Workers Compensation Update #4 - Changes to Industrial Deafness Claims

Topic: Changes to Industrial Deafness Claims

1. The Amendments

Significant changes made by the Workers Compensation Legislation Amendment Act 2012 apply to claims for lump sums where a "claim for compensation" was made on or after 19 June 2012.

The meaning of “claim for compensation” is yet to be determined.  There will be no certainty until the issue is clarified by a decision of the President or a Deputy President.

There is a debate as to whether "a claim for compensation" means the lump sum amendments will apply to:

(a) any claim for compensation in respect of a hearing loss injury made on or after 19 June 2012; or

(b) only lump sum claims made on or after 19 June 2012.

If (b) applies, the amendments will apply to all lump sum claims made on or after 19 June 2012, regardless of whether a claim for any other type of compensation (such as hearing aids) was made in respect of the injury before 19 June 2012.

A test case decision is expected within the next few months.  It could be decided either way.

Section 69A of the 1987 Act (which previously set the threshold at 6% binaural hearing loss (3%WPI)), has been repealed.

The new section 66 threshold is 11% WPI (20.5% binaural hearing loss).  No lump sum compensation is payable if a worker has suffered less than 11% WPI, if the claim is subject to the amendments.

2. Further Claims

The new section 66(1A) permits only one claim for permanent impairment compensation in respect of an injury.  However, where industrial deafness is concerned, a worker will still be entitled to make a section 66 claim for further hearing loss.  Such a claim will succeed if the worker is able to establish the further hearing loss has been caused by exposure to further noisy employment in NSW since their previous lump sum claim.

A WPI claim for further hearing loss will be based on a new injury with a new deemed date of injury and will not be eliminated by section 66(1A).

In a section 66 claim for further hearing loss, a worker will have to establish an overall or aggregated assessment of 11% WPI or more, to overcome the new threshold. (See Lauda Enterprises Pty Ltd v Akkanen [2010] NSWWCCPD 91 for how aggregation applies to claims for further hearing loss.)

3. Section 67

Section 67 has been repealed.  There will be no compensation payable for pain and suffering for claims made on or after 19 June 2012 to which the amendments apply.

4. Medical Expenses - Hearing Aids

The medical expenses amendments, (except section 59A), are in force and apply to section 60 expenses claims for treatment or services provided on or after 27 June 2012.

Section 59A is yet to be proclaimed.  The section should apply in the following way:

• Medical expenses (e.g. hearing aids costs) will not be payable more than 12 months after a claim was first made in respect of the injury, unless weekly payments are, or have been, paid.  Further, no medical expenses are payable in respect of "an injury" more than 12 months after a worker ceases to be entitled to weekly payments. 

• Therefore, a worker will not be entitled to the cost of hearing aids, replacement hearing aids and replacement batteries for hearing aids, 12 months after the claim for compensation in respect of the hearing loss injury is made, unless the claim resulted in some weekly payments - in which case the right to further medical expenses will cease 12 months after the last weekly payment was made in respect of the injury.

• Section 59A does not apply to a seriously injured worker (defined as 31% WPI or greater, or at least 61.1% binaural hearing loss).

• Because a claim for further hearing loss caused by subsequent noisy employment represents a new injury, the 12 month period allowed for treatment under s59A will start again from the date of each further hearing loss injury claim.

• For claims for compensation, in respect of a hearing loss injury (or any injury), made before the commencement of the amendment, for the purpose of determining how section 59A will apply, the claim will be deemed to have been made immediately before the commencement of section 59A and the last weekly payment will be deemed to have happened immediately before the commencement of section 59A. 

Section 59A is expected to commence on 1 October 2012. 

5. Tips for Insurers

Procedural considerations for Insurers include:

• Under the current IME Guidelines, before responding to a section 66 claim, an insurer can proceed directly to an IME for any claim for 10% WPI or more.

• If a worker fails to establish 11% WPI on their own medical evidence but they claim the cost of proposed hearing aids based on their medical report, the claim will need to be determined within 21 days under section 279 of the 1998 Act. Once litigated, the Commission will probably refer any claim for proposed hearing aids for a non-binding AMS opinion, under section 60(5) of the 1987 Act.

Insurers should be looking to dispute lump sums claims made on or after 19 June 2012 where:

a) The worker has previously received section 66 lump sum compensation and the evidence suggests there has not been any further noisy employment in NSW or further hearing loss injury since the previous deemed date of injury.

b) There is an acceptable medical assessment of less than 11% WPI.

c) A claim for WPI (further hearing loss) is made, but the overall or aggregated WPI (hearing loss) is less than 11% WPI.

d) Insurers should also dispute any section 67 claim in these matters in case the worker obtains an AMS assessment of 11% WPI or greater.

If the test case decision on the transitional provision favours workers, then the amendments, and the  suggested approaches to lump sums hearing loss claims in (b), (c) and (d) above, will not apply if a claim for some other type of compensation in respect of the same hearing loss injury (eg. a claim for hearing aids) was made before 19 June 2012.