Experienced solicitor caught in hearing aid diddle … Professional misconduct … Falsifying workers compensation claim … Concealing prior claim history … Solicitor’s actions driven by professional embarrassment or self-interest … Reporter Luan Whitworth at NCAT 

Last month, the NSW Civil and Administrative Tribunal found that Peter James Livers deliberately misled the Workers Compensation Independent Review Office (WIRO) by falsifying answers in an application form and in the contents of supporting documents.

The tribunal found that Livers’ actions “point to a course of conduct that was deliberate [and] was more than a case of reckless indifference or reckless carelessness”.

Mr Souaid approached Livers in November 2011 and instructed him to lodge a claim for industrial deafness as a result of working as a cleaner from 1985 to 2008.

Livers drafted a statement for Souaid to sign and arranged for him to attend an assessment with a hearing specialist. 

In a medical report, the specialist assessed Souaid’s hearing loss as equating to 11 percent of total body impairment (meeting the claim threshold to receive compensation under section 66(1) of the Workers Compensation Act 1987 and quoted $5,322.35 for the supply and fitting of a hearing aid.

Both the client statement and medical report were dated 2012 and were attached to the claim lodged in March of that year.

In November 2013, the WCC issued consent orders directing Souaid’s insurer to pay him $20,400 for whole person impairment and pain and suffering, but no amount for hearing aid expenses.

Livers prepared a new claim for hearing aid expenses which was lodged in September 2014. As part of the new claim, Livers completed and approved an application form that repeatedly asserted that no prior claims for industrial deafness had been made by Souaid. The form also contained other inaccuracies as well. 

Attached to the application was the same medical report and client statement submitted in the earlier 2012 claim, however, the dates had been altered to read 2014. 

The client statement had also been altered to state that Souaid “did not make a claim earlier for hearing aids”.

WIRO lodged a complaint to the Legal Services Commissioner in March 2015 regarding Livers’ conduct. 

In its application for a strike-off order, the commissioner alleged that Livers misled or attempted to mislead WIRO to obtain a grant of funding by:

• Altering the date on the medical report from ‘2012’ to ‘2014’;
• Drafting and relying on the client statement which he knew was false, or he was recklessly careless as to whether or not it was false; and
• Preparing and relying on the application form which contained material omissions and/or false assertions.

While Livers admitted to altering the client statement, he consistently denied his involvement in the other allegations.

In his defence, Livers conceded that the date on the medical report had not been altered by him, but may have been due to a photocopying error.

Livers said he was not required to disclose the prior claim history in the application form despite a provision barring further claims for medical expenses made more than 12 months after the date the initial compensation claim was made (see schedule 4). 

Livers argued that the 2014 claim was not precluded by this provision because no claim for hearing aids had formed part of the WCC’s consent orders in 2013.

Livers’ explanations were found by the tribunal to be “entirely unsatisfactory”. 

The tribunal was of the view that Livers mistakenly failed to address the issue of the hearing aid expenses in the WCC’s final consent orders in 2013 and reopened the matter in the 2014 claim out of “embarrassment or for more self-interested reasons”.

According to NCAT, “it was clearly in [Livers’] interests to conceal the prior history, if he was to succeed in that application”.

Even if the 2014 claim was precluded by the 12 months bar, the tribunal held that “that did not justify a complete failure to refer to the prior claims history” in the application form.

The tribunal further found that Livers’ amendment to the client statement “was a precise one [that] reflected a consciousness on the part of the practitioner to seek to hide from view the earlier hearing aid claims history”. 

Similarly, it was the tribunal’s view that Livers deliberately altered the dates of the medical report and client statement to minimise any suspicion in the minds of WIRO officers over the history of the claim.

The tribunal ultimately found that Livers “engaged in an intentional act of deliberate dishonesty” which amounted to professional misconduct in relation to all three allegations. 

Submissions are underway for an “appropriate disciplinary order”.