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Accident Compensation Cases

Gainfort v Accident Rehabilitation and Compensation Insurance Corporation (HC, 04/03/96)

Judgment Text

ORAL JUDGMENT OF TOMPKINS J 
Tompkins J
The appellant faced two charges of an offence under s 229A of the Crimes Act 1961, one charge of an offence under s 166(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 and one charge of an offence under s 166(2) of that Act. Following a defended hearing on 15 June 1995 he was convicted of all four charges. On 3 August 1995 he was sentenced to 12 months supervision and ordered to pay reparation of $11,547.48 at the rate of $30 per week in respect of the two charges under the Crimes Act and the charge under s 166(1). On the charge under s 166(2) he was convicted and discharged. He has appealed against conviction and against the order of reparation. 
The charges under s 229A of the Crimes Act 
These charges relate to the use of medical certificates obtained for the purposes of accident compensation. They charge that on or about 30 July 1992 and on or about 14 January 1993, he, with intent to defraud, used the medical certificates, being documents capable of being used to obtain a pecuniary advantage, for the purpose of obtaining for himself a pecuniary advantage. Each of these certificates were completed by Dr Blyth whom the appellant had consulted for the purpose of obtaining the certificates. Each of them certified that the appellant was “still unfit for any type of work”
Dr Blyth has since died. Evidence was given by a Mrs Harris, a practice nurse at the Parnell Medical Centre where Dr Blyth was, confirming that he was present at the relevant time and that he had signed the medical certificates produced including the two medical certificates to which the charges relate. She said she had worked for Dr Blyth for eight years and had never known him to issue a medical certificate for a patient stating that the patient was unfit for any type of work if in fact the doctor was aware that the patient was working. 
The essence of the case for the corporation therefore was that the appellant had obtained these certificates representing to Dr Blyth that he was not working and he used these certificates to obtain accident compensation. 
There was evidence produced before the court that at the time of each of these certificates, the appellant was working part time for Cactus Jack, a bar in Finance Plaza. The Judge heard evidence from Mr McMillan, a director of Cactus Jack, confirming that the appellant had been employed during 1991, 1992 and 1993 as a barman on a part time basis. Wages sheets were produced to confirm this employment. This evidence was to some extent contested by the appellant who contended that his employment at Cactus Jack was a great deal less than the employment records suggested. 
This involves a factual issue that the Judge resolved in favour of the witnesses called by the corporation. She expressly accepted the evidence of Mr McMillan. She formed an unfavourable view of the evidence of the appellant and some witnesses he called. She considered him to have been less than frank and became significantly evasive when asked about the extent to which he had been employed by Cactus Jack after the incident in respect of which the compensation was being paid. 
The appellant was well aware of his obligation to inform the corporation of earnings he received. There were produced to the court two letters from the corporation, one dated 21 May 1992 and the second 24 August 1992. These letters recorded assessments of compensation that had been made. Each included the following paragraphs: 
“You must provide medical certificates for the times you are off work and receiving compensation. This includes times when you can do only light or part time work. 
Please advise this office immediately if you receive any other earnings during your incapacity. Failure to do so may well result in prosecution. ”
It was claimed by the appellant at the hearing in the District Court and by Mrs Woodroffe in this court that the meaning of that paragraph was unclear. I cannot accept that submission. The words “Please advise this office immediately if you receive any other earnings during your incapacity” could not be clearer to anybody who can read English. The appellant therefore was well aware of his obligation to report any earnings from part time work. 
Due to Dr Blyth's death there is no direct evidence of what the appellant told Dr Blyth. But in view of the certificate that was issued and the evidence from Mrs Harris concerning Dr Blyth's attitude towards completing medical certificates, the Judge was entitled to infer that the appellant had not told Dr Blyth that he had been doing part time work. 
But whether or not that is so, I consider that the issue is a simple one. The appellant obtained from Dr Blyth a certificate stating that he was still unfit for “any type of work”. The appellant knew that that was not so because he had been undertaking work at the bar. He knew he was fit for that type of work. He chose to supply the certificates to the corporation to enable him to continue to receive earnings related compensation without any deduction for any earnings from part time work. 
The Judge correctly identified the matters that the corporation was required to prove, namely, that the document was used, that the document was capable of being used to obtain pecuniary advantage, and that the appellant's purpose was to obtain a pecuniary advance with intent to defraud. 
In my view there was ample evidence to support the findings that she made that these requirements had been fulfilled. In my view he was properly convicted on these two charges. 
The charge under s 166(1) of the Act 
That charge was that he wilfully omitted to advise the corporation that he was working for the purpose of misleading an officer of the corporation and for the purpose of continuing to receive earnings related compensation. The Judge found that the appellant admitted that he had worked at Cactus Jack and he did not dispute receiving the two letters to which I have referred advising the appellant of his obligations and warning him that a failure to do so may result in prosecution. 
A finding that the elements of this offence have been proved is a proper finding for much the same reasons as was the finding of the offences under the Crimes Act. His clear obligation which had been brought to his attention in unmistakable terms was to tell the officer at the corporation that he was receiving some earnings from Cactus Jack. His failure to do so amounted to a breach of s 166(1) which provides that any person who does anything for the purpose of misleading any person concerned in the administration of the Act, commits an offence. The purpose of this provision is clear. The proper administration of accident compensation under the Act is very dependent upon claimants being honest with the corporation. There is, therefore, an obligation on claimants to inform the corporation of all events that may be relevant to their right to compensation particularly details of earnings where a person is in receipt of earnings related compensation. 
There was, in my view, ample evidence to support the conclusion of the Judge that that obligation had been wilfully breached by the appellant. That appeal against conviction is also dismissed. 
The reparation order 
In imposing sentence the Judge records that the amount of compensation over paid as the result of the appellant failing to declare the earnings he had received was agreed between the appellant and the corporation at $11,547.48. Although the Judge stated this at the time of the sentence when the appellant and his counsel were present and the statement was not challenged, I am informed by Mrs Woodroffe that the appellant now contests that this is the amount of the overstatement. The Judge went on to say that the appellant had agreed to make reparation of that sum at the rate of $30 per week. 
I am informed by counsel that it is correct that the appellant agreed to make reparation but the appellant considers that the amount had not been fixed. I find it difficult to accept that as the Judge must have had good reason for recording the agreement between the appellant and the corporation fixing the reparation at $11,547.48. She also made it clear that the sentence of 12 months supervision with no other penalty was because of the assurances she had received that that amount of reparation was going to be repaid. Clearly if she had not received that assurance at that time she would have imposed a sentence probably of imprisonment or at least of periodic detention. 
I am therefore not prepared to allow any appeal against that reparation order simply because the appellant now wishes to renege on the agreement that he conveyed to the Judge at the time of sentence. As I pointed out, if the reparation order were to be cancelled or substantially modified, the court would need to consider as an alternative a significant penalty for these offences which can only be described as serious. 
The appeal against the sentence of reparation is, therefore, also dismissed. 

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