Approximately one in seven people in Australia suffer from hearing loss.[1] Loss of hearing can have a significant effect on a person’s social and emotional wellbeing. Our clients often complain of feeling unable to attend social events, because of the humiliation of constantly asking family and friends to repeat themselves. Many clients say their family becomes frustrated when they cannot hear them. Some people also suffer from a constant ringing in their ears, which can disturb their sleep patterns and effect their overall quality of life. This is known as tinnitus.
There are many causes of hearing loss, including age, genetics, diseases/disorders, physical trauma and exposure to loud noise.[2] If you have worked in a noisy environment and are suffering from hearing loss, some of that hearing loss may be attributable to noise exposure in your workplace. If that is the case, you may be entitled to make a workers compensation claim for industrial deafness.
At Turner Freeman Lawyers, we understand that making a claim may feel daunting and overwhelming, and we aim to make the process as simple as possible for you. This article aims to answer the most common questions we get from our clients when they are deciding whether to make a claim.
Where do I start?
The first step is to obtain legal advice about whether you are entitled to make an industrial deafness claim and what the process involves. If you wish to obtain advice about making a claim, you can give us a call on 13 43 63.
You will eventually need to attend an appointment with an Ear, Nose and Throat (ENT) specialist, who will assess your level of work-related hearing loss.
If I make a claim, what might I be entitled to receive?
Your entitlements under the NSW workers compensation legislation depends on a number of factors, including your level of hearing loss, the date you last worked in noisy employment, and the industry in which you were/are employed.
Generally speaking, you will be entitled to make a claim for hearing aids where they are considered reasonably necessary as a result of your injury. When assessing whether hearing aids are reasonably necessary, a number of factors are taken into account, including but not limited to:
- the appropriateness of the treatment;
- the effectiveness of the treatment;
- the availability/effectiveness of any alternative treatment;
- the cost of the treatment; and
- the acceptance by medical experts of the treatment being appropriate/effective.[3]
Some workers may also be entitled to make a claim for lump sum compensation. Most workers in NSW must meet a threshold of 11% whole person impairment (‘WPI’) – equating to 20.5% binaural hearing loss – before being entitled to claim for a lump sum.
However, for some categories of workers, such as those who last worked in noisy employment before 1 January 2002, coal miners, and some paramedics, fire fighters and police officers, the threshold is only 6% binaural hearing loss. The amount of compensation you are entitled to depends on your level of hearing loss.
Speak to one of our experienced workers compensation lawyers for advice specific to your circumstances.
What happens after I make a claim?
The insurer can choose to accept or deny your claim. If it accepts your claim – fantastic! You can arrange an appointment to have your hearing aids fitted and you will receive your compensation.
If the insurer denies your claim, you can challenge the decision in the Worker’s Compensation Commission.
Sometimes, the insurer will make an offer. If that is the case, you can choose to accept the offer or proceed to the Commission.
I have worked in noisy industry for most of my working life – which employer is liable?
In NSW, claims for industrial deafness must be made against the last ‘noisy’ employer. The legal test for determining whether an employer is ‘noisy’ is whether the incidences, tendencies and characteristics of the employment give rise to a real risk of industrial deafness.[4]
If you are still working in a noisy environment, the claim must be made against your current employer.
It does not matter whether you worked for your last noisy employer for one day or 40 years – if it meets the legal test, that employer will be liable. It also does not matter whether they were the noisiest employer; they just have to be the last noisy employer.
How much will it cost for me ask a lawyer to make a claim on my behalf?
We have solicitors at our firm who are approved lawyers with the Worker’s Compensation Independent Review Office (WIRO). WIRO is a state government body that provides funding for injured workers to obtain legal representation. Most of our client’s receive a grant of funding from WIRO and do not need to pay legal fees or associated costs of a claim.
For a limited number of other industries, the insurer will pay your legal fees if you are successful.
If you think you have hearing loss that might have been caused by work, contact Turner Freeman Lawyers today to find out more.
[1] Hearing Care Industry Association 2020, Hearing for Life – The value of hearing services for vulnerable Australians (Report, March 2020) iii.
[2] Hearing Care Industry Association 2020, Hearing for Life – The value of hearing services for vulnerable Australians (Report, March 2020) 7.
[3] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32; Diab v NRMA Ltd [2014] NSWWCCPD 72.
[4] Blayney Shire Council v Lobley & another (1995) 12 NSWCCR 52; applied in Dawson & Ors t/a The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 [33].