Falling on Deaf Ears:  Medical Expenses for a Hearing Loss Injury

Holcim (Australia) Pty Ltd v Thomas [2022] NSWCA 183

The Respondent, Stephan Thomas, was employed by the Appellant, Holcim (Australia) Pty Ltd and sustained a workplace hearing loss injury.  In 1999 he received lump sum compensation in respect of 14.8% binaural hearing loss.

He continued to work for the Appellant until 2009.  He subsequently commenced employment with ACI Operations as a Factory Worker where he was also exposed to loud noise.  In 2010 and 2016 he claimed the cost of hearing aids and this was paid for by the Appellant.  In August 2020 the Respondent was assessed to have 21% binaural hearing loss and on 14 September 2020 his claim for further hearing aids was disputed on the basis that the Appellant was not his last noisy employer.

The Respondent commenced proceedings in the Personal Injury Commission (PIC) and the Appellant was found liable to pay for the new hearing aids.  The matter was heard by Senior Member Capel who determined that the Applicant had sustained a sensorineural hearing loss injury in the course of his employment with the Appellant and that the Appellant was the last employer who had employed the Applicant in employment to which the injury was due for the purposes of section 17(1)(a)(i) of the Workers Compensation Act 1987 (“the WCA”).  He concluded that the provision of bilateral digital hearing aids was reasonably necessary as a consequence of this injury. This decision was upheld by Deputy President Wood on appeal.  The Appellant then sought leave to appeal to the Court of Appeal.

Issues for determination

The Appellant submitted that the questions relevant to the Appeal were as follows:

• Whether upon the true construction of the legislation a limited injury deemed to occur in 1999 can operate to enable recovery of medical expense in 2020 in the presence of a significant increase in the hearing loss and subsequent work in employment to the nature of which industrial deafness is due; and
• Whether upon its true construction section 17(3) of the WCA applies when the factual elements of a further and more substantial injury have supervened after the giving of notice of injury thereby completing the existence of a deemed injury.

The Respondent submitted that if leave for Appeal was granted, the question for determination was:

• Whether in the circumstances where a worker has served notice on his then employer under section 17(1) of the WCA and has satisfied the tests under section 60 of the WCA for the provision of hearing aids, the liability to pay for the hearing aids imposed on that employer ceases if the worker engages in further employment which aggravates the hearing loss.

Decision

The Court of Appeal refused to grant leave to Appeal.

JA White noted that the provisions of section 17 of the WCA operated so that the injury of loss of hearing or further loss of hearing was deemed to have happened at the time notice of the injury was given by the worker to his employer.  He noted that provided that the worker had been employed in employment “to the nature of which the injury was due” at the time of the giving of notice, that employer would be liable notwithstanding that the worker’s loss of hearing may have been attributable to multiple noisy employments.

JA White noted that it was the Appellant’s position that if the Respondent had given notice of his injury to ACI Operations, the later employer would have been liable for the cost of new hearing aids.  The Appellant submitted that section 17 should not be construed in such a way that a worker’s decision of whether or not to give notice of injury would determine which employer was liable to pay for the cost of further hearing aids.  They concluded that as the Respondent had suffered further hearing loss, the responsibility of the earlier employer for the injury deemed to have occurred on 28 June 1999 should be regarded as spent.  JA White determined that there was nothing in the text of section 17 to support such a construction and that there was no legislative requirement compelling a worker to give notice of injury to a later employer.

He noted that it was the Respondent’s view that because he had given notice to the Appellant, they would be liable for all consequences of subsequent hearing loss suffered by him, whether or not attributable to his subsequent employment.  JA White stated that this construction was also not consistent with the legislation.  He considered that if notice of an injury had been given to ACI Operations and if the Applicant’s employment with them was found to be in the nature of which his disease was attributable, then ACI Operations would be liable for the consequences of the Applicant’s further hearing loss, not his total hearing loss.

JA White affirmed Senior Member Capel’s finding that a further loss of hearing represented a fresh injury and although the notice of claim for hearing aids was made in 2020, the claim was not in respect of a separate injury but concerned the 1999 injury.  He noted that the Applicant merely sought to replace his hearing aids.

Implications

This decision highlights that where an employer has been given notice of a hearing loss injury, they will not be able to rely on the fact that a worker has taken up subsequent employment with a different noisy employer in order to cease paying reasonably necessary medical expenses.  For liability to fall with the later employer, notice of an aggravation/deterioration injury must be given and it must be this aggravation/deterioration that results in the need for medical expenses.  A later employer will then only be liable for the consequences of the further hearing loss and not the worker’s complete hearing loss.

The decision also confirms that a worker who has sustained a previous workplace hearing loss injury is not compelled to give notice of a further injury or deterioration to a subsequent noisy employer.

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