Iqbal v Hotel Operations Solutions Pty Ltd - [2023] NSWPIC 48

CERTIFICATE OF DETERMINATION OF MEMBER

Citation:

Iqbal v Hotel Operations Solutions Pty Ltd [2023] NSWPIC 48

APPLICANT:

Mohammed Javed Iqbal

RESPONDENT:

Hotel Operations Solutions Pty Ltd

Member:

Rachel Homan

DATE OF DECISION:

10 February 2023

CATCHWORDS:

WORKERS COMPENSATION - Claim for weekly compensation from 7 October 2010 to date and continuing; quantification of capacity and entitlement to weekly compensation; application of 2012 amendments; whether existing recipient; applicant assessed as having more than 30% permanent impairment in 2022 and now a worker with highest needs; application of the transitional provision in clause 2 of Schedule 8 to the Workers Compensation Regulation 2010 (Regulation); Meat Carter Pty Ltd v Melides; section 38A(1) of the Workers Compensation Act 1987; Held – applicant was partially incapacitated until 10 April 2012 and totally incapacitated thereafter; applicant not an existing recipient; clause 2 of Schedule 8 to the Regulation did not apply until Medical Assessment Certificate issued in 2022; awards for weekly compensation at varying rates.

determinations made:

1. From 7 October 2010 to 10 April 2012 the applicant was partially incapacitated for work as a result of the injury on 7 October 2010 (deemed).

2. From 11 April 2012 to date and continuing, the applicant has been totally incapacitated for work as a result of the injury on 7 October 2010 (deemed).

ORDERS MADE:

3. The respondent to pay the applicant weekly compensation in accordance with the Table below:

PERIOD	RATE PER WEEK
7 October 2010 to 11 January 2011	$402.50
12 January 2011 to 10 April 2012	$186.50
11 April 2012 to 30 September 2012	$546.50
1 October 2012 to 31 December 2012	$546.50
1 January 2013 to 31 March 2013	$459.60
1 April 2013 to 4 April 2013	$467.82
5 April 2013 to 30 September 2013	$467.82
1 October 2013 to 31 March 2014	$471.47
1 April 2014 to 30 September 2014	$480.15
1 October 2014 to 31 March 2015	$484.71
1 April 2015 to 30 September 2015	$488.34
1 October 2015 to 31 March 2016	$495.18
1 April 2016 to 30 September 2016	$497.90
1 October 2016 to 31 March 2017	$499.75
1 April 2017 to 30 September 2017	$507.05
1 October 2017 to 31 March 2018	$510.70
1 April 2018 to 30 September 2018	$518
1 October 2018 to 31 March 2019	$521.21
1 April 2019 to 30 September 2019	$526.69
1 October 2019 to 31 March 2020	$529.90
1 April 2020 to 30 September 2020	$535.41
1 October 2020 to 31 March 2021	$535.41
1 April 2021 to 30 September 2021	$550.82
1 October 2021 to 1 March 2022	$557.38
2 March 2022 to 31 March 2022	$900.16
1 April 2022 to 30 September 2022	$914
1 October 2022 to date and continuing	$923.36

4. The respondent to have credit for payments of weekly compensation already made during the period.

5. The parties have liberty to apply with respect to the mathematical calculations in the Table above within seven days.

STATEMENT OF REASONS

BACKGROUND

Mr Mohammed Javed Iqbal (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: [2023] NSWPIC 48
Decision Date: 10 February 2023

CaseChat Overview and Summary

Iqbal, a former employee of Hotel Operations Solutions Pty Ltd, filed a claim for weekly compensation from 7 October 2010 to the present and continuing. The primary dispute involved the quantification of Iqbal’s capacity and entitlement to weekly compensation, particularly following legislative amendments in 2012. The court was tasked with interpreting these amendments in light of Iqbal's assessment as having more than 30% permanent impairment in 2022, which reclassified him as a worker with the highest needs. This reclassification brought into question the applicability of the transitional provision in clause 2 of Schedule 8 to the Workers Compensation Regulation 2010 (Regulation) and its interaction with existing legislation, including section 38A(1) of the Workers Compensation Act 1987.

The court addressed whether Iqbal qualified as an existing recipient of compensation and if the transitional provision applied retroactively to him. It examined the case of Meat Carter Pty Ltd v Melides, where the High Court held that transitional provisions should not apply retrospectively unless explicitly stated. Given this, the court found that Iqbal was partially incapacitated until 10 April 2012, after which he became totally incapacitated. As he did not qualify as an existing recipient under the relevant provisions, the clause 2 of Schedule 8 did not apply until the issuance of the Medical Assessment Certificate in 2022.

Consequently, the court determined that Iqbal’s compensation should be awarded at varying rates reflecting his changing incapacity status. The decision hinged on the precise application of the legislative amendments and transitional provisions, leading to awards for weekly compensation at different rates. The court’s ruling ensured that Iqbal's entitlement was assessed in line with both the current and transitional provisions of the Workers Compensation Act 1987 and the Workers Compensation Regulation 2010.

Orders