Former cop challenges State Government over workers compo claims

Julie Heise, who was injured in a work-related car accident in 2009, made a claim for lump sum compensation for permanent impairment in April, 2017.

The State Government sent the case to Employers Mutual Limited, which manages its personal injury claims.

After an EML-arranged medical examination in September 2017, Ms Heise heard had heard nothing by mid-July the following year.

She then took her case to the Workers Compensation Commission.

According to the Workplace Injury Management and Workers Compensation Act, claims must be resolved within two months, making failure to comply a criminal offence.

That legislation was introduced to ensure, according to then Industrial Relations Minister John Della Bosca whose second reading speech for the legislation formed part of Ms Heise's evidence, that insurers determine claims in a timely manner.

"The bill proposes to establish firm time frames for the determination of lump sum compensation," Mr Della Bosca said.

On November 14, 2018, her 'whole person impairment' was assessed as being 19 per cent, resulting in a lump sum payment of $43,600.

During that time, on September 26, 2018, Ms Heise also launched a private prosecution against EML in the Newcastle Local Court for failing to resolve her claim in the legislated time frame.

EML filed a summons in the Supreme Court challenging the court attendance notice, but it was dismissed. That was followed by other challenges to the Supreme Court which were also dismissed.

The matter came before Magistrate Janine Lacy in April, 2021 who convicted EML on June 16, 2021, issuing a $2,500 fine. However, EML appealed the conviction in the Supreme Court, and won, saying EML could not be held liable.

Ms Heise then challenged that decision in the Supreme Court of Criminal Appeal.

In her evidence, Ms Heise said there was no dispute that her claim was appropriately directed to EML, given the arrangements the state had made.

She queried how EML could have been exercising decision-making power on behalf of the state, and yet it was not being made responsible in the way she claimed that they were.

Her argument was that because the State could not or would not prosecute itself for failure to comply with the requisite time limits, those managing claims on its behalf should be liable, otherwise the legislation would be undermined.

However, in a judgement handed down in December, a panel of three judges agreed with the Supreme Court that EML could not be prosecuted.

Ms Heise's argument would mean government employees or corporations effectively sub-contracted to it would be directly criminally liable for claims, the judgement said.

"No doubt imposing potential criminal liability was meant to concentrate minds on complying with the statutory time limits.

"That purpose is achieved by subjecting the employers and insurers themselves to the obligations."

However, the parts of the legislation which set the time limits, and which bound the state government, did not "impose criminal penalties".

Those limits were potentially enforceable via an injunction in the Supreme Court, or could be referred to the Workers Compensation Commission, "which is exactly what happened here" the judgement said, where the state government, and not EML, was named as the respondent.

"That appropriately reflected that the State (as employer and self-insurer) was the person on whom the claim had been made, and that EML was merely acting on its behalf."

The judges agreed with the original Supreme Court decision, that the prosecution should have been dismissed at local court level.

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