Iqbal v Hotel Operations Solutions Pty Ltd - [2021] NSWPICPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40
APPELLANT:	Mohammed Javed Iqbal
RESPONDENT:	Hotel Operations Solutions Pty Ltd
INSURER:	AAI Ltd trading as GIO
FILE NUMBER:	A1-6359/20
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	15 November 2021
ORDERS MADE ON APPEAL:	1. The appellant’s application to admit fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. The Arbitrator’s Certificate of Determination dated 24 February 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – fresh or additional evidence; findings of ‘injury’ pursuant to subclauses (i) and (ii) of section 4(b) of the Workers Compensation Act 1987; alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and associated authorities
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Mr T Grimes, counsel
Hicksons Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	24 February 2021

INTRODUCTION AND BACKGROUND

Mohammed Javed Iqbal (the appellant) migrated to Australia in 2006. He worked in Australia as a room attendant, initially with another company from May 2006 to May 2008, and then with Hotel Solutions Pty Ltd (the respondent) from October 2008. He attended varying hotels depending on a roster, and he was required to clean and make up hotel rooms. He collected rubbish, made up beds, replenished tea and coffee provisions and cleaned bathrooms. He said there was pressure to work quickly. There was a break in his employment from March to August 2009 when he returned temporarily to Bangladesh. He resumed his employment with the respondent from 24 August 2009.[1]
[1] Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWWCC 61 (reasons), [22]–[26].
The appellant experienced stiffness in the right ring and index fingers in May 2010, for which he saw a general practitioner. On 7 October 2010, pain radiated from his fingertips to his right hand, together with pins and needles from the right side of his neck down to his fingers. He saw his general practitioner. On 11 October 2010, he reported his difficulties to his supervisor, said his general practitioner had told him to find a more suitable job, and resigned. The appellant had been a qualified medical practitioner in Bangladesh and he wished to work as a general practitioner in Australia. He spent about one and a half years studying for the Australian Medical Council clinical examination and also applied to hospitals for positions without success. He sat the relevant examination in March 2011 without success.[2]
[2] Reasons, [29]–[32].
In April 2012, following x-rays of the right hand which were reported as normal, the appellant was referred for a CT scan of his neck, which showed multiple cervical disc protrusions with cord compression. On 12 June 2012, Dr Maniam (to whom the appellant was referred…

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: [2021] NSWPICPD 40
Decision Date: 15 November 2021

CaseChat Overview and Summary

Iqbal has brought an appeal against Hotel Operations Solutions Pty Ltd, seeking to overturn a decision of the Workers Compensation Regulator which rejected his claim for workers compensation. The dispute revolves around whether the Regulator erred in law by not considering fresh evidence provided by Iqbal regarding the nature and cause of his alleged injury. The case was heard in the New South Wales Civil and Administrative Tribunal (NCAT).

The primary legal issues before the Tribunal were whether the Regulator was required to consider fresh evidence that was not presented at the initial hearing, and if so, whether such evidence would have led to a different outcome in the assessment of Iqbal's claim. The Tribunal also needed to determine whether the Regulator had made any factual errors in assessing Iqbal's injury and whether these errors warranted a reconsideration of the decision.

The Tribunal found that under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, the Regulator has a discretion to consider fresh or additional evidence. However, the Tribunal noted that such discretion is not absolute and must be exercised in accordance with the principles of natural justice. The Tribunal further held that the Regulator did not make any factual errors in its assessment of Iqbal's injury, and that the fresh evidence would not have led to a different outcome. The Tribunal relied on the decision of Raulston v Toll Pty Ltd and associated authorities in reaching its decision.

The Tribunal dismissed the appeal and upheld the Regulator's decision. It was ordered that Iqbal's claim for workers compensation be dismissed in its entirety.

Orders