This blog summarises 2 of the recent decision from judgments of the South Australian Employment Tribunal in claims for noise induced hearing loss – Pedlar & RTWSA and Payne & RTWSA.
Pedlar & RTWSA
Mr Pedlar’s dispute concerned a claim for medical expenses arising from his hearing loss.
The case raised an issue as to the workers self employment and employment interstate on provisions of the Return to Work Act 2014 (SA) that deem the whole of a hearing loss to have occurred in the last ‘noisy employment’.
Relevantly, Mr Pedlar’s employment history is:
- Between about 1990 and 2000, as a concreter with BIS in Whyalla, South Australia. It was noisy work.
- For about 6 months in 2000, as a concreter with CIC, in Western Australia. It was similar work to BIS.
- Then, from about 2002 in a concreting business in partnership with his wife, in Whyalla.
Initially, Mr Pedlar made a claim for hearing loss under WA workers compensation arising from his work with CIC, which was rejected.
He then made a claim in South Australia under the Return to Work Act arising from his employment with BIS. The question arose whether BIS was the last employer to expose Mr Pedlar to noise capable of causing noise induced hearing loss (section 188) given the subsequent employment in WA and the self employment in Whyalla.
The Tribunal found there was no progression in Mr Pedlar’s hearing loss since he commenced self employment in 2002. Therefore, Mr Pedlar’s self employment could not be the relevant ‘noisy’ employment for the purposes of section 188.
In any event, the Tribunal found that neither his self employment or interstate employment are “employment” captured by section 188 of the Return to Work Act. As such, the Tribunal found that BIS is the last “employment’ captured by section 188 and that subject to proof to the contrary, the whole of Mr Pedlar’s hearing loss is taken to have occurred in employment with BIS, and that his claim for medical expenses should succeed.
Payne & RTWSA
Mr Payne’s dispute concerned his assessment of lump sum compensation for non economic loss arising from hearing loss.
Mr Payne had 2 specialist assessments during his claim:
- In November 2018, with Dr Hains – 15.5% binaural hearing loss (equivalent to 8% whole person impairment (WPI)); and
- In March 2019, a whole person impairment (WPI) assessment with Dr R Hooper – 22.6% binaural hearing loss (11% WPI).
In assessing Mr Payne’s WPI for work related deafness, Dr Hooper disregarded his own audiogram and instead adopted the percentage of noise deafness from Dr Hains’ audiogram, because the audiogram was closer in time to Mr Payne’s retirement from work and because it showed better hearing loss than his own audiogram. Consequently, Mr Payne’s lump sum compensation was determined based on Dr Hooper’s assessment that the compensable deafness was 15.5% (8% WPI).
Mr Payne disputed the decision arguing that the determination of his entitlements at 8% WPI was incorrect and instead that he should be compensated for an 11% WPI.
The question for the Tribunal was whether Dr Hooper acted in accordance with the RTWSA Impairment Assessment Guidelines in adopting Dr Hains’ audiogram and disregarding his own audiogram. Ultimately, the Tribunal found that Dr Hooper’s assessment was not undertaken in accordance with the Guidelines. The Tribunal noted that Dr Hooper was influenced by a past experience with RTWSA where he ultimately accepted an earlier audiometry, and that in assessing Mr Payne’s percentage of compensable deafness Dr Hooper did not exercise the requisite degree of medical judgment. There were no “cogent or compelling reasons” for Dr Hooper to have departed from his own audiogram. He departed from the audiogram because of extraneous influences.
As such, the Tribunal found that the determination of Mr Payne’s lump sum compensation entitlement, which was based on Dr Hooper’s assessment, should be set aside. Having set aside the insurer’s decision, the Tribunal referred Mr Payne for a further specialist assessment to determine the percentage of his deafness for compensation purposes.
Payne demonstrates the significance of the WPI assessment. It is important that a worker be properly and fully advised prior to agreeing to a WPI assessment.
Turner Freeman has a large and experienced team of experienced industrial deafness compensation claim lawyers. If you have hearing loss and have worked in noisy industry, telephone us on 08 8213 1000 to discuss how we can assist you in making a claim.