Assessing hearing loss – when is a claim no longer compensable?
Date: September 19, 2019
Cook and Telstra Corporation Limited  AATA 1511.
- Mr Cook claimed that he suffered hearing loss as a result of his work at Telstra.
- The Tribunal was required to consider whether Mr Cook had a further claim for permanent impairment and non-economic loss in relation to the further deterioration in his hearing.
Mr Wallace Cook, 76 years of age, was employed as a Telstra technician for over 40 years, before he retired in 2017.
In 2001, Mr Cook submitted a claim for workers’ compensation for noise induced hearing loss as a result of his employment. Liability to pay compensation was accepted in respect of a 27.6% bilateral hearing loss. Mr Cook submitted a further claim in 2002 and liability was accepted in respect of a 40% bilateral hearing loss.
Following his retirement, Mr Cook submitted a further claim dated 1 December 2017 for permanent impairment in respect of his hearing loss. In support of his claim, Mr Cook wrote to Telstra and advised that since 2003 he had noticed a significant deterioration in his hearing and he claimed his hearing loss was now 70.8%.
Telstra arranged for Mr Cook to be examined by Dr Paul Allison, Otolaryngologist. Dr Allison found that the increased hearing loss that had occurred over the last 15 years was not related to noise exposure but was due to presbycusis (hearing loss caused by ageing) and hereditodegenerative causes. He was of the opinion that the further hearing loss was not compensable and had not been caused by Mr Cook’s employment with Telstra.
Based on Dr Allison’s opinion, Telstra determined that Mr Cook continued to suffer from the compensable condition and was liable to pay compensation for the cost of a new hearing device pursuant to section 16 of the SRC Act, but it was not liable to pay compensation for permanent impairment for the further deterioration of the applicant’s hearing loss. Mr Cook filed an application for review of that decision at the Administrative Appeals Tribunal.
The Tribunal affirmed Telstra’s decision that it was not liable to pay compensation for permanent impairment for the further deterioration of Mr Cook’s hearing. In making its decision the Tribunal relied on the evidence given by Dr Allison.
Mr Cook argued that he had been exposed to high levels of noise in many normal daily living activities as a result of his hearing loss and that a hearing-impaired person is at significantly greater risk of further hearing loss at lower levels than a normal hearing person.
At hearing, Dr Allison gave evidence that activities of daily living, including listening to the television at a very high volume, does not cause noise induced hearing loss and that damage does not worsen once the noise exposure ceased. Dr Allison said that sometimes people lose their hearing rapidly and there is no known reason or apparent cause, this is referred to as hereditogenerative causes. Dr Allison found that Mr Cook’s hearing tests showed no noise damage in the previous 15 years and that having to listen to noises louder because of deafness does not cause any additional loss.
Based on the evidence given by Dr Allison, the Tribunal found that there was no evidence that Telstra was responsible for any noise related damage incurred by Mr Cook after he left his employment. If Mr Cook had suffered further injuries from new noise exposure it was not the responsibility of Telstra.
The decision highlights the difficulties that an applicant may face when bringing a claim for hearing loss after they have ceased employment. An applicant must establish either, in the case of an injury pursuant to s 5A(1)(b) of the SRC Act that the hearing loss was an injury arising out of, or in the course of, the employee’s employment, or in the case of a disease pursuant to s5B(1) of the SRC Act, was contributed to a significant degree by the employee’s employment. Where an applicant fails to bring evidence that its employer is responsible for the hearing loss, the claim will likely fail.
Aimee Daga Brett Ablong
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