Industrial Deafness Lump Sum Claims

The case of Sukkar v Adonis Electrics Pty Limited [2014] NSWCA asks the question of whether a worker can aggregate Whole Person Impairment (“WPI”) for workers compensation hearing loss (“industrial deafness”) claims. In other words, if an injured worker’s hearing loss has worsened since the first lump sum compensation claim for permanent impairment, can the initial ‘hearing loss claim’ and the ‘further hearing loss claim’ be aggregated to meet the WPI threshold, that is, greater than 10% WPI (i.e. 11% WPI or more) to entitle the injured worker to further lump sum compensation?

In this case, Mr Sukkar on 29 August 1996 made a claim for lump sum compensation pursuant to Section 66 of the Workers Compensation Act, 1987 (“WCA”). This was in relation to industrial deafness he suffered from exposure to noise at his workplace. The loss was assessed and, as a result, Mr Sukkar received $11,093.35 in lump sum compensation benefits.

On 19 June 2012, Mr Sukkar made a further lump sum compensation claim due to deterioration in his hearing as a result of his workplace noise exposure. Mr Sukkar’s further lump sum compensation claim was made on the basis of an additional 9% WPI for further hearing loss.

However, since 19 June 2012 amendments to the WCA imposed a minimum threshold of 10% WPI for an injured worker to be eligible to claim lump sum compensation.

The workers compensation insurer rejected Mr Sukkar’s claim on the basis that Section 17(1) of the WCA deemed the date of injury as 19 June 2012, and consequently Mr Sukkar’s claim for 9%WPI did not satisfy the minimum threshold requirement to claim lump sum compensation..

The matter eventually progressed to the NSW Court of Appeal, with the Court finding in favour of the insurer’s interpretation of Section 17 of the WCA. Specifically, the Court found that, whilst the pathology of the “two” industrial deafness claims were the same, Section 17 of the WCA imposed a new deemed date of injury on the second claim (i.e. that date on which the claim was made), and consequently the injuries were distinct and could not be aggregated. When Section 17 was applied in the context of the 2012 amendments, the NSW Court of Appeal found that an injured worker is required to satisfy the minimum 10% WPI threshold requirement to be eligible to bring an industrial deafness lump sum compensation claim each time a claim is made. Previous assessed WPI for a worker’s hearing loss cannot be combined with further hearing loss to satisfy the threshold requirement.

As a result, Mr Sukkar’s claim was unsuccessful due to his “further” hearing loss, which was deemed to be a new injury, being less than 10% WPI.

If you (or someone you know) has suffered from industrial deafness, it is important that you seek legal advice as soon as possible to understand the benefits and legal avenues available. This is particularly important due to amendments, and restrictions now imposed under the Workers Compensation Act, 1987.

Our expert lawyers are here to help. If you would like further information or require legal assistance you can Telephone us on 1300 292 700 or use our Legal Enquiry Form for same business day response. There is no cost to you for making initial contact with us.