Causes of hearing loss
Workers employed in heavy industry or other noisy workplaces frequently develop industrial deafness (or boilermaker’s deafness, in the old terminology). Repeated and prolonged exposure to loud noise in the workplace can cause loss of hearing.
Due to the nature of industrial deafness and its gradual onset, many workers do not appreciate that they have sustained a loss of hearing due to their noisy working conditions. It is often not until well after the noisy employment has ceased, and often well after retirement, that a worker’s hearing is tested, hearing loss identified and then questions asked about entitlements to compensation.
Workers who have industrial deafness may have an entitlement to the provision of hearing aids and lump sum compensation. They must, however, often overcome the fact that their claim is being brought well after their employment has ceased.
Section 261 of the Workplace Injury Management & Workers Compensation Act 1998 provides that a claim for compensation must be made within six months of the time the injury occurred. Section 261 is an awkward provision in its application to claims for industrial deafness because hearing loss is cumulative, that is, it occurs over the period of the exposure to workplace noise. In the case of some workers that may span a period of some 40 years or more.
Section 17 of the Workers Compensation Act 1987 deems, in most cases, a workers hearing loss to have occurred on the last date in which they worked in noisy conditions. That still presents a difficulty to many workers. For example, many steel workers in the Newcastle region were retrenched from the BHP Steelworks in 1999. Our firm regularly makes claims for workers who have not engaged in noisy or any work since that time. Section 17 deems their injury to have occurred in 1999 upon their retrenchment and s261 provides, at face value, that they are well out of time.
Workers are excused in a sense from the requirements of s261 if they are not aware of the injury at the time it occurred. S261(6) provides that,
“If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
There has been a significant amount of litigation in the Workers Compensation Commission and up to the NSW Court of Appeal concerning precisely how and when a worker becomes aware of an injury where the injury is alleged to be industrial deafness. The leading authority on awareness is Unilever Australia Limited –v- Petrevska  NSWCA373 (11 November 2013). In that case, Macfarlane JA held at paragraph 25,
“While the worker may well have, as did Mrs Petrevska, an opinion or belief that the hearing loss is related to the worker’s employment this is not sufficient. The high level of assurance required for “awareness” of its correctness will ordinarily require expert advice. There is some analogy to an issue concerning the value of a lay person’s admission of a conclusion that requires expertise to reach.”
Similarly, and perhaps more generously Tobias AJA held at paragraph 43,
“ Knowledge of symptoms is insufficient as the sub-section requires awareness of the injury and its cause as matters of fact. Although deafness is itself an injury it can be one of gradual onset and was in the present cases. More importantly, gradual loss of hearing is sensorineural. It was therefore necessary in the present case for the respondent to have knowledge as a fact that her deafness was work induced. The difficulty with sensorineural deafness is that it may be due to a number of causes including those which are not so induced. It was insufficient for the respondent to believe that her condition was noise induced due to the possibility of that not being the cause of her type of deafness. Accordingly, in order for the respondent to be aware (or have knowledge) of the fact that her deafness was noise induced, it was necessary for her to obtain specialist advice and until that advice was obtained and confirmed that the condition arose out of her employment, she could not be aware of her injury within the meaning of s 261(6).
In other words, the worker must be aware that they have sustained a hearing loss and that hearing loss is attributable to their noisy work. Generally speaking, a worker will not be so aware until his or her hearing has been tested by an audiologist, a hearing loss identified and an opinion provided from either an audiologist, general medical practitioner ear or nose and throat surgeon that the hearing loss results from exposure to noise in the workplace.
Workers will often have a suspicion that they have industrial deafness but that does not disentitle them from making a claim. On one reading of Petreveska, a worker cannot form that opinion on their own.
The writer recalls one worker, when asked when he first became aware of his hearing loss (at this point having been tested by an audiologist, examined by an ear nose and throat surgeon and advised by both as to the degree and cause of his hearing loss):
“I’m not deaf, I don’t have hearing loss. My wife and daughter complain I do not hear them and that is why I am here.”
He gave that evidence at the hearing of his case which was ultimately successful.
If you consider that you have sustained a loss of hearing and have worked within a noisy workplace, even long ago, you should contact our personal injury lawyers. You might have a claim for industrial deafness.