Can you spot a workers’ comp cheat?

We are often contacted by our clients when they have doubts over the legitimacy of an employee’s claim for workers’ compensation. In many cases, employers suspect that:

• the employee is not suffering an ‘injury’ (particularly in the context of stress related claims);
• the employee’s injuries did not occur at work (for example, where it is a pre-existing injury or an injury that may have occurred while undertaking sporting or other activities); or
• the employee is exaggerating their injury.

It can be difficult for employers to challenge the legitimacy of an employee’s workers’ compensation claim. However, it can be achieved through proactive monitoring of employee behaviour and the submission of a comprehensive response to the workers’ compensation regulator before the claim is determined. Failure to take these steps is likely to result in an accepted workers’ compensation claim and increased premiums for the employer.

Triggers for further enquiry

The following circumstances may indicate a fraudulent workers’ compensation claim and warrant further enquiry:

• reporting an injury late;
• suffering an injury immediately before retirement;
• suffering an injury during reasonable performance management;
• having more than one active claim;
• having previously rejected claims;
• suffering an injury that relates to a pre-existing condition;
• developing new secondary conditions;
• changing treating medical practitioners; and/or
• suffering severe injuries from a minor incident.

Other suspicious behaviour while receiving workers’ compensation includes:

• avoiding phone calls or not answering phone calls from the employer during the day without explanation;
• providing false information or becoming aggressive when discussing a claim’s issue; and/or
• discussing activities on social media that are inconsistent with the purported level of incapacity.

Employers should proceed very carefully when acting on suspicions as they may be unfounded and in some cases unlawful. We strongly recommend employers obtain legal advice before acting on these suspicions.

Responding to a claim

Where an employer believes that a claim for workers’ compensation should not be accepted, it is essential that they take the opportunity to submit a comprehensive response at the time the claim is being initially assessed and before it is determined. A comprehensive response requires a detailed factual and legal analysis having regard to the particular circumstances and the workers’ compensation legislation.

We have been successful in resisting many employee claims for workers’ compensation on behalf of our clients, particularly in the context of allegations of stress related injuries caused by work. This has not only assisted our clients to keep their premiums to a minimum but has also sent a powerful message to their employees that fraudulent or misconceived workers’ compensation claims will not be tolerated.

A final warning!

Employees who make fraudulent workers’ compensation claims are often caught out and slapped with heavy penalties. Recently, a scaffolder in Victoria was given a nine month suspended prison sentence after pleading guilty to illegally obtaining more than $56,000 in workers’ compensation benefits.