Key steps in conducting a liability investigation of a workers’ compensation claim arising from an alleged criminal event

22 September, 2020

Over the years we have conducted thousands of factual investigations on pending workers’ compensation matters. On occasions, the personal injury claim, whether mental or physical, arises from an alleged criminal event such as sexual assault, rape, physical assault, fraud, theft and other events which may result in the matter being reported or potentially reported to the police.

The basis of a liability decision by WorkSafe and its agents does not alter as result of the alleged criminal event. In other words, in determining liability WorkSafe need to establish:

  • Is the Claimant a Worker, as defined by the legislation
  • Did the Worker incur an injury?
  • Did that injury arise out of or in the course of the Worker’s employment?

The main difference here is the need to take into account the possible impact that the liability investigation may have on a concurrent or future police investigation.

 

The 7 key investigation process steps are as follows:

1. Upon receipt of the liability investigation instructions, initially determine whether there is a possible criminal matter or a report to the police. Ask your instructor whether the police are involved and obtain the police report or their relevant contact details if they do not have a copy.

2. Determine whether your instructor has considered the possibility of a criminal matter and whether their internal legal department are aware of the investigation. Don’t assume your instructing Eligibility Officer has had prior experience in this area.

It’s important you consider where the extent of the victim’s allegations has not been disclosed to the perpetrator. The appropriate line of inquiry needs to be established, as does the dialogue, determined by the limitation of the investigation.

3. Once you have established the connection to a police report or the possibility that the circumstances of the claim is connected to a criminally reportable matter, there is a greater onus to ensure that the witnesses, and in particular the perpetrator, are aware of their rights to seek legal advice before proceeding with an interview. Specifically, the relevant witnesses, including the Worker and the Employer Representative, will need to be cautioned before engaging in any dialogue about subject of the claim, to ensure that they do not inadvertently incriminate themselves. In addition to the normal cautions, the statement should include the following:

  • That the witness is not obliged to say or do anything
  • Anything the witness says or does will be documented as part of the liability investigation and may be used as evidence at a later stage
  • That the witness has the right to communicate or attempt to communicate with a friend or relative prior to participating in the investigation, including the right to have a support person present should the witness agree to be interviewed
  • That the witness has the right to communicate with or an attempt to communicate with a legal practitioner
  • That any information obtained from the witness during the course of the liability investigation, will be used or disclosed by WorkSafe to the extent necessary to perform its role under the Workplace Injury Rehabilitation and Compensation Act 2013, Occupational Health and Safety Act 2004 or any other Act.

4. The claim form may be the first time the Employer is aware of the criminal event taking place. It is critical that any discussion of the claim for the purpose of the liability investigation does not breach any possible privacy and confidentiality rights of the accused person.

5. The involvement and approval of the instructing client in determining the nature and scope of the investigation is a key success factor.

6. You must seek approval from the police or ask your instructor to do so before proceeding with a workers’ compensation investigation to ensure you do not obstruct an active or future police investigation on the same matter. The police may decide to conduct the investigation at a later stage, and they may not wish the accused person to know about the allegations.

7. If during the interview process you discover for the first time that there is police involvement, do not proceed with the workers’ compensation investigation unless you have referred it back to your instructor. This may include contacting the police before proceeding with the liability investigation.

In summary, in highly sensitive claim circumstances, the prospect of criminality of the matter is considered separate and distinct. That process takes precedence and cannot be jeopardized by seemingly naivety of a “claim investigation”. To quote one of the senior executives from our claim agents:

“The prospect of one party of the claim or the other lodging ‘complaint’ as a result of a ‘disclosure’ of material information between perpetrator/culprit and victim is real, and has the potential to compromise the integrity of the investigator (Brand), Agent (Brand) and Scheme (Governance of Govt Regulator). The sensitivity surrounding a sense of potential criminality in claimed circumstances cannot be understated.”

 

Vincent Quattropani
Managing Director
Clarity Workplace Solutions