the prosecution to lead that evidence as it is not an element of the offence: see sections 533 & 535.
In similar vein, it was submitted that there is no evidence of “any untoward payment being received by [the defendant] or any untoward benefit being received”. Again, this is not an element of the offence. Further, in determining whether a person has engaged in a calling, it is not necessary to prove that the person received remuneration or reward: see the definition of calling in Schedule 6.
I am satisfied that the prosecution have proved all elements of this offence beyond reasonable doubt. I find that charge 1 has been proved.
CHARGE TWO
The relevant statutory provision is as follows:
534 False or misleading information or documents
(1) This section applies to a statement made or document given--
(a) to the Authority or WorkCover for the purpose of its functions under this Act; or
(b) to an entity or person as a self-insurer; or
(c)to a registered person for the purpose of an application for compensation or a claim for damages.
(2)A person must not state anything to the Authority, WorkCover, a self-insurer or a registered person the person knows is false or misleading in a material particular.
Maximum penalty--150 penalty units or 1 year's imprisonment.
………….
(5) It is enough for a complaint against a person for an offence against subsection (2) or (3) to state the information or document was false or misleading to the person's knowledge, without specifying which.
As referred to earlier, on 27 July 2006 the defendant is not recorded as making any reference at all to the fact that he had undertaken courier activities on 21, 24 & 25 July 2006 to Mr Bax. This conversation only occurred some two days after this. So, when the defendant made comments such as spending most days sitting at home watching TV, DVDs and reading, his mother visiting sometimes and taking him out, and remaining silent on his recent courier activities, I am of the view that he was consciously attempting to paint a picture of remaining debilitated to the extent that he can’t do much at all. This is misleading to say the least. It is highly relevant for an insurer to know the capabilities of an injured worker and how that person is rehabilitating and reintegrating back into the workforce what ever that activity is. The statements made are misleading in a material particular.
In evidence the defendant’s mother said the defendant accompanied her all the time in the red car while she performed courier duties. Even if this evidence was accepted, it was misleading for the defendant to say what he said to Mr Bax. The statements made by the defendant strongly imply that he spends most days at home and that he can’t do much at all. This is misleading (to say the least) in that as recently as two days before 27 July 2006 he was undertaking courier activities all day as well as 21 & 24 July 2006.
I am satisfied that the prosecution has proved all elements of this offence beyond reasonable doubt. I find that charge 2 has been proved.
CHARGE THREE
It is not disputed that Dr Stabler is, and was at all material times, a registered person within the meaning of the Act[6]. It is not disputed that the defendant consulted Dr Stabler (orthopaedic surgeon) on 17 August 2006 in his capacity as an independent medical consultant at the request of WorkCover.
[6] See Schedule 6 of the Act;
In his report dated 17 August 2006 (exhibit 12), Dr Stabler said at page 3 under the heading “Time off Work”:
The claimant stated that he has never been able to return to work in any capacity since the injury of 07.06.2005. He stated that he [has] not been able to return in any capacity, even on light duties, since the injury of 07.06.2005
Again at page 8 of the report at point 4:
The claimant has stated quite definitely that he has not been able to work in any capacity since the injury of 7.6.2005
In evidence at the hearing Dr Stabler said he had to rely on notes he had made at the time. He could not specifically remember this consultation as he performs many of these in his practice. When specifically questioned about the comments in his report cited above, Dr Stabler referred to his notes which relevantly read “r.t.w.o.s.d.p” which means “return to work on suitable duties program”. The effect of Dr Stabler’s oral evidence is that he asked the defendant whether he had engaged in a return to work on suitable duties program. The defendant gave an answer in the negative, which according to the evidence is a correct answer. In my view this qualifies the comments made by Dr Stabler in his written report. There is no evidence to suggest that the defendant had ever engaged in such a program in respect of pre-accident employment or any other employment. It is also clear that he had never returned to his pre-accident employment.
Based on Dr Stabler’s evidence at the hearing, there is a reasonable doubt that the defendant provided an answer that was false or misleading. On one view he simply answered the question accurately as to whether he had engaged in such a program. While it could be suggested that the defendant was not as candid as one might expect in the circumstances, I am of the view that there is a reasonable doubt that he provided the false or misleading statement particularised in the Complaint to Dr Stabler.
I find that charge 3 is not proved.
CONCLUSION
Charges 1 & 2 are proved and charge 3 is not proved. I make no formal orders at this stage. I will hear submissions as to sentence and any other outstanding matters raised by the parties.
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