Eligibility / compensable injuries

Overview

Hearing loss claims in workers compensation can be as a result of a single trauma or caused by a gradual process. Section 17 of the Workers Compensation Act 1987 (1987 Act) contains special provisions for loss of hearing caused by a gradual process.

This guidance provides information for insurers regarding hearing loss claims including determining injury/date of injury, noisy employment, claims for permanent impairment compensation and claims for hearing aids.

Hearing loss claims

Claims for compensation in respect of hearing loss can represent a significant percentage of total claim numbers for some insurers, particularly those insurers who historically had a large part of their workforce exposed to noisy employment.

While the individual cost of claims tend to be low relative to other claims, the number of claims and the claims handling costs can be significant.

Hearing loss claims generally do not involve a claim for weekly benefits but are claims for permanent impairment lump sum compensation and/or hearing aids. As such, a tailored claims management approach may be appropriate.

Date of injury

Hearing loss can be a personal injury, for example, a measurable hearing loss caused by a single trauma such as an explosion.

In the case of a single trauma, the date of injury is straight forward, and the claim is treated as a normal personal injury subject to the usual requirement for employment to be a substantial contributing factor to the injury.

However, many hearing loss claims are claims for compensation in respect of hearing loss caused by a gradual process. These are sometimes referred to as industrial deafness or boilermaker’s disease claims.

For these claims, the loss or further loss are the result of repeated trauma over an extended period of time.

Section 17 of the 1987 Act operates so that the date of injury for gradual hearing loss is deemed to have happened either on the date the worker gave notice of injury to their employer or, if they are no longer in noisy employment, the last date on which the worker worked in noisy employment.

There is no requirement to prove that the last noisy employer actually caused the hearing loss - only that it was capable of causing hearing loss. The last noisy employer will be liable for the whole of the gradual hearing loss or further hearing loss, with provision for contribution from previous employers who employed the worker in noisy employment in the five years immediately preceding the date of the notice of claim on the employer (see section 17(1)(d) of the 1987 Act).

Noisy employment

The starting point for a worker’s compensation claim for industrial deafness is for the worker to establish that their hearing loss is due to exposure to industrial noise and that the employment was of such a nature (that is, noisy) so as to be capable of causing deafness.

In the case of a dispute, whether hearing loss is due to industrial noise is ultimately a matter for a medical assessor to determine (see Insurer guidance GN 8.4 Medical assessments and appeals for more information).

The Personal Injury Commission may also determine whether the employment was of such a nature (that is, noisy) so as to be capable of causing deafness. However, just because a worker has worked in noisy employment does not necessarily mean that any deafness is due to workplace noise.

Noisy employment will sometimes be established by noise level tests conducted by an acoustic engineer. Noisy employment is often established by the evidence of the worker and appropriate medical evidence. The evidence required to establish noisy employment was discussed in Dawson v Dawson.

Determining injury in hearing loss

Generally, in a worker’s compensation dispute, the question of whether an injury occurred is a legal issue for the Personal Injury Commission (the Commission) to determine. Once determined the worker has suffered an injury, a medical assessor is bound to accept that the injury occurred.

However in hearing loss claims, a medical assessor is required to firstly determine whether a worker has suffered an injury (industrial deafness or other work-related hearing loss) and, if so, what results from the injury (the extent of the hearing loss).

If determined that hearing loss is due to industrial deafness, a medical assessor may independently assess the nature of the hearing loss. For example, if the medical assessor was of the opinion that the hearing loss was due to hereditary factors or other non work-related condition or disease, they are entitled to make that finding in the medical assessment certificate, and assess the worker as suffering a nil impairment due to their employment.

The NSW workers compensation guidelines for the evaluation of permanent impairment (the Permanent impairment guidelines) are used within the NSW workers compensation system to evaluate permanent impairment arising from work-related injuries and diseases. When conducting a permanent impairment assessment in accordance with the Permanent impairment guidelines, assessors are required to use the version current at the time of the assessment.

Permanent impairment compensation

On 19 June 2012, section 66 of the 1987 Act was amended to include a threshold of greater than 10 per cent whole person impairment for permanent impairment compensation.

This threshold applies to all claims made on or after 19 June 2012 (no compensation is payable for a primary psychological injury unless the degree of permanent impairment is at least 15 per cent).

Where a worker had a hearing loss claim prior to 19 June 2012, and makes a claim after that date for a further loss of hearing, it is classified as a discrete injury, and cannot be aggregated with any previous claim to meet the threshold in section 66(1) of the 1987 Act.

The NSW Court of Appeal considered the amendments in respect of hearing loss in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459.

The practical outcome of this is that a larger proportion of hearing loss claims since the 2012 amendments are for reasonably necessary treatment only (eg hearing aids).

Hearing aids - reasonably necessary treatment

Claims for hearing loss will often include a claim for hearing aids as a reasonably necessary medical or related treatment under section 60 of the 1987 Act.

The definition of medical or related treatment in section 59 of the 1987 Act includes artificial aids and curative apparatus. Hearing aids can be considered an artificial aid as they artificially aid the reception of sound and are a mechanical device that acts as curative apparatus by diminishing a person’s impairment.

Whether a hearing aid meets the test of ‘reasonably necessary’ will depend on the facts and circumstances of the individual matter and involves consideration of the medical opinions and evidence as to the usefulness of the aids to the worker. There isn’t a minimum threshold of hearing loss that must be reached in order to satisfy the test of reasonably necessary.

The time limits on the payment of ‘treatment, service or assistance’ contained in section 59A of the 1987 Act do not apply to compensation in respect of the provision of ‘... eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries)’ - see section 59A(6) of the 1987 Act.

The Fees Orders

The Hearing Aid Fees Order is made under section 61(2) of the 1987 Act.

Schedule A of the Order provides for maximum fees for the provision of reasonably necessary medical or related treatment and a hearing aid.

Fees Orders are made annually and are available on the SIRA website.

Some practical considerations in hearing loss claims

Hearing loss claims can present their own particular challenges for insurers including:

• deemed dates of injury dating back years and the challenges in finding accurate information about employment and work practices at the relevant time
• high claims management costs (relative to the overall cost of claim) eg cost of re-opening/managing claims for batteries only
• the cost and time constraints in obtaining medical reports
• litigation costs.

Insurers may wish to consider the following when responding to hearing loss claims:

• the need to carefully consider any Ear, Nose and Throat (ENT) specialist reports provided as part of a claim for hearing loss
• consider any information already known about employment practices at the insured employer, at the relevant time. Having a centralised team to manage hearing loss claims (where there are sufficient claims) can assist with this
• whether an independent medical examination is required
• maintaining proactive communication with the worker to explain what actions the insurer is taking to determine the claim and the next steps.