ZKM Pty Ltd v Chen - [2022] NSWPIC 108

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ZKM Pty Ltd v Chen [2022] NSWPIC 108
APPLICANT:	ZKM Pty Ltd
RESPONDENT:	Zhu Chen
MEMBER:	Rachel Homan
DATE OF DECISION:	17 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for apportionment of lump sum death benefit and orders with respect to payment; adult children of deceased worker elected not to claim a portion of the lump sum; identification of other dependants; application for orders for payment of interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); when was the claim duly made; delays in making the claim due to difficulties identifying the correct employer; allegation of fraud in concealing the employer’s identity; request in the alternative for orders pursuant to section 235B of the 1998 Act; Held- the respondent was the sole dependant of the deceased worker; orders for payment of the lump sum pursuant to sections 29(1A) and 85A(1) of the Workers Compensation Act 1987; interest to be paid from date Application lodged until initial teleconference at 2% above the Reserve Bank of Australia cash rate; no order made pursuant to section 235B of the 1998 Act.
DETERMINATIONS MADE:	1. The deceased worker, Deyun Xue, died on 23 June 2016 as a result of an injury sustained in the course of or arising out of employment with the applicant. 2. The respondent, Zhu Chen, was a dependant of the deceased worker who was wholly or partly dependent for support upon him at the date of his death. 3. Ailing Xue and Wang Xue have elected not to pursue or have waived any entitlement to any portion of the lump sum death benefit. 4. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of his death. 5. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $760,000.
ORDERS MADE:	1. The applicant to pay the lump sum death benefit of $760,000 to the respondent, Zhu Chen, pursuant to ss 29(1A) and 85A(1)(a) of the Workers Compensation Act 1987. 2. The applicant to pay interest on the lump sum death benefit pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 at the rate of 2.1% for the period 6 December 2021 to 27 January 2022. 3. The Personal Injury Commission declines to make any order pursuant to s 235B of the Workplace Injury Management and Workers Compensation Act 1998.

STATEMENT OF REASONS

BACKGROUND

Mr Deyun Xue (the deceased worker) was employed by ZKM Pty Ltd (the applicant) when he contracted Klebsiellas Pneumonia leading to his death on in June 2016. The deceased worker was 40 years old at the time of his death.
Solicitors acting for Ms Zhu Chen (the respondent) made a claim for compensation in respect of the deceased worker’s death. The respondent is the deceased worker’s spouse.
On 1 December 2021, the applicant’s insurer wrote to the…

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: [2022] NSWPIC 108
Decision Date: 17 March 2022

CaseChat Overview and Summary

ZKM Pty Ltd was involved in a legal dispute with Chen concerning the apportionment of a lump sum death benefit and related payments. The dispute arose following the death of a worker, and the matter was heard by the Workers Compensation Regulator, which is part of the New South Wales Civil and Administrative Tribunal. The central issue before the court was the identification of the deceased worker's dependants and the subsequent distribution of the lump sum death benefit. Additionally, Chen sought orders for the payment of interest on the lump sum in accordance with section 109 of the Workplace Injury Management and Workers Compensation Act 1998. The court was also required to determine whether any delay in making the claim was justified and whether there were grounds for an alternative order under section 235B of the 1998 Act.

The court found that Chen was the sole dependant of the deceased worker. The adult children of the deceased had elected not to claim a portion of the lump sum. As a result, Chen was entitled to the entire lump sum death benefit. Regarding the interest on the lump sum, the court determined that interest should be paid from the date the claim was lodged until the initial teleconference at a rate of 2% above the Reserve Bank of Australia cash rate. The court did not make an order pursuant to section 235B of the 1998 Act, as there were no compelling grounds to do so.

In summary, the court ruled in favour of Chen, confirming her status as the sole dependant and ordering the payment of the lump sum death benefit. Additionally, the court ordered interest to be paid on the lump sum from the date the claim was lodged until the initial teleconference. No alternative order was made under section 235B of the 1998 Act.

Orders