Millan v Technicolor Pty Ltd

[2012] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Millan v Technicolor Pty Ltd [2012] NSWWCCPD 35
APPELLANT:		Sergio Millan
RESPONDENT:		Technicolor Pty Ltd
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-6305/11
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:		27 March 2012
DATE OF APPEAL DECISION:		29 June 2012
SUBJECT MATTER OF DECISION:		Hearing loss; s 17 of the Workers Compensation Act 1987; expert evidence
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sanford Legal
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		1.     The Arbitrator’s determination of 27 March 2012 is confirmed. 2.     No order as to costs.

BACKGROUND

1. The appellant, Sergio Millan, was employed by the respondent, Technicolor Pty Ltd (Technicolor), as a machine operator. He claims that, as a result of exposure to noise at the respondent’s premises, he suffers from industrial deafness.

2. On 24 February 2012, Mr Millan claimed, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), the sum of $9,625 in respect of a seven per cent whole person impairment as a result of industrial deafness. The deemed date of injury is said to be “November 2008”. The employer’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz) denied liability for the claim.

3. Contrary to the provisions of s 74, it failed to issue the worker with a notice identifying the issues in dispute. Nevertheless, it is common ground that there were two issues in dispute. The first issue was whether the applicant was exposed during the course of his employment with the respondent to noise to the nature of which his injury is due. The second issue was whether the worker had established that his employment with the respondent had the tendencies, characteristics and incidents capable of causing industrial deafness.

4. On 22 July 2011, Mr Millan lodged an Application to Resolve a Dispute in the Commission. His claim was in accordance with the demand referred to above.

5. On 25 August 2011, pursuant to an Application to Admit Late Documents, the respondent filed a Reply. The respondent raised a number of defences to the claim, but only those referred to above are pressed, and they were the only issues in dispute for determination by the Arbitrator.

6. On 24 February 2012, the matter was listed for an arbitration hearing before a Commission Arbitrator. Both parties were represented by counsel. The Arbitrator reserved her decision and a Certificate of Determination accompanied by a Statement of Reasons (Reasons) was issued on 27 March 2012, in which the following findings and orders were made:

   “The Commission determines:

1.     That the applicant did not sustain injury, being industrial deafness, arising out of or in the course of his employment with the respondent.

2.     That there is an award in favour of the respondent.

3.     That there is no order as to costs.”

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act provides:

   “(6)   If the Commission is satisfied that sufficient information…