WorkCover SA
Investigation Unit:
Workers Compensation and Rehabilitation Act, 1986
Section 110 Guidelines
May 2006
Author: Investigation Unit
Section 110 Guidelines
Contents
Aim 3
Background 3
Section 110 - Purpose 3
Powers under Section 110 4
Section 110 - Powers of entry and inspection 4
Scope of Section 110 - Legal Precedent 6
Territorial Application of section 110 7
Authorised Persons under Section 110 7
When to Apply For Issue of a Section 110 8
How to apply - the application for Section 110 Authority 9
Section 110 Application Checklist 10
Nomination of Authorised Officer 10
Application for Medical Notes Under Section 110 10
Approval of a Section 110 13
Instructions from the Investigation Unit 13
Use of Section 110 at Interview 14
Books, Documents or Records 14
Seizure of Evidence 14
Obtaining Medical Notes 15
Interviews - Medical Practitioners 15
Medical Insurance Group Australia (MIGA) 16
Fees for Obtaining Medical Notes and Interviewing Medical Providers 16
Potential Breach of Section 110 18
Request/Exchange of information - WorkCover, Claims Agent and Self Insurer 19
Section 110 and the Privacy Act 19
Aim
This document will:
· Provide guidelines for the application, assessment and implementation of section 110.
· Maintain confidence in the administration of section 110 by WorkCover.
Background
Section 110 in its current form was assented to by the House of Assembly on 21 March 1991. It was apparent that Parliament intended that Authorised Officers under the Workers Rehabilitation and Compensation Act 1986 (the Act) have a general power to carry out investigatory functions for the purposes of the Act.
It was acknowledged that section 110 contained wide and far reaching powers and that its use needed to be protected and justified. Any misuse of section 110 or frivolous use would lead to criticism of WorkCover and potentially jeopardise WorkCover’s use of section 110.
In 2006, section 110 is in its 15th year of operation. It would have been expected, given the extent of the powers granted by section 110, that an abundance of case law would have been established but only three matters have been challenged in the courts. This scarcity of case law is a reflection of the cautious and reasonable approach adopted by WorkCover's Investigation Unit in its application of section 110.
However, it must be remembered that the use of section 110 is regularly monitored and subject to scrutiny by WorkCover stakeholders and interest groups. In 2005 it was subject to review by the Parliamentary Select Committee for Occupational Health, Safety and Welfare and the Workers Compensation Advisory Committee.
Section 110 - Purpose
· Assists WorkCover to ensure compliance with the Act and to carry out the duties imposed upon it by the Act (the natural meaning of section 110 is that the powers are available to assist WorkCover in the discharge of its statutory powers and functions, which is in the public interest)
· Where a person has a legal obligation not to disclose information (such as a medical provider), section 110 provides the legal authority for that person to make disclosure and is therefore protected in respect of that disclosure
· Where a person has no obligation to disclose information (such as a witness) section 110 can compel that person to disclose relevant information.
Section 110 is utilised for the following reasons:
· Investigating offences under the Act
· Fraud investigations involving employers, workers and providers
· In claim determination and in case management strategy
· Recovery investigations
· Forensic accountants investigating working directors
and it
· Provides the power to seize evidence
· Creates an offence for persons who wish to hinder an investigation
Powers under Section 110
The Supreme Court decisions of WorkCover v BHP, Jagermann v Workcover and Maroulis v Duffin have made it abundantly clear that in order to use the powers under section 110 it is necessary to have a specific power or duty in mind arising from a particular section of the Act. In other words:
· the powers contained in section 110 are only to be exercised for the purpose of the Act – not any other act such as the WorkCover Corporation Act
· the investigation must relate to a specific matter arising under the Act
Therefore, in utilising powers under section 110, the specific provision in the Act to which the investigation relates must be clearly identified eg sections 32, 53, 54, 120, etc.
Section 110 - Powers of entry and inspection
History: Section 110 is repealed and inserted by 4/1991, s44. Operative 8/4/91.
(1) For the purposes of this Act, an authorised officer may, at any reasonable time -
(a) enter any workplace;
(b) inspect the workplace, anything at the workplace and work there in progress;
(c) require a person who has custody or control of books, documents or records relevant to any matter arising under this Act to produce those books, documents or records;
(d) examine, copy and take extracts from any such books, documents or records, or require an employer to provide a copy of any such books, documents or records;
(e) take photographs, films or video or audio recordings;
(f) take measurements, make notes and records and carry out tests;
(g) require (directly or through an interpreter) any person to answer, to the best of that person's knowledge, information and belief, any question relevant to any matter arising under this Act;
(h) require an employer to produce any document, or a copy of any document, that is required to be prepared or kept under this Act.
(2) Where-
(a) a person whose native language is not English is suspected of having breached this Act; and
(b) the person is interviewed by an authorised officer in relation to that suspected breach; and
(c) the person is not reasonably fluent in English,
the person is entitled to be assisted by an interpreter during the interview.
(3) A person is not required -
(a) to provide information under this section that is privileged on the ground of legal professional privilege; or
(b) to answer a question under this section if the answer would tend to incriminate that person of an offence.
(4) An authorised officer, who suspects on reasonable grounds that an offence against this Act has been committed, may seize and retain anything that affords evidence of that offence.
(5) An authorised officer must, at the request of any person from whose possession evidentiary material is seized under subsection (4), provide a receipt for that material.
(6) Where anything has been seized under subsection (4) the following provisions apply;
(a) the thing seized must be held pending proceedings for an offence against this Act related to the thing seized, unless the Minister, on application, authorises its release to the person from whom it was seized, or any person who had legal title to it at the time of its seizure, subject to such conditions as the Minister thinks fit (including conditions as to the giving of security for satisfaction of an order under paragraph (b)(ii));
(b) where proceedings for an offence against this Act relating to the thing seized are instituted within six months of its seizure and the person charged is found guilty of the offence, the court may -
(i) order that it be forfeited to the Crown; or
(ii) where it has been released pursuant to paragraph (a) - order that it be forfeited to the Crown or that the person to whom it was released pay to the Minister an amount equal to its market value at the time of its seizure, as the court thinks fit;
(c) where -
(i) proceedings are not instituted for an offence against this Act relating to the thing seized within six months after its seizure; or
(ii) proceedings have been so instituted -
(A) the person charged is found not guilty of the offence; or
(B) the person charged is found guilty of the offence but no order for forfeiture is made under paragraph (b),
the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Minister, by action in a court of competent jurisdiction, the thing itself, or if it has deteriorated or been destroyed, compensation of an amount equal to its market value at the time of its seizure.
(7) In the exercise of powers under this section, an authorised officer may be accompanied by such assistants as may be necessary or desirable in the circumstances.
(8) An employer whose workplace is subject to an inspection under this section must provide such assistance as may be necessary to facilitate to the exercise of the powers conferred by this section.
(9) A person must not -
(a) hinder or obstruct an authorised officer in the exercise of a power conferred by this section; or
(b) refuse or fail, without lawful excuse, to comply with a requirement under this section.
Penalty: $10,000
(10) An authorised officer, or a person assisting an authorised officer, who in the course of exercising powers under this section in relation to an employer -
(a) unreasonably hinders or obstructs the employer in the day to day running of his or her business;
(b) addresses offensive language to the employer or to any other person at the workplace;
(c) assaults the employer or any other person at the workplace,
(d) is guilty of an offence.
Penalty: (a) for an offence against paragraph (a) or (b) - $6,000;
(b) for an offence against paragraph (c) - $6,000 or imprisonment for one year.
Scope of Section 110 - Legal Precedent
The courts have interpreted the provisions of section 110 to the effect that:
· Parliament intended to interfere with common law rights.
· Parliament has plainly authorised entry into ‘any workplace’ as long as the entry is for the purposes of the Act and is not restricted to the place of work to which a claim relates.
· Section 110 is wider than just having application to a workplace or an employer’s premises.
· The powers in section 110(1) (c) through to (h) are not expressed as being applicable only to a workplace. This means that these powers can be exercised at any place.
· Section 110 can be utilised for the purpose of asking questions as to the possible commission of offences under section 120(1).
· Section 110 can be used to require a medical provider to produce medical records and to answer questions about the records of the worker.
· Assistants engaged when conducting an investigation can include experts such as doctors, engineers, accountants etc. provided the expert accompanies the Authorised Officer in the execution of a power conferred under section 110 for the purposes of the Act
· Section 110 can be utilised to investigate whether there is a potential for recovery under section 54.
Territorial Application of section 110
The application of section 110 is strictly limited to within the State of South Australia.
Authorised Persons under Section 110
Section 110 empowers an authorised officer to do various things as set out in that section.
Section 3 defines an ‘authorised officer’ as “a person who is authorised by the Corporation to exercise the powers of an authorised officer under this Act”. Hence, the power to authorise persons to exercise the powers of an Authorised Officer is vested in WorkCover.
Section 17 of the WorkCover Corporation Act authorises the WorkCover Board to delegate its functions or powers .
The delegation to appoint an ‘Authorised Officer’ currently rests with the General Manager, Scheme Regulation and Compliance and the Manager, Investigations who have the responsibility to ensure the appropriate exercise of powers under section 110 and the discretion to determine who should be authorised.
Any appropriately qualified person may be appointed an Authorised Officer and this includes members of WorkCover’s Investigation Unit, WorkCover Levy Auditors, approved investigative operators and suitably qualified investigators engaged by self insured employers.
WorkCover employs a rigorous authorisation procedure and provides training on the use of section 110. Before an external investigation provider is approved as an authorised officer pursuant to section 110, the WorkCover Investigation Unit must be satisfied that the applicant can demonstrate the following skills and attributes:
· Must be appropriately licensed under the Security and Investigation Agents Act 1995 or have appropriate qualifications and skill to conduct the necessary investigation
· Have sufficient experience in the field of investigation
· Have the requisite skills and experience required to exercise the powers of section 110
· Have demonstrated knowledge of section 110, its applications and have successfully completed WorkCover's Investigation Unit assessment
· Be prepared to undergo a thorough security and background check in accordance with WorkCover’s Fraud Control Policy.
When to Apply For Issue of a Section 110
Claims Agents and Self Insured Employers
The WorkCover Agent and Self Insured Employers have the delegated authority to manage claims. It is their statutory right to make their own enquiries, such as by telephone or letter but claims management, particularly involving determination of a claim, often requires further investigation.
Section 53 (1) allows investigations to take place in claims determination. The case manager may choose to use the services of an approved investigator where a more comprehensive investigation is necessary, such as one requiring interviews.
On occasions these investigations may not provide the essential information for claims determination and management. An example might be when a medical authority has been revoked by the worker and the doctor has a legal obligation under doctor/patient confidentiality not to disclose the information required to a case manager. In such matters it may be appropriate for the case manager to apply to have an Authorised Officer utilise the powers of section 110 and require the doctor to legally disclose the required information.