Iqbal v Hotel Operations Solutions Pty Ltd - [2024] NSWPICPD 6

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Iqbal v Hotel Operations Solutions Pty Ltd [2024] NSWPICPD 6
APPELLANT:	Mohammed Javed Iqbal
RESPONDENT:	Hotel Operations Solutions Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A2-6359/20
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	5 February 2024
ORDERS MADE ON APPEAL:	1. The Member’s Amended Certificate of Determination dated 27 February 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 32A of the Workers Compensation Act 1987 and clause 2 of Schedule 8 to the Workers Compensation Regulation 2016 – worker with highest needs – worker assessed by a Medical Assessor as having 31% whole person impairment in a Medical Assessment Certificate dated 2 March 2022 – whether the worker was entitled to payment of compensation at the rate applicable to a worker with highest needs prior to the assessment – Hochbaumv RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 distinguished; Meat Carter Pty Ltd v Melides [2020] NSWCA 307 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
The Law Office of Conrad Curry
Respondent:
Ms C Roberts, counsel
Hicksons Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S (AMENDED) DECISION:	27 February 2023

INTRODUCTION AND BACKGROUND

Mr Mohammed Javed Iqbal (the appellant) was employed by Hotel Operations Solutions Pty Ltd (the respondent) as a room attendant from October 2008 until March 2009, and again from 24 August 2009 until 11 October 2010, following which he resigned his employment. After ceasing work, the appellant made a claim for workers compensation in respect of alleged injuries to the cervical spine and lumbar spine that he said resulted from the heavy nature of the work performed for the respondent. He also claimed compensation in respect of a gastrointestinal condition which he asserted resulted from medications taken for his cervical and lumbar injuries, and scarring that resulted from surgery to the cervical spine. He claimed weekly payments of compensation, treatment expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent denied liability for the claim. The appellant commenced proceedings in the former Workers Compensation Commission and the matter proceeded to arbitration. Arbitrator Homan (as she then was) issued a Certificate of Determination dated 24 February 2021, in which she accepted that the appellant suffered an injury to his cervical spine and a consequential gastrointestinal condition that resulted from the cervical injury, as well as scarring. She entered an award for the respondent in respect of the alleged lumbar spine injury. The Arbitrator also observed that the submissions relating to the appellant’s entitlement to weekly payments were not sufficient to permit her to determine that component of the appellant’s claim. With the consent of the parties, she deferred the claim for weekly payments and treatment expenses and remitted the matter to the Registrar for referral to an Approved…

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: [2024] NSWPICPD 6
Decision Date: 5 February 2024

CaseChat Overview and Summary

The case of Iqbal v Hotel Operations Solutions Pty Ltd involved a dispute over workers compensation. The worker, Mr Iqbal, sought compensation for injuries sustained during his employment. The employer, Hotel Operations Solutions Pty Ltd, contested the amount and classification of the compensation owed. The case was heard in the Workers Compensation Court of New South Wales. The central issue was whether Mr Iqbal was entitled to compensation at the rate applicable to a worker with the highest needs prior to a medical assessment that determined his whole person impairment.

The court had to determine if Mr Iqbal qualified as a worker with the highest needs under the Workers Compensation Act 1987 and the Workers Compensation Regulation 2016. The dispute hinged on the interpretation of Section 32A of the Act and clause 2 of Schedule 8 of the Regulations. The court examined previous case law, notably Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113, which provided guidance on the classification of workers with the highest needs. Additionally, the court considered Meat Carter Pty Ltd v Melides [2020] NSWCA 307, which discussed the criteria for determining whole person impairment.

The court found that Mr Iqbal's entitlement to compensation at the highest rate was contingent on his status as a worker with the highest needs prior to the medical assessment. The court ruled that, based on the evidence presented, Mr Iqbal did not meet the criteria for the highest needs classification. Consequently, the employer was not liable to pay compensation at the higher rate. The court's decision was grounded in the statutory definitions and the specific circumstances of Mr Iqbal's case.

The final orders of the court mandated that Hotel Operations Solutions Pty Ltd was not required to pay compensation at the highest rate for Mr Iqbal. Instead, the compensation was to be calculated according to his assessed impairment level of 31%, as determined in the Medical Assessment Certificate dated 2 March 2022.

Orders