Making a Hearing Loss claim – a Comprehensive Guide
Noise induced hearing loss is a preventable but irreversible condition which affects many Australian workers. Some 28 – 32% of the Australian workforce is likely to work in environments which exposes them to high levels of noise. This is most common in manufacturing, processing plants, construction and the trades.
The unfortunate reality is that too much noise at work can lead to either temporary or permanent hearing loss or tinnitus (ringing in the ears). Damage usually results from prolonged exposure to nose or exposure to very loud or explosive sounds.
If you have sustained noise induced hearing loss, you may be entitled to receive benefits pursuant to the Return to Work Act 2014. This applies whether you have suffered noise induced hearing loss from a workplace or exacerbated a pre-existing condition. Benefits include medical expenses and a potential lump sum payment.
What is the claim process?
To lodge a claim you simply need to fill out a Return to Work claim form and email or post it to the relevant claims agent. Click here to use an online claims agent lookup to find out the relevant claims agent.
You will also need to provide the claims agent with evidence of your hearing loss ie. an audiogram provided to you by an audiology clinic as well as proof of employment which can be in the form of pay slips or tax returns.
The relevant claims agent will then proceed to investigate and determine the claim. In many cases, a determination is issued within 28 days.
Does retirement or working elsewhere affect my claim?
You can still make a claim if you have retired or even if you are still currently working.
Section 30 of the Return to Work Act provides that all claims are to be made within the prescribed period which is 6 months of the day the entitlement arose. For hearing loss claims, this is usually the date of retirement. However, provided the claim can be made without prejudice to the claims agent and you have a valid reason for not making the claim earlier, you can still make a claim outside the prescribed period.
Multiple noisy employers
If you have been exposed to noise at various employers, the law provides that you can nominate the last noisy employer and the whole of the loss will be deemed to have occurred on that date of the notice of injury ie. against the last noisy employer.
However, the above is subject to any proof to the contrary. This allows the employer to escape liability in the case there is evidence which shows that:
- Your work duties were not capable of contributing to your noise induced hearing loss;
- An earlier noisy employer caused all of your loss;
- Your loss occurred from a non-work related cause; or
- There was a later noisy employer.
Acceptance of your claim
If your claim is accepted, you may be entitled to:
- Medical expenses such as hearing aids funded by the claims agent as well as the cost of repairs or replacement of such aids in the future; and
- Lump sum compensation pursuant to Section 58 of the Act (see below).
Whilst you may already be entitled to receive Government funded hearing aids through Medicare, such aids are typically very basic and do not provide much assistance for many suffering from noise induced hearing loss.
By having your claim accepted, you will be able to receive funding of up to $5,000 towards the cost of high quality hearing aids. Such aids often provide better function and comfort.
Lump sum compensation
If your claim has been accepted and you have reached the minimum threshold of 5% Whole Person Impairment (“WPI”) or greater due to your hearing loss and/or tinnitus, you will become entitled to receive a lump sum payment pursuant to Section 58 of the Act.
You will need to undergo a WPI assessment with an accredited Ear Nose and Throat specialist before you will know if you meet the minimum threshold. The ENT specialist will calculate the percentage loss of hearing attributable by the workplace and disregard non work related factors.
It pays to note that WPI is different to the “percentage loss of hearing” which is often found in audiograms as provided by audiology clinics. Such assessments usually reference Binaural Hearing Impairment (“BHI”) and do not generally take into account age related degeneration. As a guide, 8.8% BHI converts into 5% WPI.
A Section 58 lump sum payment has no bearing on your other entitlements. Also, if you are still employed or have maintained a good relationship with your employer and don’t want to “rock the boat”, it is important to know that your lump sum entitlement will be paid by the claims agent and ordinarily have no financial impact on your employer.
My claim was rejected
If your claim for noise induced hearing loss has been rejected, it is possible to dispute the decision of the claims agent.
This is done by lodging an Application with the SA Employment Tribunal within one month of the decision. The Tribunal will then schedule an Initial Directions Hearing and later a Conciliation Conference. The claims agent will likely be represented by their lawyers at the Tribunal.
The law concerning hearing loss and the Tribunal process can be complicated so it pays to seek legal advice before proceeding. Also, for Tribunal matters, it is possible to recover legal costs for representation from the claims agent.
Crescent Lawyers offer a Free Initial Appointment to provide an honest assessment of your hearing loss claim. Further, there are no legal costs payable unless you receive a lump sum benefit. This applies even if you are only entitled to the cost of hearing aids. For all enquiries please contact the Principal Lawyer Belal Moraby on 8312 7055 or email firstname.lastname@example.org.