Workers Compensation Regulator v Sheppard
[2018] QMC 22
•6 March 2018
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Workers Compensation Regulator v Sheppard [2018] QMC 22
PARTIES:
Workers Compensation Regulator
(Complainant)v
Brent Sheppard
(Defendant)
FILE NO/S:
MAG-00041779/17(9)
DIVISION:
Magistrates Court
PROCEEDING:
Criminal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
6 March 2018
DELIVERED AT:
Brisbane
HEARING DATE:
18 January 2018
MAGISTRATE:
J Payne
ORDER:
On each of the 6 charges the Defendant is found Not Guilty
CATCHWORDS:
COUNSEL:
Ms Farnden for the Workers Compensation Regulator
Mr Power for the Defendant
SOLICITORS:
Crown Law for the Workers Compensation Regulator
Fisher Dore Lawyers for the Defendant
The Defendant, Brent Riley Sheppard, has been charged with six offences against the Workers Compensation and Rehabilitation Act 2003 (The Act).
He is charged with four offences of making a false or misleading statement pursuant to section 534(2) of the Act and two offences of giving a document containing information that was false or misleading pursuant to section 534(3) of the Act.
Background
On 18 April 2013 and 12 August 2013 the Defendant made claims for compensation to WorkCover Queensland (WorkCover) under the Workers Compensation and Rehabilitation Act 2003.
The defendant was aged 23 years and working as a trainee with Silcar Pty Ltd, a telecommunication provider that was doing work on the NBN. He claimed compensation for an injury to his left knee sustained on 18 April 2013 when he was operating a vac truck and he lent forward to remove a rock from a pit[1]. He sustained a further injury to his left knee on 16 August 2013 as he exited a vehicle and his knee gave way[2].
[1] See Exhibit 2 and Exhibit 4.
[2] See Exhibit 2 and Exhibit 4.
The defendant also has a history of playing basketball. He started playing basketball at the age of 5 years and by the age 12 years he made his first Northern Territory State Team and played in the National Championships that year. To pursue his career in basketball he relocated from living with his parents in Darwin to live in Hervey Bay with an uncle who was an Australian basketball coach. His career continued to build and when he was 19 years he moved to Townsville. In 2010 when he was 20 years he played basketball in A-Grade, under 23’s and also Reserve League. He played two basketball seasons in Townsville each year, the wet and dry season. He spent about fifty hours a week participating in basketball including playing for the under 23’s, A-Grade and also coaching younger teens, refereeing and training. His involvement continued during 2011 and by 2012 it was his final year of the under 23’s and he was also competing in the A Reserves and A-Grade.
The defendant played basketball right up until 2012. However in 2013 he moved to Mackay from Townsville to start work with Silcar Pty Ltd and was not competing in basketball at the time of the first work injury on 18 April 2013.
The Law
Section 534 of the Workers Compensation and Rehabilitation Act 2003 provides:-
(1)This section applies to a statement made or document given-
(a)to the Regulator 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 Regulator, 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.
(1)A person must not give the Regulator, WorkCover, a self-insurer or a registered person a document containing information the person knows is false or misleading in a material particular.
Maximum penalty – 150 penalty units or 1 year’s imprisonment
(2)Subsection (3) does not apply to a person who, when giving the document –
(a) informs the Regulator, WorkCover, the self-insurer or the registered person, to the best of the person’s ability, how it is false or misleading; and
(b) gives the correct information to the Regulator, WorkCover, the self-insurer or the registered person, if the person has, or can reasonably obtain, the correct information.
(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.
Ms Farnden for the Workers Compensation Regulator submits there are three elements to the offence that the prosecution must prove beyond reasonable doubt:-
1. It must be proved that a statement was made or a document was given to WorkCover by the defendant for each of the offences;
2. The statement was known to the defendant to be false or misleading;
3. It was a matter material to the WorkCover claim.[3]
[3] Transcript Day 2, 19 January 2018, page 2-68, lines 7-16.
Element 3 is admitted by the defendant that “answers by a worker to questions by a WorkCover employee or registered person within the meaning of the Act, in relation to any prior injuries in circumstances such as the circumstances of the charges in the present case are material to the determination of a claim for compensation made pursuant to the Act”.[4]
[4] Exhibit 1 – Workers Compensation Regulator v Brent Riley Sheppard Admitted Facts.
Mr Power for the Defendant submitted that there were three elements of the offence being:-
1. That it must be proved that the statement made by the defendant is false or misleading;
2. That the statement was known to the defendant to be false or misleading and;
3. That was not a matter material to the claim. He conceded that there was a submission to element 3.[5]
[5] Transcript page 2-68, lines 7-16.
Element 1 is submitted differently between the Prosecution and the Defence. In her written submissions, Ms Farnden for the prosecution submitted that the prosecution has to prove that when the statements were made or documents were given the defendant knew the statement was false or misleading. “The prosecutions is not required to go so far as to prove that the statement was in fact false. What the prosecution must prove is that the defendant knew it was false or misleading”.[6]
[6] Outline of Closing Submissions for the Complainant, paragraph 19.
The parties do agree “there is a need to prove actual knowledge in relation to these offences and that it is a subjective test without an objective element in relation to each of these charges”.[7]
[7] Transcript page 2-81, lines 45 to line 1
The prosecution submitted that it was not believable that the defendant gave honest answers and that the objective features of the evidence would support a rejection of the defendants evidence.[8]
[8] Transcript, page 2-81, lines 31-37.
In this case it is unnecessary for me to decide if the Crown must prove beyond a reasonable doubt that the statements made or information given was false or misleading but to consider here subjectively whether the defendant knew the information given in a document or statement made by him was subjectively false or misleading in a material particular.
Credit
Having the opportunity to observe the defendant giving evidence in chief and under cross-examination I consider him to be a credible and reliable witness. I would go further and say that observing him in the witness box he was an impressive witness and had an authentic and believable demeanour as he gave his evidence.
Further there is objective evidence that leaves me satisfied the defendant was an honest witness and his evidence inherently believable.
This evidence includes:-
(i) The defendant injured himself at work on 18 April 2013 and was given permission by his doctor to return to work on 23 April 2013. He returned to work earlier than what he was medically allowed on 19 April 2013 stating that he was a trainee starting a new job in Mackay and he didn’t want to lose out on the information that he could be provided in the first few weeks of starting a new job.[9] This is not consistent with a person seeking to mislead WorkCover.
(ii) At the commencement of his traineeship with Silcar Pty Limited the defendant obtained a medical clearance through an organisation known as Jobfit. Jobfit prepared a medical report dated 28 February 2013. This Report or Assessment was in 2 parts, a medical report by Dr Kumar and a physiotherapist report by Ms Rachel Pappas. Ms Pappas is a senior physiotherapist at SportsMed NQ. This is the same physiotherapist practice that Ms Bell worked at and who the defendant had seen in 2012. Ms Bell’s evidence was that they shared notes.
(iii) This report was prepared prior to the first work accident. The defendant was also asked in that form whether he had any disabilities that may place him at risk at work and he said no. He was also able to perform a number of exercises including climbing ladders or stairs, squatting, bending, pushing, working overhead, working underground, working at heights, working in dusty areas and pushing. That document was completed prior to any work injury in April 2013 and made no mention by the defendant or Dr Kumar or Ms Pappas of any knee or leg problems.
(iv) The defendant had been to see a physiotherapist Ms Bell regarding an injury to his knee in 2012 at Sports Med North Queensland in Townsville. The defendant worked in Mackay at the time of his injury but returned to Townsville after his work injury. In 2014 the defendant again went to SportsMed NQ Townsville the same clinic that Ms Bell worked at. A person who was providing false or misleading statements or documents to WorkCover about an injury would be unlikely to return to the same physiotherapist or practice that his earlier medical history.
(v) In 2010 the defendant went to My Family Doctors at Kirwan in Townsville and he returned to that practice on 7 December 2013 and then saw them continuously after that time. Again objectively if the defendant was not being honest with WorkCover it would be unlikely that he would return to the same medical practice that had his medical history if he was seeking not to disclose material medical history.
[9] Transcript, page 2-35, lines 22-25.
For completeness I add there is nothing in the evidence of Dr Morgan that causes me to doubt the defendant’s honestly held belief that the basketball injuries prior to April 2013 were not disclosable or relevant. The defendant saw Dr Morgan on 26 September 2016 and the defendant’s answers to Dr Morgan are not inconsistent with his evidence here.
The Charges
Charge One (Mackay) – s.534(2) – False or Misleading Information
The defendant is charged with making a false statement to Dr Dammalapati, a statement that was false or misleading in a material in particular with words to the effect “that he had no previous knee problems, that on one occasion in the past his right knee gave way, never reoccurred and no left knee problems”.
I accept the defendant’s version of the event where it differs from Dr Dammalapati’s notes of the conversation.
Dr Dammalapati had no recollection of the conversation[10] and relied on medical notes. He said he might make his notes when the patient was with him but after discussing the patient’s needs and sometimes makes the notes when the patient is not with him. He said if there was a detailed conversation the abridged conversation was put in the notes.[11] He agreed that he was not suggesting in his entire career he’d never made an inaccurate note.[12]
[10] Transcript, page 1-51, lines 8-9.
[11] Transcript, page 1-47.
[12] Transcript, page 1-51, line 19.
I have accepted the defendant as a credible and believable witness. He said that he’d never had any problems with his right knee, and even though he couldn’t specifically remember the conversation he said that he would have explained the incidents regarding his left knee and how he had bruising but he did not say he had any injury his right knee.[13] I accept his recollection of the conversation.
[13] Transcript, page 2-35, lines 1-13.
Also, I accept that the defendant believed that the earlier problems with his left knee was bruising from which he had recovered and was an entirely different injury to what he experienced being the excruciating pain in his left knee in the work accident of 18 April 2013.
Further, Dr Dammalapati had allowed the defendant to not to return to work until 27 April 2013 but the defendant went back earlier on 23 April 2013. The defendant said he returned to work early as he was a trainee and didn’t want to lose out on the information during his first weeks of a new job. This behaviour of the defendant is wholly consistent with a person motivated to work and does not display a motivation to knowingly be false or misleading to the doctor who he saw about the work injury.
I am not satisfied the defendant made a false or misleading statement to Dr Dammalapati.
Charge One (Brisbane) s.534(3) False or Misleading Information
The defendant is charged that on 18 April 2013 when he lodged an application form to claim compensation from WorkCover from his injury it was asked in question 24 of the form “have you previously suffered any similar injuries or conditions”. The defendant answered “no”.
I accept the defendant is a credible and believable witness who honestly answered no to that question.
I accept the defendant’s evidence that he believed in 2010 and 2012 the injury to his left knee was bruising and wholly dissimilar to the injury received at work on 18 April 2013.
When the defendant hurt his left knee playing basketball in 2010 and 2012 he was playing basketball at a very high level. Even though he had hurt his knee in 2010 and 2012 he did not take any time of from basketball including continuing to train, play, coach and referee. This supports his belief the sports injuries were dissimilar to the work knee injury in April 2013.
He also had only recently before the work injury completed the form and obtained the medical clearance through Jobfit. This report made no mention of a problem with his left knee. This report was completed at the time he had no knowledge he would have a work accident.
Also the evidence of the defendant’s keenness to return to work is inconsistent with a motivation to be false or misleading to WorkCover.
I am not satisfied when the defendant answered ‘no’ to question 24 on the Application Form that he knew it was false or misleading in a material particular.
Charge Two (Brisbane) s.5534(2) False or Misleading Information
On 19 April 2013 the defendant had a telephone conversation with Leon Coromandel, a WorkCover claims representative. The defendant is said to have made a statement false or misleading in a material particular that consisted of words to the effect that he did not have any pre-existing conditions with his knee and he did not play sport. \
Mr. Coromandel could not recall the conversation and referred to his notes that he said was often a summary of what he had been told. He also had a template as a prompt for asking questions but the template did not have the actual question and Mr. Coromandel could not recall what question he may have asked.
The two statements of having no pre-existing condition and not playing sport are particularized by the Crown as false or misleading. It is said the defendant made a false or misleading statement by not having any pre-existing problems with his knee. The defendant said if he had been asked if he had any pre-existing injuries his answer would have been no. For the reasons I have already given as to the defendant’s credit I accept the defendant honestly believed he had no pre-existing injuries to his left knee and that part of his statement was not false or misleading.
Secondly the defendant is said to have made a false or misleading statement by saying he did not play sport whereas he played basketball. I accept the defendant’s evidence that he did not say to Mr. Coromandel the he did not play sport with the inference ever but that it is possible and more likely that he said he was not playing sport at the time of the telephone conversation in the work injury.
The defendant had been living in Townsville and was playing basketball in Townsville but moved to Mackay to work for Silcar Pty Ltd. At the time the defendant commenced work with Silcar Pty Ltd and also at the time of the first work injury in April 2013 the defendant had not commenced playing any basketball. At the time of his work injury the defendant was not playing basketball or any other sport.
I am not satisfied the defendant made a false or misleading statement to Mr. Coromandel in any regard.
Charge Four (Brisbane) s.534(2) False or Misleading Information
The defendant is charged with making a statement on 29 May 2014 in a conversation with Mr B Jones a claims representative employed by WorkCover that he “hadn’t had any prior knee injuries and the knee didn’t feel the same after his operation”.
I have already made findings of the defendant’s credit and I accept the defendant’s evidence that it was his honest response that he had no prior injuries.[14]
[14] Transcript, page 2-37, Line 39-40.
Again the defendant’s evidence is that he considered the injury to the knee in 2010 and 2012 to be bruising only, an external injury and not the significant injury felt on the inside of his knee in the work accident on 18 April 2013.
Also at this time the defendant wanted to play basketball and had the Mackay Meteors to train with them, but after the work accident and the surgery he said it was difficult to get back into the game. This is unsurprising as it seems he was misdiagnosed and given the wrong surgery. Further the defendant’s desire to play basketball at a high level and attempt to continue playing sport despite the work injury and the surgery is wholly inconsistent with the motivation of a person seeking to give false or misleading information to WorkCover.
I am not satisfied the defendant made a statement that was false or misleading in a material particular when he said he hadn’t had any prior knee injuries and the knee didn’t feel the same after his operation.
Charge Five (Brisbane) s.534(2) False or Misleading Information
On 3 June 2015 the defendant saw Dr Hayes. The defendant is charged with making a statement to Dr Hayes that was false or misleading to the effect that he never had any knee problems before the injury.
Again, I consider the defendant to be an honest and credible witness. His answer of no, he did not have any relevant past medical history with his left knee[15] is consistent with his evidence that he honestly believed that he did not have any prior injuries to his first work injury on 18 April 2013.
[15]Transcript, page 2-38, line 1-2
I am not satisfied the defendant made a statement to Dr Hays that was false or misleading in a material particular when he said he never had any knee problems before the injury.
Charge Six (Brisbane) s.534(3) False or Misleading Information
The defendant is charged that on 4 January 2016 by giving to WorkCover a Notice of Claim where in question 45 of that document requires notification whether he had any personal injury, illness, impairment or disability of a medical, psychiatric or psychological nature sustained either before or since the event and he recorded the name of a psychologist and did not provide references to treatment or injuries to his left knee before 18 April 2013.
The defendant did not fill out the document and it was prepared by his lawyers but he agreed that his answer to having any previous knee problems would have been “no”.[16]
[16] Transcript, page 2-38, line 1-2
Again I consider the defendant to be an honest and credible witness. His answer in a document prepared by his lawyers that only disclosed the name of a psychologist is consistent with his evidence that he honestly believed that he did not have any prior injuries to his left knee before April 2013.
I am not satisfied the defendant on 4 January 2016 gave a document to WorkCover knowing the document to be false or misleading in a material particulars.
Decision
Accordingly I find the defendant not guilty of all of the six charges before the court.
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