Home » Knowledge Base » Personal Injury Law » Workplace Accidents » Deceptive Legal Tactics in Workers’ Compensation Claims

Deceptive Legal Tactics in Workers’ Compensation Claims

Workers’ compensation claims are meant to provide support and protection for employees who suffer workplace injuries. However, what happens when employers, their insurers, or their legal representatives employ deceptive tactics to hinder the process? The case of Francis v MSF Sugar Limited sheds light on the concerning issue of deception by defendants and the role of insurance companies and their lawyers in such cases.

A case study of Francis v MSF Sugar Limited

In November 2019, the Queensland Supreme Court heard an interlocutory application in the case of Francis v MSF Sugar Limited. This case involved a worker, the plaintiff, who suffered an injury at work and sought damages via a common law claim. What sets this case apart is the revelation of a pattern of deception, not only by the employer but also by the insurer’s legal representatives.

Note: An “interlocutory application” is a formal request to the court for orders that assist in managing a case during the legal process (before the trial).

The interlocutory application was brought by the defendant, seeking to adjourn the trial which was scheduled for the same day. The adjournment was sought due to the late disclosure of a document from the employer’s records that impacted the truthfulness of the pleaded defence (and which in fact supported the plaintiff’s version of events).

Section 279 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) requires both parties to cooperate and exchange documents relevant to the circumstances of the event resulting in the injury within 21 business days after the claimant gives their notice of claim.

Accordingly, this particular document should have been disclosed by the employer much earlier. The document contained vital information that contradicted substantial parts of the pleaded defence, which contained numerous false and unnecessary allegations in relation to the injured worker and the claim.

There was no indication that the employer’s insurer (Workcover Queensland) took prompt action to correct the situation or ensure that its defence was based on accurate and provable facts, despite information being available and in their possession.

The late disclosure also indicated to the plaintiff the likely existence of other relevant documents that had not been disclosed.

The court expressed its disappointment with the defence, which appeared to have been formulated by Workcover’s appointed lawyers without proper inquiry or taking a statement of evidence from a witness who could support the facts alleged in the defence. The defence had no barrister’s name attached, raising further questions about the legal representation, tactics, and oversight provided by Workcover’s lawyers. The judge ordered the defendant to amend their defence before the trial, stating that “the defendant cannot proceed on the basis of its present defence, because much of it appears simply false and agitates matters that no properly considered defence would include“.

The judge concluded that Workcover “conducted itself in this court quite unreasonably – failing to disclose directly relevant documents until the eve of the trial and pleading matters that were false, according to its own records, and which it could not prove by admissible evidence. This unreasonable conduct has caused the plaintiff to incur unnecessary costs … It also likely delayed the determination of the plaintiff’s claim and prevented the matter resolving on an agreed basis without the need for a trial”.

Accordingly, the court dismissed the defendant’s application for adjournment and ordered that they participate in the trial later that day and pay the plaintiff’s costs for the adjournment application on the indemnity basis.

The parties appeared to then resolve the matter informally by way of settlement rather than completing the 4-day trial as originally intended.

Implications of the Case

The Francis v MSF Sugar Limited case highlights several significant issues:

1. What If? How would the trial have run if that key document had never been disclosed and the defence was not exposed for being false? An employer/insurer’s breach of their disclosure obligations could cause an injured victim to unfairly lose their legitimate claim.

2. Prevalence: How many situations are there where unscrupulous employers deliberately withhold key evidence the entire way through the claim without it ever being exposed? How many trials have been unfairly decided in the employer/insurer’s favour because a critical document was withheld entirely and never disclosed as required? How many times do defendant lawyers plead false defences without bothering to verify the facts or ensure the employer/insurer have complied with their disclosure obligations?

3. Indifferent Insurers: Where insurers display indifference by not making proper inquiries, and allowing false or misleading defences to be prepared by their lawyers, the stark reality is that pursuing a personal injury claim becomes an uphill battle for the victim, often resulting in a distorted and more expensive legal process. Such indifference undermines justice and jeopardises the right to compensation for the injured party.

4. Defence Lawyer Tactics: Are lawyers for the insurers/employer’s properly advising their clients about their disclosure obligations? Do defence lawyers simply take matters into their own hands to plead whatever defence they think may help defeat the claim, despite proper consideration towards the facts? In this case, the court noting that the defendant lawyer drafted defence was lengthy, in part false, contained grounds of defence that were unnecessary, and being “a very disappointing exemplar of the failure of a party to comply with the implied undertaking under r 5 of the Uniform Civil Procedure Rules 1999 (Qld)” (i.e. to proceed in an expeditious way). As a minimum, the consequence of such defendant law firm behaviour causes delay and increases both parties’ costs unnecessarily. At worst, the unscrupulous behaviour could cause a plaintiff to be unfairly shut out from their rightful compensation.

5. Impact on Injured Workers: Deceptive practices can have serious consequences for injured workers. Delays in proceedings can lead to increased financial burdens, prolonged suffering of the victim, and cause an additional unnecessary level of emotional distress. Of course, this may be the very goal of the defendant insurer to get out of the claim or pay less than they should – a common strategy, but which should never be conducted recklessly or unethically.

6. Judicial Response: The court’s response to the defendant’s conduct underscores the importance of transparency, accuracy, compliance, and professionalism in legal proceedings. The court held the defendant accountable for its actions, insisting on amended pleadings, dismissing their adjournment application, and ordering them to pay the injured party’s legal costs for the ordeal.

Combating Deception in Workers’ Compensation Claims

Francis v MSF Sugar Limited serves as a stark reminder that deception in workers’ compensation claims exists and can have serious consequences on both sides.

It’s crucial for injured workers and their legal representatives to be vigilant. If you’ve suffered a workplace injury and have doubts as to whether your employer will treat your injury or the claim with integrity, there are some things you can do:

  • Document Everything: From the beginning, keep detailed records of your injury, medical treatment, communication with your employer, any witnesses, and the insurer. A thoughtful and detailed written report of the incident at the outset can be invaluable.
  • Preserve Evidence: preserve any physical evidence related to the incident, such as security footage, equipment, clothing, any objects involved, or even text messages about the event. If possible, take a photo or video recording. This can strengthen the case by providing tangible proof of your version of events.
  • Be Transparent: Be transparent and honest in all aspects of your case. Doing so may encourage like behaviour from your employer and their representatives.
  • Get Advice: Seek legal advice promptly. Experienced solicitors can help obtain and protect evidence early, as well as identify and address deceptive practices by employers, insurers, or their lawyers.

If you’re dealing with a difficult employer following a workplace injury, or are unsatisfied with tactics employed by Workcover Queensland or their legal representatives, contact Roche Legal to assist you in holding them to account.

This commentary is published by Roche Legal for general information purposes only and should not be relied on as specific advice. The content relates to Queensland law only and is subject to change over time. You should seek legal advice for any question, or for any specific situation or proposal, before making any decision.