Chen v Q-COMP [2012] QIRC 8

CITATION: Cui Ling Chen AND Q-COMP (WC/2011/284) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Cui Ling Chen AND Q-COMP (WC/2011/284) COMMISSIONER FISHER 3 February 2012 Appeal against decision of Review Unit, Q-COMP - Issue whether appellant was a worker at the time of sustaining injury - Onus of proof - Balance of probabilities - Witnesses - Evidence - Acrimonious relationship - Operating machine - Finger severed - Credibility of witnesses - Evidence unsatisfactory - Not satisfied appellant was a worker within the meaning of s. 11 of the Act - Appeal dismissed. DECISION [1] Cui Ling Chen (the Appellant) has appealed against the decision of the Review Unit, Q-COMP (Q-COMP). That decision was to set aside the decision of the Insurer to accept the Application for Compensation and to substitute another decision that she was not a worker within the meaning of s. 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) and to reject the Application for Compensation. [2] On appeal the only issue for determination is whether Ms Chen was a worker within the meaning of s. 11 of the Act at the time of sustaining an injury at the Good Luck Noodle factory on 14 July 2010. If the Queensland Industrial Relations Commission (the Commission) were to find in favour of the Appellant then Q-COMP accepts that the elements of s. 32(1) of the Act would be met. [3] The Appellant bears the onus of proof on the balance of probabilities that she was a worker within the meaning of s. 11 of the Act. Evidence [4] The witnesses who gave evidence in the Appeal are listed below. Those who gave evidence through an Interpreter are identified with the language spoken shown in parentheses. For the Appellant Cui Ling Chen, the Appellant (Cantonese); Cameron Bruce Bulow, Plumber/drainer and owner of Apex Contractors, Coopers Plains; Kitti Mim Sitanaporn, Motor Mechanic; and Xina Chang Castillo, daughter of Ms Chen and Mr Chang Castillo. For Q-COMP Liu Ai Xiang, former employee of Good Luck Noodle (Mandarin); Baljinder Singh, employee of Good Luck Noodle (Hindi); and Fernandes Chang Castillo, owner of Good Luck Noodle (Cantonese). Background [5] Ms Chen and Mr Chang Castillo were married in February 2008 having previously lived together as husband and wife under Chinese law since 1990. Ms Chen and Mr Chang Castillo separated in May 2008 and since then have lived apart. In July 2010 the two youngest children of the relationship, then aged 15 and 8, lived with Ms Chen. Ms Chang Castillo was living with her father in 2010 but has since returned to live with her mother. [6] The separation of Ms Chen and Mr Chang Castillo has been acrimonious with the police being called on several occasions by Mr Chang Castillo on being assaulted by his wife. On one occasion in June 2008, following an application made by the Queensland Police Service, a Protection Order was issued by the Magistrates Court under the Domestic and Family Violence Protection Act 1989. Mr Chang Castillo was the person protected by the Order and Ms Chen was the person to whom the Order was directed. [7] Both Ms Chen and Mr Chang Castillo acknowledged in their evidence that this acrimonious relationship continues. Ms Chen asserted that Mr Chang Castillo did not pay child support for the children and she had to regularly ask him for money. Until Ms Chen claimed to have started work at Good Luck Noodle she lived on -- 1 of 7 -- 2 Centrelink benefits. Mr Chang Castillo agreed that he did not pay child support but said he regularly gave money to Ms Chen. [8] Ms Chen was operating a machine in the Good Luck Noodle factory on 14 July 2010 when it severed her finger. She put her hand into the machine to push dry noodle dough in order to assist with the mixing process. [9] Mr Chang Castillo did not have workers' compensation insurance at the time the injury occurred. The Evidence for the Appellant Ms Chen [10] Ms Chen said that Centrelink requested that she look for work. She was interested in work during school hours. She asked her husband twice for a job at the factory. On the first occasion Ms Chen asked, she said that she told Mr Chang Castillo that she needed to look for work as he did not support the children. Mr Chang Castillo did not accede to her request and said that someone else was employed. Ms Chen replied that she should replace that person and be paid wages. The person to whom reference was being made was Ms Liu. On the second occasion that she asked him for a job, 4 July 2010, Ms Chen said that Mr Chang Castillo agreed to employ her and pay her $500 per week. [11] Ms Chen said she commenced work at the factory on 5 July 2010 at about 9.00 a.m. On her first day she assisted her husband pack the noodles for him to deliver. She said Mr Chang Castillo prepared the other ingredients for her to put into the machines while he was out. [12] Ms Chen said she recorded her working hours in a book. The two pages on which they were recorded are torn from the book. The following are the dates and times shown on the torn out pages: Monday 6 July 2010 - 9.00 a.m. to 12.30 p.m. and 6.30 p.m. to 12.30 p.m. (sic); Tuesday - 9.00 a.m. to 7.00 p.m.; Wednesday - 9.00 a.m. to 1.30 p.m. and 4.00 p.m. to 9.30 p.m.; Thursday - 8.00 a.m. to 2.30 p.m. and 6.00 p.m. to 1.00 a.m.; and Friday - 8.00 a.m. to 10.00 p.m. (At the conclusion of this Ms Chen noted that she had worked 60 hours). Sunday 11 July 2010 - 11.00 a.m. to 9.30 p.m.; Monday - 9.00 a.m. to 5.30 p.m.; and Tuesday - 9.00 a.m. to 2.00 p.m. [13] During the first period of work Ms Chen's older daughter, Xina, asked her for $80. Ms Chen said she did not have the money then but would take her to the factory on Saturday to ask for her pay. Ms Chen said that Mr Chang Castillo paid her $500 in cash. She was required to sign an exercise book on receipt of the money. In cross-examination Ms Chen denied that the $500 given to her by Mr Chang Castillo was for living expenses. She reiterated that the money was for wages. Ms Chen said that after the separation and before commencing work in the factory, Mr Chang Castillo had never given her money but he had given money to the children. [14] On the day of the accident Ms Chen said she went to work at 9.00 a.m. and was working there until the accident happened at about 1.00 p.m. - 1.30 p.m. [15] In cross-examination Ms Chen denied that when she attended the factory on 14 July 2010 she yelled at Mr Chang Castillo. She also denied that Mr Chang Castillo was on his way to do a delivery and that she would not leave the factory. Ms Chen said she had Mr Chang Castillo's permission to use the noodle making machines because she was required to get the noodles ready otherwise he would not be able to do anything. [16] Ms Chen denied that in May 2010 she had a fight with Ms Liu and told her to leave. [17] Ms Chen was taken to the two pages from the notebook and asked to identify where in the book they had been torn from. Ms Chen was able to show the Commission but only one page is shown to have been torn out. [18] Ms Chen was also taken to other parts of the notebook where she had written dates and times for "work" for earlier periods in 2010 followed by amounts of money. Ms Chen was not able to explain these notations. Ms Chen said the money amounts related to what she needed to spend. She consistently denied having previously worked before starting at the Good Luck Noodle factory. -- 2 of 7 -- 3 [19] Ms Chen was also asked whether she had previous experience with making noodles at another noodle factory. She said her eldest sister used to have a noodle factory and she "picked up" how to make them through watching others. However, Ms Chen then said she only knew how to pack but not how to operate a machine. [20] Ms Chen was asked questions about a patient election form completed on 4 August 2010. She was shown the form but Ms Chen said she could not read it and nor did she complete it. However, when Ms Chen was referred to the first question, which asked, "Are you a public patient", she replied "I don't understand what is meant by 'public' or private' …". When Counsel for Q-COMP pointed out that he had not mentioned anything about "private", Ms Chen said that "she could not remember so many things" and did not know the difference between public and private. [21] Counsel for Q-COMP then took Ms Chen to other questions in the form such as the patient's Medicare number and whether the patient holds a Department of Veteran's Affairs entitlement card etc. The form also asked whether the patient has a work related injury or illness. The answer ticked was "no". Until Ms Chen was taken to that question and answer she had confirmed that the previous answers on the form were correct. Ms Chen said that she had had an accident at work but could not explain why the answer to the question was "no". All she did say was that there were so many documents and she could not remember. [22] Counsel for Q-COMP also cross-examined Ms Chen about her psychiatric history. She initially said she saw a psychiatrist twice however later conceded that she had had quite a few consultations. (The records show that Ms Chen saw the psychiatrist 11 times between 29 September 2008 and 31 May 2010). Ms Chen accepted that the psychiatrist diagnosed her with depression but did not accept that the diagnosis extended to her bordering on being delusional and suffering from jealousy. [23] Ms Chen was cross-examined in relation to instances of domestic violence alleged to have been perpetrated by her, including the incident leading to the police applying for a Protection Order. Ms Chen said that since being subject to the Protection Order she had not been violent towards Mr Chang Castillo. She particularly denied making threats against Mr Chang Castillo at the factory on 5 December 2010 and again two days later by telephone. Ms Chen did however concede that she said by telephone two days later that when she came back from China maybe Mr Chang Castillo would be dead already. Ms Chang Castillo [24] Ms Chang Castillo confirmed that she had asked her mother for $80 in July 2010 but her mother did not have the money. She accompanied her mother to the factory on the Saturday in July after her mother's first week at work. She saw her mother enter the factory and when she emerged she had $500. [25] Ms Chang Castillo also gave evidence that her father had told her not to give evidence in these proceedings because if she lied then she would be blacklisted and unable to get a mortgage. She denied that the conversation was to the effect that her father requested that she ask her mother not to sue him. Mr Bulow [26] Mr Bulow explained that his business is located diagonally opposite Good Luck Noodle. He said that he regularly saw Ms Chen at the "noodle shop" before she was injured. He estimated this to have been three to four times a week, usually in the morning. On occasion he saw her in the afternoons at different times. [27] Mr Bulow also said that he had seen Ms Chen wearing a hair net of the type used in food preparation areas. [28] In cross-examination Mr Bulow acknowledged that he could not see into the factory and hence could not say whether Ms Chen was working. Mr Sitanaporn [29] Mr Sitanaporn works for a business situated next door to Good Luck Noodle. On 14 July 2010 he heard a woman scream and about 10 minutes later Ms Chen ran to the door of his business and asked that she be taken to hospital. Mr Sitanaporn said he had seen Ms Chen before the day of the accident. The Evidence for Q-COMP Mr Chang Castillo [30] Mr Chang Castillo denied that Ms Chen worked at Good Luck Noodle or that he paid her to work at the factory. He said that she would come to the business premises quite often and would scold him and ask for money. Mr Chang Castillo would give Ms Chen money whenever she asked for it to "stop her from making so much -- 3 of 7 -- 4 noise". He said that he regularly gave Ms Chen varying sums of money but despite this, she would deny that she had received any money. [31] Mr Chang Castillo confirmed that Ms Chen had told Ms Liu to leave the factory. He agreed that Ms Chen had asked him for a job even before Ms Liu left but he would not employ her for two reasons. One was that when he had a previous business which required him to travel to China Ms Chen had become jealous and insisted on accompanying him even though it was not profitable to do so. The other reason given was that Ms Chen "stirred things up" by scolding him and being physically violent towards him. He recounted several occasions where physical violence had occurred, including by use of a cooking utensil, a broom and an umbrella. The incident with the umbrella occurred on 5 December 2011 when Ms Chen arrived at the factory at 9.00 p.m. and told him of the hearing date of the appeal. Ms Chen then is alleged to have said that if she lost that she would buy a gun and kill him. Mr Chang Castillo said that he did not want to go to court but that Ms Chen had pushed him there. At that point Ms Chen attacked him with an umbrella and so Mr Chang Castillo called the police. Ms Chen left the factory as Mr Chang Castillo was talking to the police. Mr Chang Castillo asserted that Ms Chen had made a further threat by telephone two days later at 6.58 a.m. [32] Mr Chang Castillo agreed that Ms Chen asked for work after Ms Liu had left because she was concerned that Ms Liu would return. She was jealous of Ms Liu and had accused him of having an affair with Ms Liu. [33] In cross-examination Mr Chang Castillo denied that he showed Ms Chen how to operate the machines in the factory on 5 July 2010. He said Ms Chen had previously helped with packing when the factory first opened as he was studying part-time and working part-time. Ms Chen had also shown him how to work with egg noodles as she had had experience in her family's factory. However, when the fighting had started after their separation, Ms Chen did not assist him in the factory. [34] Mr Chang Castillo denied that Ms Chen had worked in the factory on any of the dates in July 2010. He said that after the Protection Order was issued their relationship was very bad and all she would do was yell at him and ask him for money. He did not employ her. [35] He specifically denied giving Ms Chen $500 for wages and asking her to record that amount into the exercise book. Mr Chang Castillo acknowledged that a book existed but it was lost when the Brisbane City Council closed his factory and told him to clean it up. He said that Mr Singh and another employee had signed the book and agreed that Ms Liu had not. He denied that Mr Singh had asked for a copy of the book. [36] On 14 July 2010 Mr Chang Castillo was packing at the factory in preparation for making a delivery when Ms Chen arrived. He saw her outside. In cross-examination he said that Ms Chen came into the factory and started to scold him. Mr Chang Castillo asked why she was there and told her not to stir things up. Ms Chen followed him outside when he left the factory. Mr Chang Castillo said he did not ask Ms Chen to leave because she would not have left. He left the factory unlocked on his departure. He was in the city making a delivery when he learnt of Ms Chen's accident. [37] Mr Chang Castillo agreed that at the time of the accident he did not have workers' compensation for his employees because he did not understand that he needed to do so. [38] In answer to a question from the Bench, Mr Chang Castillo said that although workers wore a hair net Ms Chen had not done so as she would not know where they were kept or how to put one on. Ms Liu [39] Ms Liu worked at Good Luck Noodle for about four or five months in the first half of 2010. She was not employed there at the time of the accident. [40] Ms Liu worked between three and five days per week usually packing noodles. On occasion Ms Liu also worked at the factory at night. [41] The import of Ms Liu's evidence was that Ms Chen would come to the factory about three to four times a month. Often Ms Chen and Mr Chang Castillo would quarrel. Ms Liu believed the arguments were usually about money as Ms Chen usually left with money. [42] Ms Liu also recalled a time in May when Ms Chen hit Mr Chang Castillo and the police were called. Within a few days Ms Chen told Ms Liu that she no longer had a job. According to Ms Liu, Ms Chen could speak a little Chinese Mandarin and Mr Chang Castillo could also speak some of that language. [43] At no time during her employment did Ms Liu see Ms Chen work at the factory. -- 4 of 7 -- 5 [44] In cross-examination Ms Liu said that she did not complete any forms in relation to her employment with Good Luck Noodle. Her working times were not recorded in a book but on a blackboard. Mr Singh [45] Mr Singh is in Australia on a student visa. He commenced worked at Good Luck Noodle in February 2010 and has been employed there for about 1½ years. He is engaged for 20 hours per week worked over three or four days. Mr Singh is allowed to work more hours during holiday periods. His starting hours vary as he is called in when required. [46] Mr Singh gave evidence that Ms Chen came to the factory many times and often brought lunch for Mr Chang Castillo and herself. They would not sit together to eat it. He also regularly witnessed Ms Chen and Mr Chang Castillo arguing. Mr Chang Castillo told him that the arguments were over money. [47] Mr Singh was at college when Ms Chen was injured. At no time had he seen Ms Chen working in the factory. [48] In cross-examination Mr Singh said that he was paid in cash. The amount he was paid was recorded in an exercise book and he would sign for his pay. He also recorded his working hours in an exercise book. Mr Singh said that he had asked Mr Chang Castillo for the book but he was told that it had been lost. [49] Mr Singh initially agreed to give evidence but on the day he was due to give his evidence he decided that he would not come. His reluctance was based on what Mr Chang Castillo told him about an alleged threat made by Ms Chen against Mr Chang Castillo on 5 December 2010. Consideration and Findings [50] The Appellant bears the onus of proof to establish on the balance of probabilities that she was a worker at the time of the accident. [51] Counsel for the Appellant said that the starting point for the determination should be to ask the question: what was Ms Chen doing in a commercial noodle making factory undertaking a task normally undertaken by an employee if she was not working there. In the submission of the Appellant there is no other plausible explanation. As Counsel for the Appellant submitted it was not put to her that she was there for any other reason. [52] In contrast, Counsel for Q-COMP said that the Commission should not start with the proposition as set out by the Appellant and work backwards. The proper approach is to assess the evidence, particularly in relation to credit of the witnesses and to work forwards from there. [53] I have considered each of these submissions and have decided that the task of the Commission is to assess the evidence to make the required determination as to whether Ms Chen was a worker. To adopt the approach advocated by the Appellant would have the effect of reversing the onus of proof. [54] In this case only Ms Chen provided direct evidence that she worked at the factory. None of the other witnesses called by the Appellant saw her working in the factory. The most that can be taken from their evidence is that Mr Bulow saw Ms Chen in a hairnet, of a type used in food preparation areas, and Ms Chang Castillo went to the factory on a Saturday and was aware that her father gave her mother $500. Against that, Mr Chang Castillo said that he never employed Ms Chen because "she stirred things up too much" and Mr Singh said that he had never seen Ms Chen work in the factory. [55] It is regrettable that details of the acrimonious relationship between Mr Chang Castillo and Ms Chen have had to be related in this decision. However, it was necessary because assessments about the witnesses' credibility are assisted by their testimony on these matters. Credibility is an essential determinant in this matter. [56] The Commission accepts that Mr Bulow, Mr Sitanaporn and Ms Liu were honest, reliable witnesses. Mr Singh has also been accepted by the Commission as a credible witness. Although he was a reluctant witness he nonethess gave evidence despite his concern about the alleged death threat made by Ms Chen against Mr Chang Castillo. Moreover, he was clear in his evidence that he did not need the job but it was the employer who needed him to work. Mr Singh was also annoyed that the book that recorded his time and wages had gone missing. This shows that he was not simply giving evidence to support his employer. [57] In making the assessment of credibility the Commission is cognisant of both Ms Chen and Mr Chang Castillo having a lot riding on the outcome of this case. It is therefore necessary to critically evaluate their evidence. [58] Mr Chang Castillo was certainly less than a model employer at the time of the incident. He did not have workers' compensation insurance and the record-keeping in respect of his employees did not comply with industrial and -- 5 of 7 -- 6 other laws. As much as the Commission cannot condone these practices, Mr Chang Castillo's credibility is not fatally determined by them. In fact Mr Chang Castillo freely made concessions in relation to these matters. [59] The Commission accepts that Mr Chang Castillo had an exercise book into which some employees were required to record (at least) receipt of their wages. This much is attested to by Mr Singh, Mr Chang Castillo and even Ms Chen. The book has gone missing. Counsel for the Appellant paints this as fortuitous submitting that if it was available it would show Ms Chen signed for the $500 as wages. Mr Chang Castillo said that the book had been lost as a result of the clean up ordered by the Brisbane City Council. He would like to be able to produce it because it supported his position. The Commission has reservations about Mr Chang Castillo's explanation and also his denial that Mr Singh had recently asked to see the book. It is almost trite to say that had the book been able to be produced it would have gone a long way to resolve this case. In the absence of the book the Commission must consider the other evidence. [60] The Commission also considers that Mr Chang Castillo's credibility was affected by his statement, contrary to that of Mr Singh who I have accepted as a reliable witness, that Ms Chen brought lunch to the factory in 2010. [61] The Commission notes Mr Chang Castillo's acknowledgement that he asked his daughter to persuade Ms Chen not to pursue this appeal. This concession is to his credit. [62] Ms Chen's credibility is diminished by a number of factors. The Commission accepts that Ms Chen was available for employment in 2010. This is supported by her notebook which records that in November 2009 she had attendances at the job centre and Centrelink. However, the notebook also shows, in my view, that Ms Chen had periods of work in 2010. She could not explain the notations in the notebook of "work" which appeared prior to the July 2010 dates. Various hours are set out and an amount of money shown at the end. One list is undated but after the days of Tuesday, Thursday, Saturday and Sunday, the words "go to work" are written. Another list has a commencement date of 9 February 2010 and shows Tuesday, Thursday, Friday, Saturday and Sunday being ticked with an amount of $500 in the line after Sunday. When the relevant pages are viewed as a whole a reasonable conclusion to draw is that Ms Chen was not telling the truth when she said she had not previously worked. [63] Added to this is her inadequate explanation for the existence of two torn pages when it is apparent on examination of the notebook that only one page could have been torn out. Examination of the two torn pages shows that it is the second page which was removed from the notebook. I do not accept that the first page, headed 6 July 2010, was originally part of the notebook. It begs the question as to why two separate notebooks of the same type would be kept for the same period and why Ms Chen would persist with her answer that both pages came from the same notebook. In this light, the Commission can only draw an adverse inference against Ms Chen. [64] The next matter which counts against the credibility of Ms Chen is her answers to the questions about the patient election form. Firstly, the Commission considers that Ms Chen knew more about the matters being asked on the form than she suggested. The issue of "private" status lends credence to that view. Moreover, even accepting that Ms Chen had assistance in completing the form, the Commission considers that her evidence given in cross-examination about the answer to the question of whether the injury or illness was work related is simply not credible. It was a critical question and Ms Chen obfuscated. [65] Ms Chen's denials about the extent of domestic violence and the Protection Order also impacted on the assessment of her credibility. Both Ms Liu and Mr Singh corroborated Mr Chang Castillo's evidence that Ms Chen regularly abused him at the factory. In addition, Ms Liu confirmed that Ms Chen had struck Mr Chang Castillo with a kitchen implement in the factory. These matters were denied by Ms Chen. The Protection Order also outlines Ms Chen's violence towards Mr Chang Castillo. Much of what led to the granting of the Protection Order was also denied by Ms Chen. [66] In the same vein, Ms Chen's credibility is impeached by contradicting her initial evidence that she had seen the psychiatrist twice and that later amending that to quite a few times in the face of having the many dates of attendance told to her. [67] The evidence about whether Ms Chen had worked in another noodle factory was also unsatisfactory. Not only did she prevaricate about this issue it was also contradicted by Mr Chang Castillo's evidence. [68] For these reasons the Commission does not accept Ms Chen as a reliable witness. Moreover, that when these matters are weighed against those matters affecting the credibility of Mr Chang Castillo, as outlined above, I consider Ms Chen was the less reliable witness. [69] I also consider that given the number of altercations which occurred between Mr Chang Castillo and Ms Chen after their separation that it is unlikely that he would have wanted his estranged wife to work in the factory. I accept his evidence that Ms Chen "stirred" things up in the factory whereas his desire was to have a harmonious workplace. -- 6 of 7 -- 7 [70] The Commission has also placed weight on Mr Singh's evidence that he did not see Ms Chen work in the factory. I appreciate that Mr Singh only worked limited hours each week. However, given the number of hours Ms Chen said she worked and the times that she claimed to have worked, I find it surprising that Ms Singh was not present on any of those occasions. [71] Having considered all of the evidence and submissions I find that Ms Chen has not discharged the onus. The Commission is not satisfied that Ms Chen was a worker within the meaning of s. 11 of the Act. [72] The Appeal is dismissed. The decision of the Review Unit, Q-COMP is confirmed. [73] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2011 December 14 and 15 Released: 3 February 2012 Appearances: Mr J. Morris, Counsel instructed by Murphy Schmidt Lawyers. Mr P.B. Rashleigh, Counsel directly instructed by Q-COMP. -- 7 of 7 --