Salama v Q Catering Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Salama v Q Catering Limited [2009] NSWWCCPD 92
APPELLANT:		George Salama
RESPONDENT:		Q Catering Limited
INSURER:		Allianz Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-8593/08
ARBITRATOR:	Ms J Scott
DATE OF ARBITRATOR’S DECISION:		12 March 2009
DATE OF APPEAL DECISION:		6 August 2009
SUBJECT MATTER OF DECISION:		Industrial deafness claim: whether the worker’s evidence was sufficient to discharge the onus of proving ‘noisy employment’.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:		Maurice Blackburn Pty Ltd
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		1.  The decision of the Arbitrator dated 12 March 2009 is confirmed.
2.  No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 9 April 2009 George Salama (‘the Appellant/Mr Salama’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 12 March 2009.

1. The Respondent to the Appeal is Q Catering Limited (wrongly described as Q Catering Riverside Pty Ltd) (‘the Respondent/Employer’).

1. Mr Salama is presently 52 years old. He commenced employment with the Respondent in 1994 in its catering facility. For the first five years of his employment he worked in the “wash up area” and claimed that he was exposed to noise from the large washing machines. Thereafter, he worked in the transport section. His duties included driving the high-lift truck from the catering facility to the aircraft and back. He claimed that he was exposed to noise from aircraft engines, generator noise and other ‘incidental’ noise such as that of aircraft taking off and landing.

1. He claimed that, as a consequence of his employment, he suffers from industrial deafness within the meaning of section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’). Notice of his claim was given to the Respondent on 12 June 2008.

1. There was no dispute that the Appellant suffered from sensori-neural hearing loss of a type that is due to industrial noise. What was in issue between the parties was whether or not the Respondent was responsible for that loss.

1. On 27 October 2008 the Appellant filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission seeking lump sum compensation and medical expenses pursuant to the provisions of the 1987 Act.  The parties attended a conciliation/arbitration hearing on 27 January 2009 and again on 24 February 2009. The Appellant gave brief oral evidence, and an acoustic expert, Mr Stuart McLachlan, gave extensive evidence recorded in the transcript of 27 January 2009.  Since the claim had not been assessed by an Approved Medical Specialist (‘AMS’) the issue for determination was solely whether or not the Respondent was liable to pay compensation for any hearing loss and any consequential medical expenses.

1. The Arbitrator found in favour of the Respondent on the basis that the Appellant had failed to discharge the onus upon him to prove that the Respondent was a ‘noisy…