If you or your legal representatives have sufficient information to support a reasonable belief that a person has committed fraud and/or provided false information during their common law claim for damages, you must tell Workers' Compensation Regulatory Services without delay.
When are you required to make a referral?
Once you (or your legal representative) form a reasonable belief that a person (potential defendant) has committed fraud and/or provided false information to the insurer, and/or a registered person, you must advise Workers’ Compensation Regulatory Services (Workers’ Compensation Prosecutions Unit (WCPU) ) without delay. You must provide any information which supports the belief (section 536 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act)). You should not delay referral pending the outcome of a procedural step in the process such as a compulsory conference.
You must have facts or objective circumstances which provide tangible support that an offence has been committed. This does not mean an insurer must have proof beyond reasonable doubt prior to making a referral. Examples of when an insurer likely holds sufficient evidence to form a reasonable belief include:
- obtaining medical records which indicate a relevant pre-existing medical history which the worker has not disclosed to the insurer
- obtaining a witness statement or surveillance which indicates the worker may be exaggerating their symptoms and acting outside of their stated capacity
- receiving information which confirms the worker returned to employment, self-employment or unpaid work/volunteering during their statutory claim and did not disclose this work to the insurer
- receiving a report from a registered person where the report indicates the potential defendant has provided false and/or misleading information (i.e. information which could be said to be false and/or misleading due to conflicting evidence) to that registered person.
It is important to note that if a damages claim is settled and the insurer (or legal representative) settles the matter with knowledge or suspicion of the fraud, it is unlikely a prosecution will be able to proceed. A vital element of establishing fraud is proving that the insurer was deprived of the opportunity to make a decision based on all of the relevant facts and circumstances.
What do I need to provide?
If you have sufficient information to support a reasonable belief of fraud, you must give WCPU all the information you have in relation to the claim. Generally, this will include all relevant documents on both the statutory and common law files. If legal professional privilege is claimed over any of the documents, advise WCPU of this when making a referral.
If a prosecution is commenced, the prosecution’s duty of disclosure is broad, ethical in nature and it is an obligation that is owed to the court. Defendants are entitled to know the case against them, so they can properly defend the charges they face. A defendant is entitled to know the evidence that will be presented in support of the charges and whether there is any other material which may be relevant to their defence, including material relating to the credibility or reliability of a prosecution witness. A failure to disclose may result in a miscarriage of justice.
Can I advise someone that a referral has been made about them?
This depends on the circumstances of the case and it is recommended you contact WCPU to discuss your matter.
Generally, it will not prejudice a prosecution if the insurer advises the potential defendant that a referral has been made, especially where it appears the fraudulent behaviour is not ongoing.
In some cases, it will be recommended the insurer (or their legal representative) should ask the potential defendant about the suspected offending before advising that the matter has been or will be referred to the WCPU. For example, if information has been received that a potential defendant is working and has not disclosed that work to the insurer, it may be recommended the insurer ask the worker whether they have been able to return to work since sustaining the injury or lodging the Notice of Claim for Damages. If the potential defendant fails to disclose the work, the prosecution can rely on this to prove dishonest intent.
In most cases, once there is a preliminary view that there are reasonable prospects of a successful prosecution, the first contact WCPU will make with a potential defendant is to offer them the opportunity to participate in a record of interview or respond to specific questions prior to proceeding with filing a complaint.
How do I contact WCPU?
If you have any queries, questions or concerns, or if you’d like to refer a matter to the WCPU for investigation, please contact the WCPU by emailing firstname.lastname@example.org or calling (07) 3406 9927.