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23.6.4 Date of injury - hearing loss cases
Date of injury for those claims where liability is accepted should be based on the date on which a measurable loss of hearing is first identified. Unless the hearing loss is from a traumatic event the hearing loss would normally be identified from regular medical review documentation.
There are several aspects of hearing loss claims that should be considered when establishing the date of injury. Under s7(4) of the SRCA, the date of injury for diseases is:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
The great majority of hearing loss claims received by the RCG are for noise induced or sensori-neural hearing loss and are classified as diseases under s7 of the SRCA.
In line with advice from Professor Black (see details below) the date of injury will normally be the date the injury first resulted in impairment and will be not later than the date of discharge.
Hearing loss subsequent to discharge
Under the SRCA, we have adopted a policy approach whereby deterioration in hearing loss subsequent to cessation of military employment is considered non-compensable. This is based on advice from Professor Black that once a person is removed from noise exposure (in Commonwealth employment), any damage previously done by noise trauma would not get any worse.
Further, Professor Black has advised that any deterioration of an individual's hearing (once removed from noise exposure) can be ascribed to the normal effects of ageing and such deterioration would have occurred regardless of earlier noise induced hearing loss.
In the majority of cases, a hearing test is conducted at the time of discharge. That hearing test, or any earlier ADF hearing test, may represent the date that the member first sought medical treatment (as well as the first indication of impairment) and can usually be taken to be the date of injury.
The date of injury for diseases can also be the date that the disease first resulted in the impairment of the member (S7(4)(b)). This provision will be more relevant to those older cases where there are no available hearing tests that can reliably be used to indicate hearing loss (i.e. where there is no contemporary date that the member first sought medical treatment). In these cases, Delegates can establish the date of injury from whenever the medical evidence (including the PI assessment) indicates that impairment first resulted from the condition. Bearing in mind the policy outlined above, this will normally not be later than the date of discharge from the ADF (i.e. not later than the removal of the member from the source of the noise exposure).
In all cases, the delegate must be satisfied that the assessed hearing loss is due to noise exposure during service and not exposure after the member's discharge from the military.
Delegates should also note, however, that there will occasionally be cases where disease or injury processes (other than noise exposure) leads to the hearing loss. In these cases, the earlier of “date first sought medical treatment” or “impairment” (i.e. DOI) may be after the member left ADF employment.
Refer to chapter 44 of the Permanent Impairment Handbook for more detailed discussion on hearing loss claims.
Note, these rules apply only to SRCA claims. MRCA and VEA claims may have different rules accounting for the effects of ageing.