When Getting Back to “Work” is an Offence. Don’t Throw Your Personal Injuries Claim Away

Workers’ compensation benefits are a huge safety net and a fair entitlement for people who suffer injuries at work.  They can mean the difference between financial ruin after an accident and the ability to get back on your feet with reasonable support. 

However, the receipt of those benefits comes with a positive obligation to keep WorkCover aware of what you are doing and are capable of doing, workwise. Forget to let WorkCover know, even innocently, and you can find yourself back in financial distress and with a criminal conviction. The so-called “gig economy” has added to this confusion. 

Here’s an example of how it often plays out and some tips on how to simply avoid the pitfalls. 

• You genuinely injure your back at work
• You apply for and receive workers’ compensation benefits whilst you’re unable to work
• You’re told at the start of the claim that you need to advise WorkCover if your circumstances change and if you return to any paid or unpaid work, with an employer or on a self-employed basis
• Time goes by and you still can’t return to your normal job as a Hospital Orderly. Your doctor certifies that you are incapacitated for work and you pass those medical certificates along to your employer and to WorkCover. You’re having Medical Treatment and Rehabilitation
• Your brother offers to let you accompany him on his shifts as an Uber driver so you can get some work experience in order to maybe get your own Uber licence. You do some driving to see how your back will cope.  You don’t get paid.

Or your Mum takes you out on her courier run to help you get out of the house and “re-engage with the World”.  She does the driving but to get the run done quicker, you jump in and out of the car, drop off the deliveries and have the customers sign for them.  When your Mum falls ill, you cover for her for a few weeks, using your car and mobile phone.  Again, you don’t get paid.

Or you volunteer to help out in a food van for your Church group.  You do some cooking in the van at the Strand Markets and your Church group makes some money.  Again, you don’t get paid. 

(These are examples taken from actual cases before the Courts and from the WorkSafe website.)

In each case, you’re not getting paid and you’re not “working” are you?  You’re still not fit for your work as a Hospital Orderly but surely there’s no harm in helping out and who knows, it may even help you get another job, as an Uber driver, a Courier driver or as a Cook?  Who could complain about that? 

The problem is that you’ve forgotten those undertakings to keep WorkCover informed and WorkCover doesn’t know who are the “good guys” and who are the “fraudsters” secretly earning income that nobody knows about (or do they?).

That’s why workers with “an incapacity for work” (not just the work you were doing when injured, but any reduction of your power to earn wages from suitable employment), and who are in receipt of workers’ compensation benefits are required to inform WorkCover if they either:

• Return to work; or

• “engage in a calling”.

The term “engage in a calling” means any activity ordinarily giving rise to remuneration or reward, including self-employment, the performance of occupation, trade or profession or the carrying on of any business, whether or not remuneration is actually received.

The Workers’ Compensation Law makes it an offence to defraud an insurer.  A person is taken (or “deemed”) to have defrauded an insurer if they engage in a calling (as defined above) whilst in receipt of workers’ compensation benefits, without informing the insurer about “engaging in the calling” within 10 business days, unless there is a reasonable excuse for that failure.

The cases make it clear that it’s not an offence to return to work or to engage in a calling whilst in receipt of workers’ compensation benefits (you may be entitled to both, at least in part) - It’s the failure to disclose the return to work or the engagement in a calling to the insurer which is the offence.

WorkCover needs to know what you’re doing so that it can review and re-assess its liability under your workers’ compensation claim and either continue benefits, reduce or discontinue them, depending upon your new circumstances.

The fact that the activities involved would generally have value and be paid for on the general market is what is significant, rather than the fact that no payment is made. Further, it’s not necessary that you receive the payment of compensation to which you would not otherwise be entitled in order to establish the offence.

So what are the consequences of committing this offence?

Firstly, a person found to have defrauded WorkCover is liable to a maximum penalty of 500 penalty units (which equates to approximately $72,000) or 5 years imprisonment.

Secondly, if it is proven that you obtained payment of Compensation or Damages because of the offence, the Court can order that you repay the insurer all such sums. Again the offence is not the activity itself (for example, cooking in the food van) but failing to disclose the activity to WorkCover, and if doing so would have caused compensation payments to stop, you will  have to repay  those benefits

You will be liable for the legal costs of the prosecution – both the other side’s and your own. 

Perhaps most significantly, any entitlement that you may have to ongoing Compensation or to a Common Law Damages claim is extinguished (unless the amount wrongfully obtained is small - less than one week of your normal weekly earnings).

Unfortunately, we from time to time come across cases where genuinely injured workers affected by pain and the upheaval in their life caused by their injuries, forget the undertakings that they have provided and simply assume that if they’re not doing “paid work” then they’re doing nothing wrong, particularly if they are “setting themselves up” for the future when WorkCover payments cease. 

On occasions, injured workers find themselves disqualified from a claim for Common Law Damages (which may have been worth hundreds of thousands of dollars or more) simply because they have received a small amount of income or workers’ compensation benefits exceeding one week’s normal weekly earnings after they “return to a calling”.  In our experience, more often than not the oversight is innocent rather than intentionally fraudulent, but that is not the issue.

The sole issue is the failure to make a disclosure to the Insurer without reasonable excuse. 

In this day and age, WorkCover and other insurers frequently receive information as to your changed circumstances and your activities from sources such as anonymous reports, reports from co-workers and Employers, surveillance activity and internet searches etc. The easy availability of transportable “gig” based work makes it easier than ever to fall into the trap.

The key takeaway is that failing to keep your Workers’ Compensation Insurer informed of your activities, including voluntary and unpaid activities which have value and might ordinarily be paid for, could send you back into serious financial hardship, with a criminal conviction (a matter of public record), and extinguish an otherwise valuable Common Law Claim.  Always let your Workers’ Compensation Insurer and your lawyers know before you return to work or any other activity which would ordinarily be paid for. And if in doubt, tell them anyway and do it in writing. For example, if you decide to paint your house whilst receiving benefits, that may be seen as a “calling” and it might also be inconsistent with your Medical Certificates, so tell WorkCover and avoid the suspicion and risks

Don’t let a few dollars in income or compensation extinguish a perfectly good Common Law Claim and leave you without the Damages you deserve.

Contact myself and the Personal Injury Team today to answer any questions, or to discuss your possible claim, by calling (07) 4771 5664.

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