Prolonged exposure to noise is the most common factor leading to hearing loss in the workplace. The gradual onset of hearing loss is known as industrial deafness and is irreversible. The condition can have a significant impact on your life.
Hearing loss may not be noticeable until many years after exposure to the noise however you may still be entitled to compensation if the hearing loss was acquired as a result of your employment.
Compensation for work-related hearing loss is available in all States and Territories provided eligibility is established and certain thresholds are met.
Compensation is generally based on an assessment of hearing loss calculated as a percentage of ‘impairment’ and may include payments for hearing aids and tests.
Legislation governing compensation for hearing loss shares common themes throughout the States and Territories. There are however differences, particularly in terms of timeframes and thresholds, impairment calculation and dispute processes.
Following is an outline of the claims process in New South Wales which has undergone significant change over the years.
Your lawyer can guide you through this often complex process, explain how a settlement offer is calculated, and ensure you are fairly compensated for your injury.
Am I eligible to make a claim?
To succeed in a claim for hearing loss you will need to prove a history of working in a noisy environment and provide medical evidence verifying your condition and the degree of hearing loss sustained.
As hearing loss can be gradual it may be difficult to determine where and when your hearing loss started, particularly if you have moved from one place of employment to another.
Accordingly, the law determines a ‘deemed date of injury’ for hearing loss and allocates responsibility to only one employer. The reason for this is to facilitate a more streamlined and consistent way of processing claims.
The deemed date of injury will be the last date that the worker was exposed to noise in a workplace or, if the worker is still employed in a noisy environment, then the date the claim is made. Accordingly, the liable employer will be either your current employer if, in that role, you are exposed to noise, or the last employer where you were exposed to noise.
If you have already received compensation for hearing loss and you continue to work in a noisy environment and sustain further hearing impairment, you may be able to make another claim.
How do I make a claim?
Initially, a claim for compensation is made by notifying the employer and or insurer. Generally, this would be done after becoming aware of your hearing loss after visiting your general practitioner and perhaps having hearing tests conducted. This is referred to as the initial notification of injury.
Your employer is required to give you details of its insurer and must also notify the insurer of a claim within 48 hours of it being made.
Once the injury is notified the insurer begins the process of determining liability. A referral is usually made to an Ear Nose and Throat specialist (ENT) who will conduct an audiometric hearing test and prepare a report. The ENT is selected from a list of approved assessors for permanent hearing impairment.
How is my claim assessed?
The report from the ENT will give information about your hearing loss and stipulate the degree of permanent hearing impairment, expressed as a percentage. The report must confirm that your condition has reached ‘maximum medical improvement’. The report will include whether there is any history of hearing loss or conditions (other than work-related) that may have contributed to your hearing loss.
Different thresholds apply in claiming for permanent impairment, depending on when your claim is made. Currently the threshold in New South Wales is 11% Whole Person Impairment which is equivalent to 20.5% binaural hearing loss (both ears combined). Whole Person Impairment is assessed in accordance with the guidelines in place at the time.
Certain occupations (police officers, fire fighters and emergency workers) may be subject to different thresholds and processes.
Settling your claim
If the degree of impairment is agreed between the parties and liability has been accepted, then the insurer should make an offer to settle your claim.
A settlement offer will include details about the history of your injury, the agreed percentage of permanent impairment, any pre-existing conditions that would be taken into account, the material relied upon and how the offer was calculated.
Your lawyer will review the offer and advise whether it is fair and reasonable in the circumstances. If the offer is accepted it is documented in an agreement.
If liability is declined, the insurer fails to make a determination, or if you are dissatisfied with the offer of settlement, then you may be able to have your matter reviewed. Your lawyer will give an opinion on whether it is viable for you to dispute the matter and assist you with this process.
Conclusion
If you suffer hearing loss as a result of your employment, your lawyer can help you to claim compensation and ensure that your rights are protected throughout the process.
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