Mezrani v Idameneo (No 789) Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Mezrani v Idameneo (No 789) Ltd [2013] NSWWCCPD 21
APPELLANT:		Frank Mezrani
RESPONDENT:		Idameneo (No 789) Limited
INSURER:		Idameneo (No 789) Limited
FILE NUMBER:		A1-4698/12
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:		27 November 2012
DATE OF APPEAL DECISION:		22 April 2013
SUBJECT MATTER OF DECISION:		Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; admission of fresh or additional evidence on appeal; s 261(4) of the Workplace Injury Management and Workers Compensation Act 1998; excuse for failure to make claim within time prescribed; s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998; first awareness of injury.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sanford Legal
Respondent:	Astridge & Murray Lawyers
ORDERS MADE ON APPEAL:		1.   The determination of the Arbitrator as found in Certificate of Determination dated 27 November 2012 is confirmed. 2.   No order in respect of costs of this appeal.

BACKGROUND

1. Mr Frank Mezrani claimed entitlement to compensation against his former employer Idameneo (No 789) Limited (the respondent) in respect of injury, being noise induced hearing loss. He alleged that his employment with the respondent as a delivery driver between 1984 and 1997 was employment to the nature of which his injury was due, within the meaning of s 17 of the Workers Compensation Act 1987 (the 1987 Act). He had been exposed to aircraft noise on a regular basis when performing his duties at Sydney Airport between 1984 and 1990 and thereafter at Bankstown Airport up until 1997.

2. As found by Arbitrator Kerry Haddock (at [14] of the her Reasons (Reasons)) s 17(1)(a)(ii) of the 1987 Act deems Mr Mezrani’s injury to have happened in or about 1997. Having regard to the issues raised, and Mr Mezrani’s application to adduce fresh evidence on this appeal, it is appropriate, at this point, to record events both prior to and at the hearing before the Arbitrator, as well as those non-contentious matters which were supported by the evidence then before the Commission.

3. A statement by Mr Mezrani dated 24 October 2012 includes the following:

   “In or about 2010, I had an appointment for a hearing test at the Australian Hearing Clinic in Bankstown. My daughter, Jackie Mezrani, attended the appointment with me. At that appointment, after conducting an audiology test, I was advised that I had significant hearing loss, much of which may be attributed to exposure to noise.

   I was asked numerous questions about exposure to noise during the course of my employment and any other exposure to noise during any other social, recreational or other activities. I gave the Audiologist a history of my exposure to noise during my employment with the Respondent at Bankstown Airport.

   The Audiologist advised me that I may have a claim for workers compensation benefits as the hearing loss may have been caused by my exposure to noise during the employment with…