Worker fails in compensation claim for advancing deafness

Worker fails in compensation claim for advancing deafness

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By Rachel O'Connor on 19 April 2018 A worker has lost his claim for boilermaker’s deafness after a tribunal found his impairment had not deteriorated enough to satisfy the test for a new physical injury.

The worker had already made one claim for a 6% loss and then returned to make another claim for a further 3% deterioration in hearing. In issue was whether the worker could make a claim for that further loss. 

Background


During his time working for Challenge Recruitment, Mr Leslie Onody sustained noise-induced hearing loss. 

In 1996, he was compensated just over $8000 for his injury as he had sustained a 6 per cent whole person impairment. He continued to work for Challenge Recruitment which further exacerbated his hearing loss and so he made a further claim in 2015 on the account of a total 9 per cent whole person impairment. 

His condition had deteriorated by 3 per cent. 

Law


Under s 58(7) of the Return to Work Act 2014 (the Act), where a worker has sustained an aggravated or deteriorated injury for which compensation has already been paid, the original payment will be deducted from the final sum. The act provides that this only occurs if the prior disability has not been taken into account to reduce the whole person impairment proportion under the Impairment Assessment Guidelines (‘the Guidelines’).
Under s 22(8)g of the Act, any portion of the whole person impairment due to a previous injury is to be deducted under the Guidelines. 

Arguments of the parties


Mr Onody argued that s 58(7) of the Act should be applied as opposed to s 22(8) g. He provided that under s 58, the prior disability should not be taken into account to reduce the whole person impairment and that he is entitled to around $10,000 in compensation after deducting the original $8000. 
Return to Work then argued that there can only ever be one claim for hearing loss as the whole of the loss has to have ‘occurred immediately before notice of the injury was given’ under s 122 of the Act. Given that Mr Onody already made a prior claim he was precluded from the Act, it was argued.
In the alternative, Return to Work insisted that the prior disability must be taken into account which reduces the whole person rating to 3%, which is not enough of an impairment to satisfy the test for physical injury. 

Judgment


The tribunal found that if there is a new injury that is the result of continued employment which aggravated the hearing loss then a worker is not prevented from seeking further compensation. Return to Work’s first argument failed. 


However, the tribunal found that s58 determines that impairment assessments are to be made pursuant to s22 which is the ‘leading and dominant provision’. A portion of Mr Onody’s hearing loss was due to a previous injury and the tribunal found that according to s 22 that portion had to be deducted from the overall whole person impairment. Mr Onody therefore only had a 3 per cent impairment which did not meet the statutory threshold of 5 per cent. 

Read the judgment


Onody v Return to Work SA
 


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