Brett Fitzpatrick spent a decade working as a prison guard at the Silverwater correctional facility in NSW, dealing daily with some of the country’s most dangerous criminals. But it was his battle with the workers’ compensation system that almost destroyed him.
“I’m one individual going up against an entire system,” he says. “They’ve got billions of dollars behind them, they’ve got unlimited resources, and what do I have? I have absolutely nothing.”
Fitzpatrick is one of three prison guards employed by NSW Corrective Services whose claim for workers’ compensation based on bullying and harassment has been declined by insurance giant QBE.
QBE manages workers’ compensation claims for corrective services staff on behalf of icare, which runs Australia’s biggest workers’ compensation scheme.
For five years, he has been fighting to expose the truth. Now, a key insurance regulator says it will reinvestigate the treatment of his case amid claims an earlier report by consulting firm KPMG, which examined the situation for icare, was watered down.
“I’m trying to fight all these multiple parties … all at the same time whilst dealing with a mental incapacity,” he says. “It’s like being in a boxing match with one arm tied behind my back.”
Fitzpatrick’s story came to light after a joint investigation by The Age, The Sydney Morning Herald and ABC TV’s Four Corners into the nation’s $60 billion workers’ compensation system. It uncovered mismanagement in the NSW government-run icare and “unethical” conduct in Victoria’s scheme, which together cover nearly half of the nation’s workforce.
The investigation has obtained a copy of the draft report by KPMG into Fitzpatrick’s case, which gives a glimpse into practices used to knock back claims, including doctor-shopping, a practice in which insurers or employers use doctors who have a track record of toeing the line. The draft report also refers to “missing files” and the altering of statements.
The KPMG report was commissioned by icare after a QBE informant linked to one of the guards raised allegations of collusion between QBE and Correctional Services to deny Fitzpatrick’s and his colleagues’ claims. KPMG was paid $200,000 for the forensic investigation.
The State Insurance Regulatory Authority, which regulates workers’ comp in NSW, told The Age, Herald and Four Corners it is conducting its own investigation into the case, including concerns that KPMG walked back some of its initial recommendations.
The draft version of the report was completed in April 2018, months after the new icare claims management system had been rolled out and shortly after icare’s chief executive had moved to QBE.
It cites a disturbing conversation in which NSW Corrective Services urges QBE to decline a claim so that the prison guard is “left short of money and has to return to work due to … financial hardship”.
The Corrective Services employee, who is still on the payroll, tells QBE: “Sometimes it’s cruel to be kind and hit them in the pocket. And when he’s not getting any money and he’s married with kids and most probably his own home, he’s most probably got to think well f— sake I’ve got to do this.”
QBE replies: “Yeah … I think he’s close to that now.”
KPMG’s investigation reveals that QBE’s lawyers initially recommended the prison guard’s claims be accepted but then reversed that decision. The reversal came after a meeting between QBE, its external lawyers and Corrective Services, which resulted in the employer altering a statement of events.
The draft KPMG report recommends a review of QBE and/or the Department of Correctional Service’s email servers to try to find out why the statement was changed and “why details aren’t included in the files or provided as evidence to KPMG as part of its forensic investigation”.
It also refers to emails in which the employer directs QBE to use a specific independent medical examiner to assess the guard’s claim. Other emails refer to Correctional Services directing QBE to ask one of the doctors certain questions. The QBE case manager then sends the questions to the employer for approval. The Department of Corrective Services sends an email to QBE and indicates “these questions are great”.
KPMG includes in the draft report a traffic light rating system that assigns a series of red ratings to the allegation that QBE “essentially followed the employer’s desired actions on the claim” and “evidence held on file did not support a sound rationale for the claim’s management actions, inactions or delays on the claim”.
There is no overall finding of collusion in the draft due to lack of documentation, but the draft report calls for a further investigation, which is rejected by icare.
A watered-down final report
The final report is much tamer. A number of recommendations and findings have been removed along with the conversation outlining the plot to deny the claim. The traffic light rating system has also been abandoned.
The final report does say that QBE and its legal team “appear to be attempting to fit evidence to a particular narrative and specific tailored evidence”.
It comes at a time when so-called independent consultants and lawyers have been under fire following revelations in the Hayne banking royal commission.
These include revelations that wealth giant AMP reviewed and directed changes to numerous drafts of an expert report it commissioned from law firm Clayton Utz into the “fees for no service” scandal.
Icare CEO John Nagle tells the joint investigation he doesn’t believe the KPMG report has been watered down. “The first version contained information that was basically just hearsay. So we asked KPMG to just stick to the facts that were actually available,” he says.
“And so they had to amend their report. That is the report that was used.
“If you take out speculation and rumour, you’d have a change in the report.”
SIRA chief executive Carmel Donnelly tells the joint media investigation she met Fitzpatrick and heard his story. She says she has ordered an investigation into the handling of the claim including the two versions of the KPMG report.
“It’s a very thorough investigation,” she says.
“I’ve used my powers to obtain thousands of documents related to those claims and it’s an investigation that’s happening at arm’s length for me.”
That report is expected to be completed in the next week or so.
A Corrective Services NSW spokeswoman says “we do not condone the language used by the staff member in their dealings with QBE” but she fails to answer why the staff member is still in the job or what other action has been taken.
A QBE spokesman says no action is required because “KPMG determined that there was no evidence of fraud or collusion between QBE and the employer, no evidence to support allegations that QBE was involved in the alteration of evidence and no evidence that QBE did not adequately investigate the medical aspects of the psychological injury”.
QBE does concede that some administrative practices “could be enhanced” and says efforts have been made to strengthen record-keeping practices.
KPMG says it “believes the final report accurately reflects the information gathered during the forensic claim file review. We stand by the quality of our work — including our key findings, which were consistent between reports — which ultimately recommended the case in question be reconsidered”.
Fitzpatrick is getting workers’ compensation and is seeking damages in the NSW District Court.
“I can’t tell you how many times in the last five years I’ve been knocked down, and as the years go on, the more times you get knocked down, the longer it takes to get back up,” he says.
“They’ve treated me like a leper. They’ve ostracised me. Left me out in the wilderness to rot, given me no assistance whatsoever and just hoped that I go away.”
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Adele Ferguson is a Gold Walkley Award winning investigative journalist. She reports and comments on companies, markets and the economy.