Impairment threshold in hearing loss claims revisited
The recent Court of Appeal decision in Sukkar v Adonis Electrics Pty Limited [2014] NSWCA 459 (determined on 22 December 2014) ruled that Mr Sukkar’s further hearing loss was a new injury within the meaning of section 17(1) of the Workers Compensation Act, 1987 (“1987 Act”).
Background
In this case the claimant had been compensated in respect of 12.9% binaural hearing loss due to a deemed injury in 1996. On 19 June 2012 he made a further claim for impairment compensation under section 66 for further hearing loss. According to his medical evidence he was left with a total of 31.6% binaural hearing loss which equates to 16% WPI. However, after deducting the prior 12.9% hearing loss for which he was compensated in 1996, the claimant was left with a further 18.7% binaural hearing loss equivalent to 9% WPI.
The insurer declined liability on the basis the claimant failed to meet the required threshold of 11% WPI under section 66(1) of the 1987 Act in respect of the further hearing loss injury of 19 June 2012 (deemed). The claimant disagreed stating the further hearing loss injury of 2012 was not a new injury as it involved the same pathology (binaural hearing loss) as the previous injury of 1996 for which he was compensated. He argued it was a single injury arising from separate injurious events and resulted in a single impairment. In other words, the claimant argued the impairments resulting from the 1996 injury and the 2012 injury should be aggregated in assessing permanent impairment for the purposes of the threshold under section 66(1).
Decision by the Court of Appeal
Although the Court of Appeal accepted there was only one single pathology underlying the claimant’s hearing loss, applying section 17(1) of the 1987 Act, the Court ruled the further hearing loss caused by further series of micro-traumata from the previous injury in 1996 to 19 June 2012 (when the further hearing loss claim was made) resulted in a new injury. The Court ruled the further hearing loss was a different injury from the injury in respect of which the claimant was previously compensated in 1996. Although the pathology of both injuries was the same, the Court ruled that under section 17(1) the two injuries were distinct and could not be aggregated.
Therefore, considering the notice of claim for lump sum compensation in respect of the further hearing loss was made on 19 June 2012 (after the lump sum amendments in 2012 came into effect) the Court determined section 66(1) applied. Hence, the claimant failed in his claim for lump sum compensation in respect of the further hearing loss injury of 2012 as he failed to satisfy the threshold of 11% WPI under section 66(1).
What does this mean?
The 11% WPI (20.5% BHL) threshold prescribed by section 66(1) of the 1987 Act applies to all lump sum claims in respect of hearing loss and further hearing loss made on or after 19 June 2012 irrespective of whether the deemed date of injury is before or after 19 June 2012. However, this decision did not deal with or discuss injuries that occurred prior to 1 January 2002.
Deputy President Roche’s decision in BT Australia Limited v Greene [2013] NSWWCCPD 60, determined the amendments introduced in 2012 including the 11% WPI threshold under section 66(1) of the 1987 Act do not apply to claims in respect of an injury including hearing loss and further hearing loss injuries which occurred before 1 January 2002. This decision has not been challenged.
In practice
When a worker makes a claim for hearing loss, it is essential for insurers and employers to ascertain whether or not the worker has been paid lump sum compensation for any hearing loss claims under section 66.
Where a claim for further hearing loss is made in respect of a deemed hearing loss injury on or after 1 January 2002, the insurers should have the worker assessed by an ENT specialist (WorkCover approved assessor) and dispute the section 66 claim, if the increase of hearing impairment is less than 11% WPI.