'Ignorance' explained late notification of injury

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'Ignorance' explained late notification of injury

A worker's second claim for hearing loss has been accepted after a tribunal ruled his late notification of injury was acceptable.

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A worker made a second claim for hearing loss about 14 years after his first claim and five years after retirement. The further claim was accepted as work-related and therefore compensable. Late notifications of injury and of the claim were also found to be acceptable within the statutory framework.

Facts and background


A man was employed by a local council and worked on road maintenance and construction sites for about 29 years. About September 1992, he made a lump sum compensation claim for hearing loss, and in 1993 he accepted an offer by his employer representing a 1.7% binaural hearing loss.

In July 2008, the worker was tested for hearing loss and was told he had suffered 39.7% binaural hearing loss. He retired from employment in March 2013.

In January 2016, the worker’s general practitioner recorded that he had suffered industrial hearing loss. The worker could attest that he had worked in close proximity to noisy road-making machines and also that he did not have any noisy hobbies that could explain his hearing loss. His symptoms included constant ringing in his ears of varying intensity.

The law


In April 2017, the worker made a claim according to the Workers Compensation Act 1987 (NSW) for lump sum compensation and payment of medical expenses including bilateral hearing aids.

His employer declined the claim. It denied that employment was the main contributing factor to the hearing loss, that the impairment exceeded the relevant threshold and that the medical expenses were ‘reasonably necessary as a result of injury’.

The employer also declined the claim on the basis that the worker had failed to give notice and make the claim within the periods prescribed in the Workplace Injury Management and Workers Compensation Act 1998.

The issues


The Workers Compensation Commission of NSW had to determine whether:
  • the worker had sustained an injury as defined by s17 of the 1987 Act and employment had been the main contributing factor to the injury
  • the claim was defeated because of his failure to provide notice of injury within the time prescribed in s254 and to make a claim within the time prescribed in s261 of the 1998 Act
  • the cost of hearing aids were reasonably necessary medical expenses.

Arguments


The worker had not been aware of any obligation to give notice of injury or lodge a claim within a prescribed time. He could not recall the lawyers he dealt with in 1993 telling him about time limits or other conditions for lodging further claims. Neither could he remember being told after undergoing hearing tests in 2008 that his hearing loss was work-related. At that stage he had assumed it would be age-related. It was only after his retirement that he began to pay more attention to his hearing loss.

The 2017 compensation claim had been made after consultation with two ear, nose and throat surgeons who both had been of the opinion that bilateral digital hearing aids would be reasonably necessary in the worker’s case. He had submitted his permanent impairment claim form on 21 April 2017, which was only two months after the first of the two specialists had issued his medico-legal report.

Considerations


Arbitrator Read took noted that the employer had conceded the work environment had a tendency to give rise to a real risk of hearing loss. The man's hearing loss was a gradual process and he had submitted one claim already in 1993. The injury he eventually suffered was one of ‘further loss’, which s17 of the 1987 Act also allowed for. The arbitrator was satisfied that the employment was the main contributing factor to the worker’s further hearing loss.

The arbitrator accepted that the reason for the worker’s failure to give notice of injury within the timeframe specified in the 1998 Act was ignorance, and that in this case it was a satisfactory reason. He also noted that it had been the employer who had asked the worker to undergo hearing tests in 1993 and 2008. From that it could be inferred that the employer had been aware of the potential of a further injury.

Notice of a compensation claim was to be made within six months of an injury or accident, according to s261 of the 1998 Act. Because of the 1993 claim and the 2008 hearing assessment, the employer did not accept that the worker had first become aware of his work-related hearing loss injury when he saw the specialist’s report in February 2017.

However, the arbitrator accepted the worker’s assertion because it had not been explained to him on the earlier occasions that his hearing loss could be work-related. Consequently the arbitrator accepted that the claim had been made within the statutory timeframe.

The arbitrator also accepted the evidence given by the specialists that for someone like the worker, with a history of hearing loss as well as tinnitus, the use of bilateral digital hearing aids was a reasonably necessary treatment.

Decisions


Arbitrator Read remitted the worker’s claim for lump sum compensation to the registrar for referral to an approved medical specialist to assess permanent impairment. He also gave an award for the worker on the claim for medical expenses, including for hearing aids.

The bottom line: In cases of hearing loss, which is likely to have a gradual onset and development, it is understandable there may be delays in giving notice both of injury and of claims.

Read the judgment


Deguara v Fairfield City Council [2018] NSWWCC 181 (31 July 2018)
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