DCA 33 - 1988 Hearing Claim to be Treated under 1971 Act

DCA 33 - 1988 Hearing Claim to be Treated under 1971 Act

DCA 33 and Comcare Operational Advice 79 set out a special policy in relation to transitional loss of hearing claims.  The policy applies in cases where:

• a hearing loss claim is made after 1 December 1988;
• the loss of hearing WPI is less than 10% (ie. 20% binaural hearing loss); and
• the exposure to noise causing the loss of hearing occurred in part under the 1930 Act or the 1971 Act,

The policy allows the member to elect:

• to have the percentage of loss attributable to the 1971 Act compensated immediately; or
• to defer assessment and claim the whole loss under the 1988 Act once the WPI is 10% or more (or 2.5% or more where the exposure to noise continues after 1 October 2001).

Note that this option will not apply to members who have already discharged from the ADF and whose hearing loss is noise induced (or sensori-neural).  Medical advice indicates that any further deterioration cannot be attributed to employment once exposure to occupational noise has ceased.

Effectively, this policy gives the member with a loss of hearing WPI of less than 10%, an election whether to:

• have their entitlement determined under the 1971 Act on the basis of the hearing loss suffered up to 30 November 1988; or
• wait to see if there is any further loss of hearing bringing them up to the 10% WPI threshold (or 2.5% threshold where exposure to noise continues on or after 1 October 2001).

Where the loss of hearing WPI is 10% or more (20%+ binaural hearing loss), and the member continued to be exposed to noise after 1 December 1988, the whole of the loss is compensated under the SRC Act using Table 7.1 of the Approved Guide.

Where the exposure to noise causing the loss of hearing occurred only under the 1930 Act or the 1971 Act, the policy does not apply and entitlement to compensation is calculated by the Permanent Impairment Calculator in accordance with entitlements under the earlier Act.

Comcare Operations Manual

The Comcare Operations Manual (Volume 13, Part 6) summarises the policy in the following terms:

Operational Advice 79 relates to hearing loss exposure prior to 01/12/1988.  It specifies that:

“where an employee who was exposed to noise before 1 December 1988 subsequently establishes a hearing loss of less than 20 percent, he or she shall be given the option of:

• being compensated for the percentage loss determined to have existed at 30 November 1988 at the statutory rates applicable at that time; or

• having the claim dealt with under the new impairment provisions (in which case compensation would not be payable until such time as the loss deteriorated to 20 percent or more).”

The Advice provides a formula for calculating what the employee's hearing loss would have been on 30/11/1988 where the loss is assessed to be less than 20%, but there is continued exposure after 01/12/1988.

The formula is:

If an employee decides to accept a benefit under the 1971 Act, he or she would then have to demonstrate a further 20% loss after the commencement of the 1988 Act to later qualify for any deterioration in hearing.

National Acoustic Laboratory Advice

The National Acoustic Library advised on 31 January 1990 that the formula set out in the special policy will estimate with reasonable accuracy the percentage of binaural hearing loss (PLH) that a member would have suffered at 30 November 1988:

(a)A PLH of 20 is a serious hearing loss, in the sense that a person with this amount of hearing loss  typically needs to use a  hearing aid in order to be able to understand what other people are saying.  Only a small proportion of people with a PLH less than 10 need to use a hearing aid but, as PLH increases from 10 to 20, the proportion needing to use a hearing aid increases rapidly until, at a PLH of 20, almost all need to use an aid.

(b)Any PLH greater than 0 has some effect in functional terms, although for PLHs less than about 5, the effect is slight and may not be noticed by the person with the loss.  A PLH of 10 impacts in very definite ways on the functional capacity of the person.  The enclosed earplugs, properly and deeply inserted in accordance with the instructions on the pack, create a PLH of about 10 and, when worn in situations where one has to communicate with others, enable the impact of a PLH of 10 to be experienced.  It should be noted that the functional effects of hearing loss are generally less noticeable to people with impaired hearing than they are to those who have to communicate with them.

(c)To the best of our knowledge, there is no data on the distribution of PLH in industry generally, or even in particular industries.  Information concerning the expected distribution of PLH in a particular industry can be provided as a function of exposure duration if the typical noise exposure level in that industry is known.

(d)The graph in Attachment A gives the typical growth of PLH as a function of exposure duration for a worker exposed to 100 dBA or 105 dBA for 40 years.  The graph shows that, in both cases, the growth of PLH can be approximated reasonably well by means of a straight line.  This means that PLH tends to be linearly proportional to exposure duration.  For example, if a worker is found to have a PLH of 20 after an exposure duration of 20 years, then his PLH at an exposure duration of 19 years can be estimated with reasonable accuracy by means of the equation

PLH — 19  = (19/20) X PLH — 20

= (19/20) x 20

= 19

In general terms, if the PLH is known at a particular exposure duration d2, then the PLH at an earlier duration d1 can be estimated by the equation

PLH — d1= (d1/d2) x PLH — d2

[The graph referred to in the advice is not reproduced]