On 1 July 2015, the Return to Work Act 2014 (SA) comes into operation. The Return to Work Act is the most significant amendment to workers compensation laws in South Australia in the last 30 years and will replace the Workers Rehabilitation and Compensation Act 1986 (SA).
Hearing loss due to loud workplace
A worker suffering from noise induced hearing loss will retain under the Return to Work Act an entitlement to permanent impairment compensation (non-economic loss). An entitlement to compensation for non-economic loss arises for hearing loss causing at least a 5% whole person impairment.
Under the current law, the WorkCover SA Guidelines for the Evaluation of Permanent Impairment provide the criteria against which whole person impairment is assessed. For hearing loss, whole person impairment is assessed by reference to the percentage noise induced hearing loss between 0% and 100%. For example, noise induced hearing loss of between 6.8% and 8.7% is equivalent to a 4% Whole person impairment, and hearing impairment of between 8.8% and 10.6% is equivalent to a 5% whole person impairment. The criteria to be used under the Return to Work Act have not yet been released. We believe it is reasonable to expect that a similar (or identical) scheme will be adopted meaning that compensation for non economic loss will not be payable for hearing loss unless a worker suffers at least an 8.8% age adjusted noise induced hearing impairment.
The lump sum amounts for non-economic loss are to be prescribed by Regulation. The Return to Work Act prescribes minimum lump sum payments payable for non-economic loss and divides them into ranges 0-4%, 5-9%, 10-29%, 30-49% and 50-100%. The minimum amount of compensation payable at each category is indexed annually.
Medical expenses (including hearing aids)The amount of lump sum compensation for non economic loss may be different after 1 July 2015 compared to entitlements under the Workers Rehabilitation and Compensation Act. For example a worker injured in 2015 suffering a 5% whole person impairment is entitled to $11,800 under the Return to Work Act compared with $12,045 under the Workers Rehabilitation and Compensation Act. For a 30% whole person impairment the entitlement under the Return to Work Act ($117,668) is significantly more than under the Workers Rehabilitation and Compensation Act ($90,331).
Claims for progression/deterioration in noise induced hearing loss appear to have been preserved in the Return to Work Act in provisions relating to a worker who suffers an injury which consists of an aggravation, acceleration, deterioration, exacerbation or recurrence of a prior work injury. Where a worker has previously claimed successfully for noise induced hearing loss and suffered progression in that condition, the Return to Work Act retains provisions from the current law whereby any current entitlement to compensation for non-economic loss is reduced by the amount the worker previously received for permanent impairment. For example, a worker with a 5% whole person impairment who previously received compensation for permanent impairment for hearing loss of $10,000 will have an adjusted entitlement under the Return to Work Act of $1,800.
The percentage noise induced hearing impairment is assessed by an Ears, Nose and Throat (ENT) specialist. The current scheme provides for a limited number of WorkCover SA Accredited ENT specialists to assess permanent impairment arising from a hearing impairment. Although the selection of accredited specialists is changing under the Return to Work Act we believe that ENT specialists currently assessing permanent impairment in hearing loss claims are likely to continue in this role after 1 July 2015.
Under the Return to Work Act a worker suffering at least a 5% whole person impairment also has an entitlement to compensation for economic loss for loss of future earning capacity. Claims for hearing loss (and for psychiatric injury) however are excluded as giving rise to an entitlement to compensation for economic loss.
Medical expenses (including hearing aids)
The Return to Work Act provides that a worker is entitled to compensation for reasonable and necessary medical expenses associated with a work injury. This provision is similar to the current law, but the Return to Work Act represents a higher threshold by importing the additional criteria that the relevant expense also be a necessary expense associated with the work injury.
Under medical expenses provisions a worker may claim the reasonable and necessary cost associated with the provision, maintenance, replacement or repair of a ”therapeutic device”. That term encompasses hearing aids. However, whereas under the current law, the entitlement to the payment of medical expenses is a lifetime entitlement, the Return to Work Act provides that subject to limited exceptions, the entitlement to medical expenses ceases either at the expiration of 12 months after the entitlement to income maintenance ceases or, where there has been no entitlement to income maintenance for the work injury, 12 months after ‘’the designated date’’, which is likely to be the date of commencement of the Return to Work Act on 1 July 2015.
An exception exists for therapeutic appliances ‘’required to maintain the worker’s capacity’’. If hearing aids are accepted as a therapeutic device required to maintain a worker’s capacity then a worker will retain the lifetime payment of hearing aids as provided under the current law. The phrase ‘’required to maintain a worker’s capacity’’ is likely to be the subject of interpretation by the Workers Compensation Tribunal once the Return to Work Act has commenced given the potential for workers to claim lifetime payment of any therapeutic device within the exception.
It is important that workers are aware of the changing entitlements for hearing loss claims under the Return to Work Act. If you would like to speak with a specialist hearing loss lawyer please call Turner Freeman on 8213 1000.