• Claim made by worker for deterioration in noise related deafness and who earlier received a lump sum payment for non economic loss for that injury
  • Return to Work Act 2014, section 22 and 58
  • On application of the 5% impairment threshold for section 58 compensation, is the pre-existing noise related deafness to be deducted from the current noise related deafness?

Mr Onody made a successful workers compensation claim for noise induced loss (NIHL) in 1996. He received compensation for a 6% whole person impairment (WPI), in the amount of $8,310.60.

He continued working in noisy work, and made another claim in 2015. His hearing loss was assessed by an ear, noise and throat specialist as 9% WPI. Section 58 of the Return to Work Act 2014 (RTW Act) provides for non economic loss compensation for a 5% or more WPI. Mr Onody sought compensation for a 9% WPI, in the amount fixed by the workers compensation Regulations for that impairment, of $18,756.00.

ReturnToWorkSA (RTWSA) determined that Mr Onody’s impairment for his deterioration in noise related deafness was 3% WPI (9% WPI less 6% WPI), and because the impairment did not meet the 5% WPI it determined Mr Onody had no section 58 entitlement.

Mr Onody filed a dispute in the SA Employment Tribunal. He argued that he was entitled to compensation for a 9% WPI less the amount of earlier compensation paid ($18,756.00 less $8,310.60, being $10,843.00).  The dispute arises on interpretation of provisions in RTW Act governing WPI assessments (section 22) and WPI compensation (section 58), and the Impairment Assessment Guidelines for injuries which are an aggravation, exacerbation, deterioration or recurrence of a prior (work) injury . The Full Bench of the Tribunal held in favour RTWSA, finding that:

  1. The deterioration in Mr Onody’s hearing loss since 1996 constituted an ‘injury’; and
  2. For section 58 compensation, the deterioration/injury had to reach 5% or more WPI. The deterioration in NIHL was 3% WPI. Accordingly, the Full Tribunal found Mr Onody was not entitled to section 58 compensation.

Dissatisfied with the result, Mr Onody applied for, and was granted, leave to appeal the decision in the Full Court of the Supreme Court of South Australia. The issue for determination was whether or not the Tribunal was correct in holding that Mr Onody had to reach 5% WPI for his deterioration/injury. By majority judgement (2-1), the Full Court held in favour of Mr Onody, finding that:

For section 58 compensation, the gross hearing loss impairment [9% WPI] is to be used, and the amount of non economic loss compensation paid is to be deducted [from the entitlement payable for a 9% WPI].

The case is a win for workers. It means that a worker will have an entitlement to compensation for non economic loss for a deterioration in noise related hearing loss as long as the overall noise deafness is 5% WPI, including any pre existing noise deafness. Compensation is calculated as the current monetary entitlement based on the WPI less the amount previously paid for non economic loss.

Contact Turner Freeman’s experienced lawyers for a no obligation assessment of your hearing loss claim.