Unilever Australia Limited v Saab

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Appeal to the Court of Appeal dismissed - Unilever Australia Ltd v Saab [2013] NSWCA 374
CITATION:		Unilever Australia Limited v Saab [2013] NSWWCCPD 2
APPELLANT:		Unilever Australia Limited
RESPONDENT:		Ali Saab
INSURER:		Unilever Australia Limited
FILE NUMBER:		A1-5805/11
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:		30 October 2012
DATE OF APPEAL DECISION:		14 January 2013
SUBJECT MATTER OF DECISION:		Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal against an interlocutory decision; s 261 of the Workplace Injury Management and Workers Compensation Act 1998; requirements as to making of claim; determination of date of first awareness of relevant injury.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Astridge & Murray
Respondent:	Koutzoumis Lawyers
ORDERS MADE ON APPEAL:		1. Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to appeal the Arbitrator’s decision made on 30 October 2012. 2.   The Arbitrator’s determinations and order made in the Certificate of Determination dated 30 October 2012 are confirmed. 3.   The appellant is to pay Mr Saab’s costs of the appeal regardless of the outcome of the primary application before the Arbitrator.

BACKGROUND

1. This appeal concerns a challenge to an Arbitrator’s finding that a worker, Mr Ali Saab, had satisfied the requirements concerning making of claim as prescribed by the provisions of s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

2. Mr Saab had been employed by Unilever Australia Limited (the appellant) between 1968 and 1998. His claim against the appellant was made on 7 August 2009 in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). The injury alleged was a loss, or further loss, of hearing which was of such a nature as to be caused by a gradual process within the meaning of s 17 of the 1987 Act. It was agreed that, should noisy employment be proven, the deemed date of injury was 29 May 1998 (s 17(1)(a)(ii) of the 1987 Act).

3. It is relevant to note that Mr Saab’s claim is one of approximately 50 disputed claims presently before the Commission which have been brought by former employees of the appellant in respect of alleged work related hearing loss.

4. Those claims (related claims) have been the subject of case management by the Commission. Each worker is represented by the one solicitor and counsel and the appellant has retained the one solicitor and counsel to advise and appear in each matter.

5. It is acknowledged by the parties that the present matter and a number of other related matters each raise issues concerning notice of injury and making of claim which were common to the related claims generally. It was suggested that determination of those issues might lead to the elimination of some issues in dispute and…