IB claims management policy for industrial deafness
This document details the ‘best management’ of hearing loss claims in general and those specifically affected by the decisions of Del Borgo and Stojcevski.
Claims affected by Del Borgo appeal decision
|Case||Victorian WorkCover Authority v. Luigi Del Borgo & Ors|
|Judges||Winneke, P., Oriston and Eames, JJ.A|
|Date of Judgment||11 June 2004|
On 8 October 2002 Mr Justice Osborn of the Supreme Court of Victoria in the matter of Del Borgo v Niselle & Ors determined that in assessing further hearing loss (that is a claim for hearing loss where the worker has already received a hearing loss settlement) it is not appropriate to deduct the percentage impairment from any prior assessments from the percentage of impairment as assessed.
On 11 June 2004 the Victorian Court of Appeal (Winneke, Ormiston and Eames, J.J.A) dismissed the VWA’s appeal of the Supreme Court decision.
|Effect of the decision||
The ramifications of the Court of Appeal decision are:
Where a worker received a prior hearing loss settlement under Victorian workers' compensation legislation the dollar amount of the earlier settlement can be deducted.
The threshold for hearing loss impairments (10% WPI) need only apply once. Each subsequent claim is not required to meet the threshold again to receive any entitlement.
A worker lodges an IB claim for industrial hearing loss with a date of injury of 1 October 1999 and is assessed at 10% whole person impairment (10% NAL converted to 10% WPI) and is awarded and paid $5,040.
The worker then lodges a further IB claim for industrial hearing loss with a date of injury of 1 February 2004 and is assessed at 12% whole person impairment (13.6%NAL converted to 12% WPI) and is awarded $16,230. The worker is paid $11,190 being the amount outstanding of $16,230 when the prior payment of $5,040 is deducted.
Management of claims current at the time of the Del Borgo decision
Claims where the notice of entitlement was not issued pending the outcome of the Del Borgo appeal are to have their notice of entitlements issued to in line with the decision.
Calculation of entitlement where prior hearing loss claim existed
If the worker has a prior hearing loss claim under Victorian workers' compensation legislation, the notice of entitlement for the current hearing loss claim should be calculated in line with the whole person impairment percentage issued by the independent impairment assessor (no deductions of prior NAL).
The dollar amount of what was paid for the prior claim is deducted from the current dollar entitlement.
Incomplete notice of entitlement to be calculated
The Agent must complete an incomplete notice of entitlement in line with the whole person impairment percentage issued by the independent impairment assessor.
Notice of entitlement generated by WorkSafe
The Agent should provide the following details to WorkSafe so that an accurate notice of entitlement can be generated:
- claim number and name
- date of injury
- date of assessment
- outcome of assessment
- claims number and name of prior hearing loss claims with entitlement awarded (with confirmation that prior payment was made)
- date of payment of prior hearing loss.
Management of claims finalised before Del Borgo decision
Agents should refer any requests from workers or workers’ representatives to ‘re-open’ and re-finalise hearing loss claims in line with Del Borgo to WorkSafe.
Management of claims lodged after Del Borgo decision
Before determining liability, Agents should obtain:
- information used to calculate previous hearing loss. For example: prior audiograms, medical reports and notice of entitlement
- up to date audiograms/medical reports
- a circumstance report Reports produced by private investigators about the details of a claim. from the worker’s current employment to confirm whether employment is considered a significant contributing factor (eg whether the worker’s job/role description verifies that any hearing loss may have been a possible result of same).
If the worker’s condition has not deteriorated by any degree, liability should not be accepted for any claimed deterioration in hearing loss.
Marginal increment in hearing loss
If the worker’s level of hearing loss has increased marginally and the Agent, medical treaters or IME Independent Medical Examiner / Independent Medical Examination are unable to determine whether any part of that hearing loss is work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment., further testing (eg CERA testing) be undertaken to confirm the status of the worker’s condition.
Subsequent confirmed hearing loss
If liability is accepted for a subsequent deterioration in hearing, the dollar amount of any earlier settlement A lump sum payment that replaces an injured worker's right to ongoing weekly compensation. under Victorian workers' compensation legislation can be deducted.
Note: Independent Impairment Assessors are not to be requested to deduct any NAL/WPI Whole person impairment percentage in relation to the prior hearing loss.
Evidence of prior hearing loss
To determine any prior hearing loss as a result of interstate employment the Agent should, where possible, determine:
- What was the worker’s previous occupation with any interstate employer?
- What duties the worker was employed to undertake during their interstate employment?
- Time worked at interstate employment(s)?
- Whether any prior hearing loss impairment has been awarded as a result of employment interstate?
- documentation from interstate employer confirming possibility of noise induced hearing loss or documenting any proven hearing loss occurred interstate. (eg Factory noise level testings, prior hearing tests etc).
Note: The worker’s consent is required before obtaining any information from an interstate insurer or interstate employer. If no consent is given, consideration should be given to rejecting the claim on the basis that the hearing loss was sustained interstate. The legal proceedings, on the rejection of liability, may bring forth the required documents to substantiate the prior hearing loss.
Instructions to examiner
If it is considered reasonable that the worker suffered an industrial hearing loss interstate the Agent should have the worker assessed to determine:
- the whole person impairment inclusive of any hearing loss which may have occurred as a result of the worker’s prior interstate employment
- the whole person impairment of the hearing loss which is considered to have occurred within Victoria, based on a time weighted scale (if this is not provided, this can be undertaken by the Agent if there is clear evidence of a prior interstate hearing loss)
- hearing loss from unrelated causes (other than ‘employment’) such as exposure to firearms, loud music etc should be taken into consideration and when determining the total loss of employment related hearing loss.
Calculation of entitlement
Before issuing the notice of entitlement the Agent is to deduct, based on a time weighted scale (eg hearing loss occurring at a constant rate over the period of noise exposure), the percentage of impairment that is considered to be 'non-compensable' (the interstate hearing loss impairment).
If there is clear evidence which substantiates that the interstate hearing loss occurred at a greater level than what occurred in Victoria the time weighted scale would apply.
If the time weighted scale is not appropriate, for example where a worker has worked interstate for one year, yet the majority of the hearing loss has been proven by medical records to have occurred interstate, the Agent should contact WorkSafe for further instruction.
The notice of entitlement is to be issued on the adjusted whole person impairment.
If the worker disputes the notice of entitlement as a result of the deduction of the interstate hearing loss the right of appeal in relation to the notice of entitlement) lies in the County Court.
The Agent is to seek WorkSafe instruction if they are unsure as to whether information to hand can be considered probable cause to justify a deduction of an interstate industrial hearing loss.
The Agent is to advise WorkSafe immediately upon any dispute (lodged in County Court or otherwise) of a deduction of an interstate industrial hearing loss.