Noise induced hearing loss is a gradual onset injury. Unlike a physical injury caused by a single trauma such as a fall, there is no single incident which can be identified as the cause of noise induced hearing loss.
A worker’s hearing loss may be caused by noise exposure over many years and with multiple employers. In the ordinary course it would be difficult, if not impossible, for a worker to identify which of their employers caused the hearing loss.
To overcome that difficulty, section 188 of the Return to Work Act 2014 (SA) (the “RTW Act”) artificially deems that all of a worker’s hearing loss arose from the last employment where the worker was exposed to noise capable of causing hearing loss (i.e. the “last noisy employer”). In many cases, the last noisy employer is not necessarily the noisiest employer.
This presumption against the last noisy employer is subject to proof to the contrary, i.e. proof that the employer was not responsible for any of the hearing loss or that the worker was not exposed to noise capable of causing hearing loss in that employment.
In 2018 Mr Carlsen instructed Turner Freeman to lodge a workers compensation claim in relation to his hearing loss. In order to successfully prove Mr Carlsen’s claim, we were required to prove that he suffered from the condition of noise induced hearing loss and that his work with the nominated employer involved exposure to noise capable of causing noise induced hearing loss.
We submitted that Mr Carlsen suffered noise induced hearing loss arising from his employment as a bus driver with Grant’s Coachlines. Over a number of years Mr Carlsen drove various types of buses for Grant’s Coachlines and transported passengers to wineries, weddings and other events. He was exposed to noise from the bus engines and from passengers who would at times be very noisy or play loud music. Mr Carlsen had also, in earlier years, worked in noisier employment, however the presumption under the RTW Act required him to pursue his claim against his most recent noisy employer, not his noisiest employer.
Mr Carlsen’s claim was initially rejected by the insurer on the basis that the work Mr Carlsen was doing (bus driving) was not capable of causing hearing loss. Turner Freeman represented Mr Carlsen in his dispute of the decision in the South Australian Employment Tribunal.
The Tribunal handed down its decision in late 2020 (Carlsen v Return to Work SA  SAET 236). The Tribunal found that Mr Carlsen successfully proved that the noise to which he was exposed at Grant’s Coachlines as a bus driver was capable of causing noise induced hearing loss. The Tribunal found that, it may well be that only a small amount of Mr Carlsen’s noise induced hearing loss arose from his employment with Grant’s Coachlines, but because noise induced hearing loss is treated as a single indivisible injury, the last relevant employer carries the liability for all of the loss.
As a result of the decision, Mr Carlsen won his claim and the insurer’s decision was overturned. Mr Carlsen’s was awarded compensation for hearing aids and he is also entitled to lump sum compensation.
If you have worked in noisy employment, you may have a claim for noise induced hearing loss. We can investigate a potential claim on your behalf on a “no win no fee” basis. If you think you might have a claim, please contact our office on 8213 1000 for advice specific to your circumstances.