Iqbal v Hotel Operation Solutions Pty Ltd

The appeal concerned a determination by a Presidential member of the Personal Injury Commission regarding a claim for workers' compensation. The applicant, Mr. Iqbal, appealed to the Court of Appeal against this determination. The appeal was brought under section 353 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which confers jurisdiction on the Court of Appeal to hear appeals from decisions of the Personal Injury Commission on a question of law.

The primary legal issues before the Court of Appeal were whether the Presidential member erred in law in their assessment of the applicant's burden of proof concerning the absence of a pre-existing injury, and whether the definition of "injury" under the *Workers Compensation Act 1987* (NSW) had been correctly applied. Specifically, the court had to consider if the applicant could shift the onus of proof by merely asserting a lack of evidence for a pre-existing condition, and whether the categorisation of "biological" and "pathological" changes was a valid approach to defining "disease" for the purposes of the Act.

The Court of Appeal found that the applicant bore the onus of proving their entitlement to compensation, which included demonstrating that any injury sustained was employment-related and not exacerbated by a pre-existing condition. The court held that the applicant could not discharge this burden by simply arguing that there was no evidence of a pre-existing injury, nor could they rely on their own evidence to establish the absence of such a condition. Furthermore, the court affirmed that the definition of "disease" in the context of workers' compensation should be interpreted broadly, and rejected the distinction between "biological" and "pathological" changes as a basis for limiting its scope. The court concluded that the Presidential member had erred in law in their approach to these matters.

The Court of Appeal upheld the appeal, set aside the determination of the Presidential member, and remitted the matter to the Personal Injury Commission for redetermination according to law.