The Return to Work Act 2014 provides for claims for compensation or work injuries, including noise induced hearing loss.
While occupations including boilermakers and steel workers might be of obvious examples of workers suffering from noise induced hearing loss, the case of Joan Martin demonstrates that workers with less noisy jobs and even with indirect noise exposure can also succeed in a claim.
Joan Martin worked for Peterson Industries Pty Ltd (Peterson Industries), between 1965 and her retirement at age 65 years, in 1995.
At age 90, Ms Martin made a workers compensation claim for hearing loss seeking payment of hearing aids. The claim was rejected on the basis of a medical opinion that she did not have a noise induced hearing loss.
Ms Martin worked in an office. Between 1965 and the mid-1980s, she worked in an office immediately next to the manufacturing section and separated only by a thin part wooden/part glass wall. She kept the door open so that she could see visitors and receive deliveries. In the mid to late 1980s she moved into a different office. There, she was exposed to machinery all day which produced a loud, constant noise every day and that she had to raise her voice to be heard by others. She said it was a noisy place to work, and noisier at certain times depending on the type of work being performed in the factory.
The Judge accepted Ms Martin was giving evidence truthfully and accurately. He accepted that even when working in the office, the door was usually open and manufacturing noise introduced. Further, that while the noise in Ms Martin’s office was less than in the manufacturing area, the Judge accepted that it was constant and intrusive and caused Ms Martin to talk more loudly than normal in her office and had difficulty listening to others there.
Medical evidence was presented by 2 ear, nose and throat surgeons. The Judge accepted the evidence of Dr Malcolm Baxter, ENT Surgeon, who diagnosed Ms Martin has suffering a hearing loss of mixed cause but of which occupational noise induced hearing loss was a significant factor.
Noting that Ms Martin’s claim was made decades after she ceased employment with Peterson Industries, ReturnToWorkSA submitted that it was prejudiced by the lateness in lodgment of Ms Martin’s claim.
If that submission was successful, then Ms Martin’s claim would fail entirely. The Judge found that Ms Martin became aware of her noise induced loss years in 2016 when she had a consultation with Hearing Australia and consulted medical specialists about her hearing. Having made that finding, the Judge said that Ms Martin’s claim fell outside the prescribed period of six months in Section 30 of the Return to Work Act 2014. However, the Judge found that the onus of proof to show prejudice in determining the claim shifted to ReturnToWorkSA and that it failed to discharge that onus.
Accordingly, the Judge said he was satisfied that Ms Martin’s claim should be accepted.
Turner Freeman has lawyers with particular interest in claims for noise induced hearing loss. If you have been exposed to loud noise in employment, please contact our office on 8213 1000 to discuss a potential claim.
