Franck v RTWSA and Wrightville Services Pty Ltd [2021] SAET 162

This matter concerned an appeal of a single Judge’s decision to overturn the acceptance of a worker’s claim.

Mr Franck had been employed as a parts delivery driver by Jarvis Toyota (Wrightville Services). His claim had been made on the basis that he had sustained physical injuries whilst undertaking his work duties. Specifically, he asserted that, on 15 October 2018, while loading a bull bar, he had injured his right arm. Mr Franck gave evidence that he reported the incident to his manager, but did not think the injury was serious and completed his duties for the day.

Over the following three weeks, Mr Franck claimed his right wrist pain became worse but that he persevered through the pain and kept working. However, he eventually attended a doctor who diagnosed him with a fractured wrist. Mr Franck subsequently made a workers compensation claim, which was accepted by the agent for the insurer, Employers Mutual Limited.

At first instance, other employees gave evidence that Mr Franck had said to them that he had injured his wrist on a weekend, and prior to 15 October 2018. On considering the evidence, the Tribunal determined that Mr Franck had been dishonest about sustaining his injury at work and that he had actually sustained his injury on a weekend (while not at work) prior to 15 October 2018.

Further, the Tribunal also made an order that Mr Franck pay the legal costs of the other parties as he had fabricated the circumstances of his injury.

There were several grounds of appeal, the most significant of which were that, first, the trial judge had erred by not taking into account pertinent evidence and, secondly, that his findings were not supported by the evidence. Mr Franck also asserted that the trial judge had erred in finding that he was dishonest on the basis that he had not been warned that his honesty was in issue.

In the Full Bench judgment of Deputy Presidents Gilchrist, Calligeros and Crawley, Mr Franck’s appeals were dismissed. The Full Bench concluded that, in light of the statements, affidavits and other documents filed for trial, it was plain that his employer contended that the injury did not happen.

Significantly, the Full Bench also concluded that the trial judge had not erred in finding Mr Franck dishonest, having considered the totality of the evidence.

The Full Bench also considered whether it was appropriate to make a finding as to costs. In the circumstances, the Full Bench determined that it was open for the trial judge to order Mr Franck to pay the other parties’ legal costs under the relevant provisions of the Return to Work Act 2014 (SA). Therefore, the original decision was confirmed.

This is an interesting decision insofar as it considered the extent and implication of worker dishonesty when making a workers compensation claim. If your business receives a determination regarding a workers compensation claim that you do not agree with, particularly if the veracity of the claim is in issue, we encourage you to contact us to discuss options available to contest the claim.

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