Zhong v Workers' Compensation Regulator - [2018] QIRC 98

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Zhong v Workers' Compensation Regulator (2018) QIRC 098
PARTIES:	Zhong, Xiaoyong (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2016/99
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	19 July 2018
HEARING DATES:	15 and 16 May 2018
MEMBER: HEARD AT:	Vice President Linnane Brisbane
ORDERS:	1. The appeal is dismissed. 2. Mr Wang was a "worker" within the meaning of s 11 of the Act. 3. Mr Wang's injury meets the definition of injury in s 32 of the Act as his injury arose out of, or in the course of, his employment with Mr Zhong and his employment with Mr Zhong was a significant contributing factor to his injury. 4. The decision of the Workers' Compensation Regulator dated 31 May 2016 is confirmed. 5. The Appellant is to pay the Workers' Compensation Regulator's costs of and incidental to this appeal.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL - whether deceased was a worker - whether deceased sustained an injury within the meaning of s 32 of the Act - whether the relationship was an employment relationship or a contractor relationship - whether worker's injury arose out of, or in the course of, his employment.
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 Taxation Administration Act 1953 (Cwlth) Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561 Workers' Compensation Board of Queensland v Juran and Another (unreported, QSC, Mackenzie J, 11 February 1994) Hill v WorkCover Queensland [2005] QSC 257 Kevin Daly v Q-Comp [2009] QIC 32 Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd. [2014] ICQ 011 Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182
APPEARANCES:	Mr R. Yu of Counsel instructed by Pi-En Hsu Lawyers for the Appellant. Mr S. Gray of Counsel directly instructed by the Workers' Compensation Regulator for the Respondent.

Reasons for Decision

This is an appeal by Xiaoyong Zhong (Appellant) against a decision of the Workers' Compensation Regulator (Regulator) dated 31 May 2016. That decision of the Regulator was to confirm a decision of WorkCover Queensland (WorkCover) to accept an application for compensation by Mr Wen-Ping Wang in accordance with s 11 and s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act).

On or about 25 July 2015, Mr Wang fell off a ladder whilst painting a ceiling at 65 Sundance Way, Runaway Bay. Following the fall, Mr Wang was taken to the Queen Elizabeth II Hospital and was subsequently transferred to the Princess Alexandra Hospital with life threatening head injuries resulting from the fall. Mr Wang subsequently died as a result of those injuries.

On or about 29 July 2015 Ms Yun-Chen Lu, on behalf of Mr Wang, made application for compensation in respect of that fall by Mr Wang. Following assessment of Ms Lu's application, WorkCover made a decision and issued their reasons for decision dated 5 November 2015. That decision…

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.

Continue reading Zhong v Workers' Compensation Regulator

Details

AGLC: Zhong v Workers' Compensation Regulator [2018] QIRC 098
Case: [2018] QIRC 98
Decision Date: 19 July 2018

CaseChat Overview and Summary

The case of Zhong v Workers' Compensation Regulator involves a dispute over whether Xiaoyong Zhong, who was engaged in a painting project, was a worker under the relevant legislation and whether an injury he sustained was work-related. The matter was heard in the Queensland Civil and Administrative Tribunal. The core issues before the Tribunal were to determine whether Mr Zhong was a worker within the meaning of section 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) and whether the injury he sustained was an injury within the meaning of section 32 of the same Act. Additionally, the Tribunal needed to decide if Mr Zhong's employment with Everbright Services Pty Limited was an employment relationship or a contractor relationship and whether his injury arose out of, or in the course of, his employment.

The Tribunal examined the nature of the relationship between Mr Zhong and Everbright Services Pty Limited. Mr Zhong was initially engaged as an employee to supervise painters on a construction site but later transitioned to a sub-contractor role for the interior painting work. The Tribunal considered the terms of the agreements between the parties, the control exerted by Everbright over the work, and the economic reality of the relationship. The Tribunal found that Mr Zhong's role transitioned from an employee to a contractor, but his employment with Everbright was a significant contributing factor to his injury. The Tribunal also determined that the injury Mr Zhong sustained met the definition of an injury under the Act as it arose out of, or in the course of, his employment with Everbright.

The Tribunal dismissed the appeal and confirmed the decision of the Workers' Compensation Regulator that Mr Zhong was a worker and that his injury was compensable. The Tribunal ordered that the Appellant, Everbright Services Pty Limited, was to pay the Workers' Compensation Regulator's costs of and incidental to the appeal. This decision underscores the importance of the nature of the employment relationship and the circumstances in which an injury occurs in determining workers' compensation claims.

Orders

Orders of the court

1. The appeal is dismissed.

2. Mr Wang was a "worker" within the meaning of s 11 of the Act.

3. Mr Wang's injury meets the definition of injury in s 32 of the Act as his injury arose out of, or in the course of, his employment with Mr Zhong and his employment with Mr Zhong was a significant contributing factor to his injury.

4. The decision of the Workers' Compensation Regulator dated 31 May 2016 is confirmed.

5. The Appellant is to pay the Workers' Compensation Regulator's costs of and incidental to this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Xiaoyong Zhong's Evidence: Mr Zhong indicated that he required an interpreter to give evidence and an interpreter was provided. It became clear fairly early in his evidence that Mr Zhong was complaining about the interpreter's interpretation of the responses he was giving to questions asked of him. It became apparent that Mr Zhong's command of the English language was superior to that of the interpreter's command of the English language. In those circumstances, the interpreter remained near Mr Zhong in case he needed some assistance but otherwise ultimately he gave his evidence without the need for an interpreter. Sometime around April 2015 Mr Zhong was engaged by Mr Digen Hur who, at the time, was General Manager of Everbright Services Pty Limited (Everbright). Everbright, at the time, was involved in the construction of sixteen new townhouses at 36 Ewing Road, Logan Central (the Ewing Road site). Everbright engaged more than thirty persons each day during the construction period of those townhouses. Mr Zhong at this time was given a supervisory role over the painters employed by Everbright at the Ewing Road site. On 13 April 2015 Mr Zhong and Everbright signed a Work Order for painting work to the sixteen townhouses at an hourly rate of $25.00. The commencement date of this first arrangement was 16 April 2015. Ultimately this first arrangement existed only for the exterior painting of the townhouses. That Work Order referred to a Subcontract Number which was blank and then to the Subcontract Conditions. There was no evidence of Mr Wang signing a similar Work Order. Mr Zhong also had the role of finding painters to undertake the painting work at the Ewing Road site on behalf of Mr Hur or Everbright. Mr Zhong saw his role in the first arrangement as assisting in managing the painting work for Mr Hur and/or Everbright at the Ewing Road site. Mr Zhong also said that he provided Mr Hur with an ABN when he signed the Work Order although that is not noted on the Work Order. Both Mr Zhong and Mr Hur agreed that Mr Zhong was, at this time and at all times during the first arrangement, an employee of Everbright. It was Mr Zhong's evidence that he was introduced to Mr Wang through a mutual friend who was aware that Mr Zhong was looking for painters to perform work at the Ewing Road site. Mr Wang telephoned Mr Zhong and undertook one day's trial. Mr Hur then negotiated to pay Mr Wang a wage rate of $20.00 per hour. The arrangement for Mr Wang to perform painting work for Everbright occurred sometime in April/May 2015. During the first arrangement the individual painters on the construction site would complete timesheets and give them to Mr Zhong who in turn would provide them to Mr Hur. Mr Hur would then calculate the wages to be paid to the painters and give a cash cheque to Mr Zhong who in turn cashed the cheque and paid the individual painters on the construction site on behalf of Mr Hur and/or Everbright. The arrangement between Mr Hur and Mr Zhong changed when the interior painting of the townhouses was to be undertaken (the second arrangement). Mr Hur had complained that the exterior painting cost was excessive and over-budget. At this time Mr Zhong became a sub-contractor to Mr Hur/Everbright and he was then to engage the painters to undertake the interior painting of the townhouses. Mr Hur agreed to pay Mr Zhong a particular sum for the internal painting of each townhouse. In respect of this second arrangement Mr Zhong signed another Work Order. This Work Order (Exhibit 1) identified that it was for the internal painting only and the payment to Mr Zhong was a lump sum per unit of $2,812.50 inclusive of GST and the payment was to be made on the completion of the interior painting of each townhouse. The commencement date of this second arrangement was 24 June 2015.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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