When are hearing aids reasonably necessary?
Bikesic v James Hardie Industries Ltd [2020] NSWWCC 31
Arbitrator Burge was required to determine whether hearing aids were reasonably necessary as a result of the industrial deafness.
Mr Bikesic (‘the Claimant’) brought proceedings against James Hardie Industries Ltd (‘the Respondent’) for lump sum compensation and the cost of hearing aids. The claim for permanent impairment compensation was referred an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate in which 2.1% of the Applicant’s total hearing loss of 19.1% was attributed to the noisy employment with the Respondent.
Given the findings of the AMS regarding the level of industrial deafness compared to the Applicant’s overall hearing loss, Arbitrator Burge was required to determine whether hearing aids were reasonably necessary as a result of the industrial deafness.
Findings and reasoning
There was no issue that the Applicant suffered from industrial deafness; the AMS found that approximately 11% of the Applicant’s binaural hearing impairment from all causes was due to industrial deafness. By reference to test from Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 at [58], Arbitrator Burge considered that the question was whether the industrial deafness made a material contribution to the overall hearing loss which necessitated the proposed hearing aids. Arbitrator Burge accepted that the question of material contribution must be addressed globally because the industrial deafness forms part of the overall hearing loss which required hearing aids.
Arbitrator Burge noted that the onus lies with the Applicant to establish on balance that industrial deafness had materially contributed to the need for hearing aids. Arbitrator Burge explained that in a matter where there has been an AMS finding to the effect that the level of industrial deafness is a small proportion of the overall hearing loss, there must be some basis provided by the Applicant’s IME which explains how the relevant component contributes to the need for the proposed treatment.
Arbitrator Burge found that the explanation provided by the Applicant’s IME was insufficient to explain the connection between the industrial deafness and the need for hearing aids. The Applicant had therefore failed to discharge the onus of proving material contribution.
On this basis, Arbitrator Burge found in favour of the Respondent employer.
Implications:
In order to succeed in cases where an AMS has determined that industrial deafness constitutes a small proportion of the overall hearing loss, the Applicant must bring evidence which clearly demonstrates the material contribution of the industrial deafness to the need for hearing aids. Arbitrators will determine these matters based on the strength of each party’s evidence as to the connection between the industrial deafness and the requirement for hearing aids. In that regard, parties should take care to appropriately instruct their respective IMEs to ensure that they provide a detailed explanation as to whether industrial deafness has or has not materially contributed to the need for hearing aids.
