Hou v Zhen Qi Hou Pty Ltd - [2021] NSWPIC 244

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 244
Decision Date: 28 May 2021

CaseChat Overview and Summary

The applicant in this case sought section 60 expenses for past and future medical treatment related to an ankle fusion surgery stemming from an injury sustained on 15 April 2014. The respondent insurer had declined to pay these expenses through several section 74 notices, asserting that the applicant had failed to comply with section 261 of the 1998 Act and additionally had no entitlement to the expenses under section 59A of the 1987 Act. The dispute was heard and determined by the relevant Australian court.

The primary legal issues before the court were whether the applicant's failure to make a claim for section 60 expenses was due to ignorance, mistake, or other reasonable cause, as required by section 261 of the 1998 Act, and whether the applicant was entitled to the expenses under section 59A of the 1987 Act. The court had to evaluate the evidence and arguments presented by both parties to make a decision on these issues.

After reviewing the evidence and applying relevant legal principles, the court found that the applicant's failure to make a claim for section 60 expenses was not due to ignorance, mistake, or other reasonable cause. Therefore, the court awarded the respondent insurer, in accordance with section 261 of the 1998 Act. Since the first issue was resolved in favour of the respondent, the court did not need to address the section 59A issue. This decision was influenced by the precedent set in Burke v Suncorp Staff Pty Ltd.

The final orders of the court were that the applicant's claim for section 60 expenses was dismissed. The court held that the respondent insurer was not liable for the expenses claimed by the applicant. This decision was based on the applicant's failure to make a claim under section 261 of the 1998 Act, and the court did not find it necessary to consider the section 59A issue.

Orders