GN 2.6 Hearing loss claims

Published: 12 August 2019
Last edited: 12 August 2019

Application: This guidance applies in part to exempt workers

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. There is both an injurious incident and a sudden identifiable pathological change.

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, most 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. Determining a single date of injury is therefore, not practicable.

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.

While the date is artificial, it provides certainty and a practical way to deal with a claim for compensation under the workers compensation legislation in NSW.

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 an approved medical specialist to determine (see Insurer guidance GN 8.4 Medical assessments and appeals for more information).

Whether the employment was of such a nature (that is, noisy) so as to be capable of causing deafness is for an arbitrator to determine. 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. It is more common that   noisy employment will be established by the evidence of the worker and appropriate medical evidence. The evidence required to establish noisy employment was discussed in Dawson v Dawson.

Dawson and others trading as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35

The worker in this matter was 70 years old at the time of the decision. He had worked for the employer as a cane harvester/operator from 1980 to 1985.

The appeal concerned whether the worker’s duties were duties that constituted ‘noisy employment’ within the meaning of section 17 of the 1987 Act (employment to the nature of which the condition of boilermaker’s deafness or deafness of like origin is due). In considering the evidence required to establish ‘noisy employment’, Roche DP stated:

The preferred method of proving noisy employment is to call an acoustics expert to give evidence as to the level of noise to which the worker was exposed, over what period, and an expert as to whether that exposure involved a real risk of boilermaker’s deafness. I acknowledge, however, that it is not always possible to call such evidence, especially if the employer has ceased business or changed its equipment or method of operation.

[at para 40]

He went on to say:

Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say “my employment was noisy and I have boilermaker’s deafness”. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the “tendency, incidents or characteristics” of that employment are such as to give rise to a real risk of boilermaker’s deafness.

[at para 44]

Determining injury in hearing loss

Generally, in a worker’s compensation dispute, the question of whether an injury occurred is a legal issue for an arbitrator in the Workers Compensation Commission (the Commission) to determine. Once the arbitrator has determined the worker has suffered an injury, an approved medical specialist is bound to accept that the injury occurred. However, hearing loss is treated differently.

An approved medical specialist 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 an arbitrator determines that hearing loss is due to industrial deafness, an approved medical specialist may independently assess the nature of the hearing loss. For example, if the approved medical specialist 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 made under section 376 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

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 (that is, a minimum of 11 per cent).

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).

Note: The greater than 10 per cent threshold for permanent impairment compensation in hearing loss claims does not apply to exempt workers.

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.

Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459

The worker worked as an electrician in noisy employment from about 1996. He brought a claim for hearing loss with a deemed date of injury of August 1996 and was paid permanent impairment compensation of $11,093.35. The registration of agreement recorded he suffered 12.9 per cent binaural hearing loss.

On 19 June 2012, he served a letter of demand on his employer claiming additional hearing loss. After adjustment for the prior claim, the additional hearing loss equated to nine per cent whole person impairment (WPI).

The insurer rejected the claim on the basis that the WPI claimed did not meet the threshold of ‘greater than 10 per cent’ in section 66(1) of the 1987 Act.

The Court of Appeal held that a claim for ‘further’ loss of hearing under section 17 of the 1987 Act is a new injury, and in the case of Mr Sukkar, the date of injury was deemed to be 19 June 2012, being the date of notification. It was not the same injury as the 1996 hearing loss.

Thus, the injury was subject to the 2012 legislative amendments and pursuant to section 66(1) of the 1987 Act, his impairment had to be greater than 10 per cent WPI in order to get further lump sum compensation.

The practical outcome of this is that a larger proportion of hearing loss claims since the 2012 amendments are for reasonably necessary treatment only - that is, for 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 or even decades 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. For example, it is not unusual for an insurer to be served with a large number of hearing loss claims at the same time
  • 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 sufficent claims) can assist with this
  • whether an independent medical examination of the worker by the insurer is warranted having regard to all the facts and circumstances
  • maintaining proactive communication with the worker to explain what actions the insurer is taking to determine the claim and the next steps.
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