Hou v Zhen Qi Hou Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hou v Zhen Qi Hou Pty Ltd [2021] NSWPIC 244
APPLICANT:	Zhen Qi Hou
RESPONDENT:	Zhen Qi Hou Pty Ltd
MEMBER:	Deborah Moore
DATE OF DECISION:	28 May 2021
CATCHWORDS:	WORKERS COMPENSATION- The applicant claimed section 60 expenses both past and in respect of a proposed ankle fusion resulting from an injury on 15 April 2014; liability for the section 60 expenses was declined by the insurer in several section 74 notices on the grounds that the applicant had not complied with the provisions of section 261 of the 1998 Act and additionally had no entitlement to such expenses because of the provisions of section 59A of the 1987 Act; Held- the applicant’s failure to make a claim was not occasioned by ignorance, mistake or other reasonable cause such that in accordance with section 261 of the 1998 Act, there is an award for the respondent; having made this determination, it was not necessary to address the section 59A issue; Burke v Suncorp Staff Pty Ltd applied.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Zhen Qi Hou, was a working director of Zhen Qi Hou Pty Ltd (the respondent) which was engaged in the construction of houses.
On 15 April 2014 whilst at work he fell and sustained a fracture of his right ankle.
He was treated in Ryde Hospital as an inpatient and discharged on 2 May 2014.
By an Application to Resolve a Dispute (the Application) registered in the Commission on 8 March 2021, he sought payment of past s 60 expenses together with future expenses related to a proposed ankle fusion and related procedures.
The respondent conceded that the applicant sustained an injury in the course of his employment as described.
Liability for the s 60 expenses was declined by the insurer in several s 74 Notices, namely on 27 July 2015, 8 September 2015 and 3 December 2015, and in s 78 Notices dated 20 December 2019 and 27 July 2020, on the grounds that the applicant had not complied with the provisions of s 261 of the Workplace Injury Management andWorkers Compensation Act1998 (the 1998 Act) and additionally had no entitlement to such expenses because of the provisions of s 59A of the Workers Compensation Act1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the issues in dispute are as set out in the various Notices referred to above.
The respondent did not dispute that the proposed surgery was reasonably necessary.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents; and
(b) Reply and attached documents.

FINDINGS AND REASONS

My determination of this dispute depends on my findings with respect to s 261 of the 1998 Act, since if the applicant is unsuccessful in relation to this issue, there is no need to deal with the s 59A issue.
It is thus appropriate that I deal with this issue first.
Section 261 provides as follows:
“(1)    Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware…”
In his only statement dated 27 January 2021, the applicant said:
“I speak very limited English and I require the assistance of an interpreter.
This statement was completed with the assistance of a Mandarin speaking interpreter.
I have completed high school in China. Following high school, I obtained a degree in Bachelor of Engineering from Xian University. After completing my university studies, I obtained a job as an engineer. I was engaged in doing a research on building of bridges.
I migrated to Australia in 1992…
Between 1992 and 1998, I worked for a company that manufactured sofas. I worked as a process worker where I made the sofas.
Whilst working as process worker, I was studying at TAFE doing Diploma in Building. I also obtained a Diploma in Business Management from Hoxton Park College.
In 1998 I set up my own business. A mandarin speaking accountant helped me set up my business. Due to my language barriers, I need someone who knew the legalities of opening a business to assist me. My accountant also informed me to take out a workers compensation insurance cover which I did.
My business engaged in the construction of houses. I am a licensed builder and I oversee and manage the construction of the entire house…
I employ about 2 or 3 other workers. I never had an employee get injured at work and go on workers compensation…
On 15 April 2014 I was at a construction site when I fell 3.2 metres landing on my right ankle…
When I had the injury…I was not aware that I was required to inform the insurance company. I have never had anyone lodge a [claim] in the past so I am not familiar with the process…
I was off work from the date of the injury to about January 2015…
I am now restricted to managing and coordinating jobs…
As I stated, I am not familiar with the laws and procedures…If my accountant had not informed me about workers compensation insurance I would not have known to take out a policy as I am not familiar with all the legalities…
From what I understood it was compulsory to take out this policy…
I do not recall receiving any policy information after taking out cover. Even if I did receive some information I would not have understood what the documents contain due to my English language barriers.
I have never had any employees go on workers compensation in the past so I am not familiar with the requirements/time frames of lodging a claim for a work-related injury.
After the fall at work I retained Slater & Gordon as my solicitors. The reason I retained [them] was because I saw their advertisement in the Chinese newspaper which advertised compensation for injuries suffered at work.
I was dealing with a Mandarin speaking lawyer and the advice provided to me at the time was to lodge a public liability claim only against the site I had the fall at.
The advice provided to me at the time was not to lodge a workers compensation claim and pursue a public liability claim instead. I did not know any better and followed the advice of my solicitor at the time. I placed all my trust in him.
Slater & Gordon commenced investigating a public liability claim on my behalf, and I was later told by mid- 2015 that this was not viable with a very small chance of being successful and I was advised to lodge a workers compensation claim.
When I lodged the workers compensation claim, GIO rejected my claim on the basis that it was lodged outside the 6 month period from the date of injury. This was when I was first made aware and learned about the 6 months time frame.
I was never advised of this prior to lodging the claim. My solicitors at the time never advised me…The only time limit I was advised of by Slater & Gordon was that I have 3 years from the date of the accident to sue the owner of the site…
If my solicitor had told me from the beginning to lodge a workers compensation claim I would have done so. As soon as I was informed that my public liability claim had no prospects, and I was advised to lodge a workers compensation claim I did this without delay.
When GIO rejected my claim I sought a request to review the decision to decline my claim. I informed GIO that I was only told to pursue a public liability claim by my solicitors hence why I did not lodge a workers compensation claim. Unfortunately GIO did not accept this reasoning…
I do not speak or read English. I am not familiar with the processes and procedure of what is required of me and I rely on the advice of professionals who unfortunately misinformed me…”
Despite the lengthy history of this matter, evidenced in part by the many s74 and 78 Notices to which I have referred, there are no other statements from the applicant.
In this particular case, the applicant bears the onus of establishing that that the failure was occasioned by ignorance, mistake, or other reasonable cause.
Counsel for the applicant urged me to accept that the applicant’s “ignorance” was occasioned by two main factors, firstly, his lack of knowledge of English and secondly because he was unaware of his rights.
“Other reasonable cause” it was submitted, was as a result of advice he received from his former solicitors to which I will refer more fully below, and which ties in with his claim that he was unaware of his rights.
I am not persuaded that the applicant’s knowledge of English is as limited as he claims for a number of reasons.
He is an educated man from China. He has been in Australia for some 29 years. He said that he completed not only a TAFE course being a Diploma in Building but also obtained a Diploma in Business Management from Hoxton Park College.
I doubt that he could have completed these courses without a reasonable knowledge of English: there is no evidence that such courses were taught in Mandarin.
He has run his own company for a number of years. He said that he employs others and oversees or manages the construction. Again, in my view this would be difficult if he had such a limited knowledge of English as he claims.
He also said that his Mandarin speaking accountant assisted him with setting up the business. Thus he was aware of the requirements of taking out workers compensation insurance. It is disingenuous to suggest that he would go through that process, outlay premiums for the policy and not be aware of its purpose.
Which begs the question: how did he manage to complete the courses referred to above but claim that he did not have the capacity to understand the advice given as regards an insurance policy?
In other words, I simply cannot accept that he could complete two courses yet fail to understand sufficient English to understand the policy he had and the procedures involved in making a claim.
The applicant also saw Dr K Cyril Wong 25 October 2019 at the request of his solicitors. Dr Wong said:
“Mr Hou attended this appointment alone. At the commencement of the interview I explained to him the purpose of the independent medical examination. He understood that there was no patient/treating physician relationship established. The examination proceeded with his verbal consent…
Mr Hou has a degree of Bachelor of Engineering from Xian University, China. He joined the work force after graduation in research in bridge building for 7 years. 1992 he came to Australia to further his study and obtained TAFE diploma in building. He started his own business in 1998.”
There is no evidence that the consultation occurred in any language other than English.
After his injury, the applicant engaged Slater & Gordon. A Costs Agreement from that firm dated 3 December 2014 refers to costs associated with a public liability claim. It is written in both English and presumably Mandarin.
As the applicant said, he had a Mandarin speaking solicitor so presumably he understood the nature of the claim and the advice he received from this lawyer.
Significantly in his statement the applicant said: “The advice provided to me at the time was not to lodge a workers compensation claim and pursue a public liability claim instead.” This suggests to me that the applicant understood the nature of a workers compensation claim as opposed to a public liability claim.
As Counsel for the respondent succinctly put it, was it ignorance or an active and conscious choice?
I can certainly accept that the applicant listened to the advice of his lawyer and chose initially to pursue a public liability claim until he received a letter from Slater & Gordon dated 21 July 2015 which stated:
“I advise that I have now completed my initial investigations into your claim… Based on the information I received I confirm that you do not have a viable public liability claim for compensation. If a court where to find that the owner builder (the defendant) did not have any experience in safety issues and found that you were responsible for dealing with the edge protection and/or had been involved in the provision of the edge protection on other areas, then the court would be entitled to find that the defendant had relied entirely on you as an expert and thus would avoid liability…”
That letter was in English only, and did not make any reference to pursuing a workers compensation claim.
Nevertheless, it seems that the applicant had some knowledge of workers compensation procedures because of the following letter (apparently wrongly dated 4 December 2013) addressed to the applicant from the Workers Compensation Commission:
“Dear Mr Zhen,
I refer to the enclosed Application for Review by Insurer forwarded in by you to the Workers Compensation Commission.
Please be advised that you must refer the above- mentioned application to the insurer.”
For a request for a review, I can only presume that an earlier claim or application had been made.
I also find it hard to believe that an experienced firm like Slater & Gordon did not tell him of any deadline for making a claim. Even if that were true, I am left wondering why the applicant did not pursue a claim in circumstances where he was off work and hospitalised for some time and presumably needed some income and medical expenses paid.
When told that there was little merit in a public liability claim, the applicant could still have pursued a claim, although out of time, on the basis of ignorance or mistake, and within the three year period.
I simply do not understand why the applicant did not consult his lawyer when he received the declinature letter from GIO. That letter was dated 27 July 2015 and stated:
“You notified GIO on 20 July 2015 of an injury occurring on 15 April 2014 in the course of your employment. GIO have received various documents from Ryde Hospital however none of these establish how your injury occurred…Section 261 of the 1998 Act outlines the time within which claim for compensation must be made and states that ‘Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened’”.
Curiously, the letter from Slater & Gordon advising him about his public liability claim was dated 21 July 2015, the day after the applicant lodged his workers compensation claim with GIO.
There is nothing in the evidence to explain this discrepancy.
The clinical notes from the Epping Healthcare Centre confirm that the applicant first attended there on 15 April 2014.
On 2 May 2014 it was noted that he had just been discharged from hospital.
On 26 October 2014 the entry reads: “c/o still pain when walking. Want to have Legal action against W/C. suggest to see his lawyer.”
On 27 March 2015 the entry reads: “Letter written to !care Physiotherapy & Rehabilitation printed…”
On 11 September 2015 the entry reads: “came for medical certificate. current works as part time- pain in right heel which limited him to works more [sic] - want to have W/C.”
These entries suggest to me that the applicant certainly had some knowledge of workers compensation procedures at least as early as October 2014.
Other documents raise serious doubts in my mind as to the veracity of the applicant’s statement.
The Claim Form dated 16 September 2015 is clearly in the applicant’s own handwriting, and sets out all details required. It is written in good English, includes his Hotmail address, and is signed by him as director.
The questions were all in English such as “How many hours are you working?” to which the applicant replied “20”. When asked “What is your usual occupation/what do you do?” the applicant replied “Builder, carpentry, concretor.”
There is no suggestion anyone else filled out that document because the handwriting and signature are identical with the Application for Review completed by the applicant on 7 August 2015.
When asked: “Please identify the decision that you are requesting the Insurer review” the applicant ticked “liability for the Injury, medical expenses and amount of weekly payments.”
The applicant then explained the reasons for requesting a review, principally because his lawyer advised him to lodge a public liability claim instead.
On 21 August 2015 the applicant apparently (absent any evidence to the contrary) typed and sent the following letter:
“Zhen Qi Hou
214 Mahon Road North Epping NSW2121
21/08/2015
TonyDilosa
Claims Advisor
GIO-Agent for the NSW WorkCover Scheme
DearTony,
RE: Claim No. TCM97/G 11&1254157
I received your letter dated 27/07/2015 and I made mistake to reply your letter with application for review and sent to Workers Compensation Commission on date 07/08/2015.

l received the letter from Workers Compensation Commission and he told me to send those documents to you.

So I sent those documents to you for the review.

Sorry for the delay.
Your Sincerely
Zhen Qi Hou”
Although not in perfect English, it can be readily understood. The signature is identical to earlier documents to which I have referred.
The respondent commissioned a Factual Report from AB Investigations dated 24 August 2015.
There are several pertinent remarks as regards the applicant’s claim of “ignorance” and lack of knowledge of English.
At that time, the applicant had two employees, and was clearly still working in his business, and I assume as director managing and directing his employees.
The report continued:
“He explained that after his injury his investments were affected because prior to the injury he was able to work full time on the house/land and within the Insured Company. Since the injury however he has not been able to work full time which subsequently affected the income he was able to make. In effect he had 7 months of no work and was only able to go back to work part time.
He holds a TAFE associate diploma of applied science (Building) obtained in Australia. He is a qualified builder and has a building licence number… expiry 5 June 2017 issued by Fair Trading. In addition he holds an occupational health and safety card referred to as a white card.”

It does not seem credible that the applicant would not seek some weekly compensation and/or medical expenses if in fact he was in financial difficulties. Moreover, his qualifications are greater than he claimed in his statement and again suggest to me that he has a much greater knowledge of English than he claims.
Consistent with my views above is a medical certificate from a doctor at Ryde Hospital dated 22 April 2014 when the applicant was still an inpatient which reads: “unfit for work but will be attending the Tribunal hearing…”
Once again, there is nothing in the applicant’s statement that addresses these matters.
It is clear to me that the applicant on at least several occasions discussed compensation for his injury with his doctors, such that I can infer, particularly in the absence of any earlier statements, that he had knowledge of his rights and entitlements to compensation.
Counsel for the applicant submitted that the terms of s 261 were precise and specific as to the concept of “ignorance.” In short, it must be ignorance as it relates to any right to make a claim and seek compensation. An example was provided that a professor of English with thorough knowledge of the language may be utterly ignorant of his or her rights to compensation for an injury.
Reference was made to the decision of Burke J in Gregson v L & Mr Dimasi Pty Ltd [2000] NSWCC 47; (2000) 20 NSWCCR 520 (11 August 2000) where His Honour said at [61]:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
In that case however there were several relevant issues addressed in the evidence including absence from the state and the health of the workers son who subsequently died.
In Westlake v Sydney Symphony Orchestra Subscribers Committee[2009] NSWWCCPD 12 Deputy President O’Grady considered similar issues. He said:
“65. It is my opinion that the Arbitrator’s findings with respect to the Appellant’s knowledge of his hearing difficulties over a period of time do not directly address the question as to ‘ignorance’ of the matters enunciated by Burke J in Gregson.
66. There is no evidence of any weight before the Commission which addresses the question as to the Appellant’s state of knowledge concerning his rights and obligations under the relevant compensation law at various times since 1978. The onus is upon the Appellant, and such evidence is essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions. The Appellant has failed to establish such entitlement and, in those circumstances, I respectfully agree with the Arbitrator’s conclusion that the Appellant is debarred from recovery of compensation by reason of his non-compliance with the relevant provisions concerning notice of injury and making of claim.”
Similar issues have been considered more recently in Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6 (23 April 2021) (Burke) where Deputy President Snell confirmed a Member’s determination stating:
“23. The Member turned to s 261 of the 1998 Act. He accepted Dr Rastogi’s opinion that the appellant had no capacity for work due to the chronicity of her condition, and that this was permanent…This was sufficient to bring the appellant within the ‘exception to the three year rule’, because she had suffered serious and permanent disablement… He then turned to whether he accepted the appellant’s ‘claim of ignorance’.
24.     The Member referred to the appellant’s submission that she failed to make a claim at an appropriate time ‘because she did not realise that a claim could be made in this jurisdiction for the consequences of a psychiatric injury’. He noted the appellant had been employed by an insurance company in a department that processed claims. She was ‘successfully assessed under her income protection policy following her psychiatric injury in 2010. She had previously successfully completed a workers compensation claim in respect of a back injury. The Arbitrator said that the respondent’s counsel expressed ‘some reservations’ about the appellant’s submission on this issue. The Member said: ‘I share those reservations.’ He said he had already found the appellant’s evidence to be unreliable. He found the appellant’s explanation to be inadequate. She said she had not discussed the availability of workers compensation when arranging her income support claim. She did not discuss her consultation with Dr Lovric where the topic was raised twice.
25.    The Member said ‘it may very well be that she did not consider her options at that time, not out of ignorance, but because she was receiving weekly payments under her income protection policy and, as she said, did not turn her mind to her rights at workers compensation.’ He said this was ‘a different proposition from being ignorant of the existence of those rights’. The Member referred to the appellant’s history of working as a manager, in a responsible job with David Jones, before she commenced with the respondent. She would have performed her duties as a claims officer in a responsible way also. She was aware of the workers compensation scheme as she had previously made a claim herself. The Member said it was likely she would have been aware of the existence of workers compensation for psychological injuries. The Member said he was not persuaded of the appellant’s ignorance in this regard.
26.   The Member found that the appellant’s failure to make a claim was not occasioned by ignorance. There was an award for the respondent.”
The facts of that case may be different, but the Member was similarly tasked as I am with evaluating the evidence which, as Deputy President O’Grady said “is essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions.”
The applicant in the present case is educated, is the director of his own company, has a reasonable command of English for the reasons stated, sought advice from his accountant about a workers compensation policy (which he must have understood if it was in Mandarin) and discussed pursuing a claim both with his doctors and in writing to the insurer.
It may well be that in deciding to pursue a public liability claim initially he did not “turn his mind to his rights at workers compensation.” I agree with the observations in Burke that this is “a different proposition from being ignorant of the existence of those rights.”
I too have reservations about the applicant’s evidence. Overall it is both unreliable and his explanations when challenged over the years in relation to his claim are inadequate.
For these reasons I do not accept that the applicant’s failure to make a claim was occasioned by ignorance, mistake or other reasonable cause such that in accordance with s 261 of the 1998 Act, there is an award for the respondent.
Having made this determination, it is not necessary for me to address the s 59A issue.

[2021] NSWPIC 244

28 May 2021