You shouldn’t accept hearing loss as a simple case of getting older when there’s a reasonable chance it was caused by your working environment. TGB lawyer Alexandra Harris explains the process for noise-induced hearing loss compensation claims.
How do I lodge a Claim?
Lodging a claim can be as simple as filling out a ‘Return to Work’ Claim Form and forwarding it to the appropriate insurer. Often, the compensating authority will require ‘proof of employment’ such as tax returns or pay slips to show that the worker was employed where they say the hearing loss occurred.
Once a claim is lodged the Compensating Authority have 28 days to investigate the claim and issue a Determination.
What if I am retired or am working elsewhere?
Section 30 of the Return to Work Act 2014 (SA) prescribes that a claim must be made within six months of the day on which the entitlement to make the claim arises. The ‘relevant date’ (often referred to as the ‘deemed date’) for Noise Induced Hearing Loss is usually the date of retirement.
If a claim is lodged more than 6 months after the date of retirement (as is often the case), the legislation stipulates that if the claim can be determined without prejudice, and the failure to make the claim within the prescribed period was due to ignorance of the claimant, mistake or absence from the State, or another reasonable cause, a claim can still be lodged.
Why should I lodge a Claim?
The benefit of having an accepted claim for Noise Induced Hearing Loss is that reasonable medical expenses such as hearing aids will be funded by the compensating authority.
Most people over the age of 65 are entitled to government funded hearing aids through the Medicare system, however this is typically limited to basic hearing aid models – as opposed to the better quality / further advanced hearing aids that are on the market.
Section 58 Whole Person Impairment Assessment
Another benefit of having an accepted claim for Noise Induced Hearing Loss is an entitlement for a section 58 Whole Person Impairment Assessment.
A lump sum entitlement for non-economic loss pursuant to Section 58 of the Act is a ‘one off’ payment that will have no bearing on a workers claim for compensation or entitlements to other things such as reasonable medical expenses – it will not finalise the claim for Noise Induced Hearing Loss.
An Return to Work SA accredited Ear Nose and Throat Surgeon will need to assess you as having at least a 5% Whole Person Impairment due to your Noise Induced Hearing Loss and/or Tinnitus . If you reach this threshold, then you are entitled to a one-off monetary lump sum payment that corresponds with the deemed date of injury.
It is important to understand that the ‘Whole Person Impairment’ threshold is different to ‘percentage loss of hearing’ which is often referred to by audiologists. This figure will need to be converted to the appropriate percentage and factors such as age related degeneration are taken into account.
For example, a Whole Person Impairment percentage of 6% for a 2008 deemed date of injury will award a worker with $11,424.00. The higher the hearing impairment, the higher the Whole Person Impairment percentage will be, which will award a higher amount of compensation to the worker.
What if I have had several noisy employers?
The recent decision of the Full Bench in Return to Work SA (Luna and Valk Pty Ltd) v Mitchell  SAET 28 held that the worker can nominate the last noisy employer and the whole of the loss will be deemed to have occurred on the date of the notice of the injury.
The qualification ‘subject to any proof to the contrary’ enables the nominated last noisy employer to escape liability in the following ways:
- The work that the worker was performing was not capable of contributing to the NIHL;
- An earlier noisy employer(s) has caused all of the NIHL;
- The whole of the NIHL has resulted from a non‐work related cause;
- There was a later noisy employer.
What if my claim is rejected?
If your claim for noise induced hearing loss is rejected you can lodge an appeal with the SA Employment Tribunal. No matter the stage you are at with your claim, the law surrounding hearing loss claims is complex and rarely straight-forward. Because of this it is best to speak with a lawyer who can guide on what is your best chance at success. TGB Lawyers are very experienced in handling hearing loss claims. Call us on (08) 8212 1077 (SA), (08) 9211 5800 (WA), (08)8971 7814 (NT) or 1800 730 842, or register your details here and we’ll be in touch with you soon.