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The Workers Compensation Commission (“WCC”) has very recently arrived at two decisions that provide clarity to workers compensation laws in respect of noise induced hearing loss. The respective decisions examine attribution of liability and limitation periods.

 

In Cunningham v The State of NSW (Sydney Local Health District) [2017] NSWWCC 45, the Applicant claimed that his regular exposure to alarms, sirens, pager alerts and helicopter landings of varying decibel levels directly resulted in his suffering noise induced hearing loss. The WCC was not satisfied that his employment had the “tendency, incidents or characteristics which [would] give rise to a real risk of suffering noise induced hearing loss”. This begs the question – what constitutes noisy employment capable of causing noise induced hearing loss?

 

The WCC endorsed regulation 56 of the Work Health and Safety Regulation 2011 (NSW) (“Regulation”), which provides that an employer must not expose an employee to a sound level of 85 decibels over an eight hour period. The Applicant’s expert witness concluded that an environment in which a person has to raise his/her voice to converse with a person standing one meter away is consistent with a sound level of 85 decibels. Importantly, that exposure time limit halves for every 3 decibels in excess of 85 decibels. For example, in Cunningham, the WCC accepted that exposure to 100 decibels of noise for a period of just 15 minutes would exceed the Regulation’s prohibitions on noise exposure. The Regulation also provides that at no time should an employee be exposed to sound levels exceeding 140 decibels. The WCC rejected Cunningham’s claim as a consequence of his failure to sufficiently prove that he was exposed to a dangerous noise level at a frequency capable of causing noise induced hearing loss. 

 

It is also important to note that an employer’s liability for an employee’s noise induced hearing impairment may not necessarily result in them paying compensation. Employees who wish to bring a workers compensation claim must do so in adherence to the relevant legislation.

 

Subject to some exceptions, an employee’s claim for compensation will be statute-barred if it is not brought within the six month limitation period established in s.261(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Act”). Section 261(4) provides that an Applicant’s claim will be exempt from the limitation period where the delay in bringing that claim was the result of his/her ignorance, mistake, absence from the State or some other reasonable cause, and the injury caused them death or serious and permanent disablement.

 

Jones v Qantas Airways Ltd [2017] NSWWCCPD 11 involved a dispute regarding a claim for workers compensation made in 2016 in respect of hearing loss which was deemed (in accordance with section 17) to have occurred at the time of the Applicant’s retirement in 1991. The Arbitrator found that the Applicant had suffered serious and permanent noise induced hearing loss, but nevertheless found in favour of the Respondent because of the undue delay by the Applicant in bringing the action.

 

This decision was appealed by the Applicant on the basis that he claimed to have had “reasonable cause” for delaying his claim. On appeal it was determined that the reasonableness of an Applicant’s conduct is not measured by an objective view of his/her mindset, but rather, it is measured objectively in light of every circumstance in that particular case that shows why failure occurred. In that matter, President Judge Keating ruled that the Appellant’s erroneous belief that wearing a hearing aid would further deteriorate his hearing did not constitute reasonable cause. Further relevant circumstances to that matter were that;

 

1. He knew he had hearing loss;

2. He believed it was a consequence of his noisy employment;

3. He was aware that others had successfully claimed compensation;

4. He elected not to pursue compensation because he was grateful for his ongoing employment;

5. He was qualified and practised in law and thus would have been aware of time limitations generally; and

6. He could have acted on that knowledge without undue delay.

 

When considering any hearing loss claims, employers and insurers should remember that time limits do apply, and that the worker must establish that employment is “noisy” in order to establish an entitlement to compensation.

 

If you would like to discuss any particular hearing loss claims, please contact a lawyer in our Workers Compensation team by calling Sydney on (02) 8297 5900 or Newcastle on (02) 4929 9333.

 

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