On 31 August 2020, Mr McLean pleaded guilty in the Brisbane Magistrates Court to 10 charges of dishonesty in relation to a claim for compensation made under the Workers' Compensation and Rehabilitation Act 2003. On 19 November 2020, Mr McLean received a prison sentence for the offences. He appealed the decision in the District Court.
The fraudulent claim
On 16 August 2017, Mr McLean, a real estate agent, was attacked by dogs while visiting a property to have a contract signed. He suffered physical injuries to his right arm and he also alleged sustaining a secondary psychiatric injury. At the time of the incident, Mr McLean said he worked for Harcourts Calamvale. He had previously been the director of the agency but said his son had taken over the role before the incident.
When Mr McLean lodged his statutory claim, WorkCover requested that he provide his pay slips so they could determine whether he met the definition of 'worker'. Mr McLean sent WorkCover 12 pay slips for the period 22 May to 13 August 2017, which showed wages being deposited into a Westpac bank account. Investigations revealed that the payments set out in the pay slips were not credited to that bank account. Mr McLean involved his son in this offending by having his son furnish him with the fraudulent pay slips.
When Mr McLean applied for compensation, he advised WorkCover he was unable to work because of the injuries he sustained. He was required to notify WorkCover within 10 days of returning to work or engaging in a calling. On 12 October 2017, Mr McLean signed a contract for the sale of a property in Logan while working in his capacity as a real estate agent. He therefore needed to notify WorkCover of his return to work by 22 October 2017. The first time WorkCover became aware of Mr McLean's return to work was when a suitable duties plan was implemented by WorkCover's occupational therapist on 23 July 2018. Surveillance footage showed Mr McLean continuing to work between 12 October 2017 and when he commenced the suitable duties program the following July.
In addition to the conviction for defrauding WorkCover, Mr McLean was also convicted of knowingly making false or misleading statements. On seven separate occasions between 7 June and 6 September 2018, Mr McLean reported to WorkCover's representatives and health care providers as to the nature and impact of his ongoing injuries. That these reports were false and misleading came to light following the surveillance period. Mr McLean advised WorkCover that he could not legally drive and there was no steering wheel that was light enough for him. Mr McLean reported to WorkCover that he could drive to the corner shop, which was only two minutes away, but it was not safe for him to drive any further distance, for example to the Gold Coast. Surveillance footage demonstrated this information to be false.
When Mr McLean was examined for permanent impairment, he told the examiner that, while he had returned to some light duties, he was unable to go to property sites and perform open houses. Surveillance evidence demonstrated otherwise. The examiner assessed Mr McLean with a 27% impairment and he was offered lump sum compensation totaling $89,164.80, which he accepted.
There were a number of other false and misleading statements that Mr McLean made to WorkCover.
During the course of Mr McLean's statutory claim he received $265,774.21 by way of WorkCover payments. This included $123,000 in weekly benefits.
Facing overwhelming evidence, Mr McLean pleaded guilty in the Magistrates' Court, and was sentenced as follows:
- Defrauding or attempting to defraud WorkCover – two years' imprisonment suspended after six months for an operational period of three years.
- Giving WorkCover a document containing information that is false or misleading in a material particular – nine months' imprisonment suspended after three months.
- Knowingly making to WorkCover a false or misleading statement in a material particular (seven charges) – for each charge, nine months' imprisonment suspended after three months.
- Failing to notify WorkCover of a return to work or an engagement in a calling – convicted but no further punishment.
The Magistrate also ordered Mr McLean to repay WorkCover $261,524.21. (Mr McLean had, in fact, already begun to repay WorkCover some of the benefits that had been paid.)
Mr McLean lodged an appeal to the District Court and argued there was an error of law made by the Magistrate in terms of the restitution ordered and that the head sentence, that Mr McLean serve six months of actual imprisonment, was excessive.
In dismissing the appeal, Rosengren DCJ stated:
There are aggravating features of Mr McLean's offending. These are the amount of the fraud (even accepting that Mr McLean may well have been entitled to some compensation) and the lengthy period of time over which it occurred. Further, in addition to providing false pay slips and failing to inform WorkCover that he had returned to work as a real estate agent, on seven separate occasions he deliberately misled or lied to WorkCover representatives or its health providers as to the nature and extent of his injuries. He engaged in this course of offending as a mature man and involved his son in providing him with the fraudulent pay slips. Mr McLean's offending is serious even when considered against the background of a legitimate injury with continuing symptoms. WorkCover did not invite him to steal from it and it was entitled to expect that he would behave as an honest injured worker. It is not as though some flaw in WorkCover's administrative arrangements led to Mr McLean having accidentally conducted himself dishonestly. He deliberately set out to become the beneficiary of payments which he knew he was not entitled to. He pursued this course over a lengthy period and avoided detection by strategies of concealment ... the community expectation is that WorkCover related fraud will be met with condign punishment.
The take home message from this decision is that, even though a worker can be genuinely injured during the course of their employment, that worker is still required to act honestly in terms of the extent of the injuries they have suffered. In this case, Mr McLean's offences were of the most serious kind in that they took place over a considerable period of time and there was a significant amount of compensation involved.
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