23.6 Hearing Loss
In this section
23.6.1 Liability for hearing loss
23.6.2 Date of injury for diseases and injuries
23.6.3 Investigation of claims
23.6.4 Claims under predecessor Acts
23.6.5 Claims with any period of service after 1 July 2004
23.6.6 Hearing loss case examples
There are two main types of deafness resulting from workplace exposure:
Noise induced or sensorineural hearing loss (SNHL) usually occurs after a period of extended exposure to noise. Examples include prolonged exposure to loud noises like aircraft engines or gunfire. Audiograms will reveal higher level frequencies are generally affected first then eventually the lower level frequencies.
Noise induced hearing loss is generally assessed under the disease provisions of the DRCA.
Noise or acoustic trauma, can occur if a person is exposed to an intense or explosive sound. Audiogram readings could show a high or low frequency loss, or an across all frequency loss.
If hearing loss is caused by a specific incident (for example, barotrauma or head injury), it should be treated as an injury. This should be supported by medical evidence stating when the incident occurred.
There are of course other medical conditions or injuries that can result in hearing loss. Normal investigation procedures would be followed during examination of claims based on those conditions or incidents.
23.6.1 Liability for hearing loss
In December 2017 the Military Rehabilitation and Compensation Commission (Commission) agreed to a policy review for noise induced hearing loss which would align, where possible, the policy in place for claiming and assessing under DRCA and VEA/MRCA.
Previously, the policy approach was that deterioration in hearing loss subsequent to cessation of military employment is non-compensable. This was based on previous advice that once a person is removed from noise exposure (in Commonwealth employment), any damage previously done by noise trauma would not get any worse. This is no longer the policy.
Under the VEA and MRCA streamlining process, it is recognised that on the balance of probabilities all military personnel will meet the requirements of at least one of the Statement of Principles factors for sensorineural hearing loss. The same can also be said of claimants under DRCA, that in their military service they would have experienced conditions likely to cause hearing loss.
As such, from May 2018, the delegate may accept a claim for any hearing loss that is not associated with age-related hearing loss, and provided there is evidence of relevant service and exposure or trauma. There is no requirement to further investigate or apportion any contributory hearing loss to factors other than age-related hearing loss.
The Commission supports the view that where a diagnosis of SNHL is confirmed the hearing loss can be accepted as service related. Practically, this reflects an assumption that there will be a material/significant contribution from military service to the development of SNHL (disease) in the absence of contradictory evidence. However, further investigation would be required if there is significant evidence of other long-term exposure to conditions that is likely to cause hearing loss (e.g. prior- or post-service employment in construction).
23.6.2 Date of injury for diseases and injuries
Diseases
When hearing loss is attributed to extended exposure to excessive noise, as is the case for noise induced or sensorineural hearing loss, it should be treated as a disease. Under s7(4) of the DRCA, 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.
Given the nature of hearing loss, there will generally be no need to consider death. Therefore, a delegate should establish when a person:
1. first sought medical treatment for the hearing loss,
2. was first incapacitated for work, or
3. was first impaired by their hearing loss.
Delegates should not use date of discharge as the date of injury. This was confirmed by the Federal Court in the case of Comcare v Kemp [2020] FCA 865 (19 June 2020), which found that s 7(4) did not allow for the date of injury to be deemed as the last possible date of exposure as a matter of course.
In addition to this, there is no legislative or policy rationale for using the date of enlistment as the date of injury for hearing loss claims.
What is medical treatment?
For the purposes of determining the date of disease for hearing loss claims, medical treatment may include:
- hearing assessments (such as external audiograms),
- as well as consultations with doctors which are specifically related to the hearing loss and where treatment is provided to the client.
However, a person is not ‘[seeking] medical treatment for the disease’ by virtue of attending their annual ADF medical examination. Furthermore, delegates should note that even where a person’s file shows evidence of loss on the annual medical examination or an ADF-conducted audiogram, medical advice is that such audiograms do not meet the appropriate standards for a diagnosis of hearing loss. As such, service audiograms should not be relied upon in order to confirm a service connection or show any degree of hearing loss. This same approach should be taken to ‘whisper test’ results or other unofficial calculations of damage to a person’s hearing
The delegate should only accept evidence of hearing loss as shown by a reputable audiology service, external from Defence, which has performed ‘bone conduction’ studies. This audiological testing could then be used as the date of first medical treatment, if there is no prior evidence of impairment or incapacity for work.
What is impairment?
Subsection 4(1) defines impairment as ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’. An example might be a member who presents to a medical officer complaining of loss of hearing, which is subsequently confirmed through an external audiogram to be SNHL. While the later external audiogram could be chosen as date of injury, it would open to the delegate to use the date of the presentation to the medical officer as the date that the member was impaired by their hearing loss.
Injury
In the case of noise or acoustic trauma, the appropriate date is the date when the event causing the injury or aggravation occurred. Delegates should note that the DRCA has no requirement for a minimum decibel shift to have occurred in order for liability to be accepted.
23.6.3 Investigation of claims
The investigation of hearing loss claims should establish what level of an identified hearing loss is noise-induced, less the level of age-related hearing loss. There is no longer a requirement to request a Hearing Loss Supporting Statement to determine any potential hearing loss before or after service.
Hearing Tests
Under the DRCA, there is no minimum decibel shift required before liability can be accepted. This is one of the areas of differentiation between the DRCA and VEA/MRCA which are bound by the SoPs.
Hearing tests should usually show that there is a permanent shift to a hearing threshold of 25 decibels (db) or more at 500, 1000, 1500, 2000, 3000, 4000 or 6000 Hz. However, this threshold is not a requirement under the DRCA and would not hold up to reconsideration or review if the claim was rejected on this basis.
Delegates should rely on a reputable audiology tests to determine hearing loss has occurred. These will allow an audiologist or ENT specialist to provide a diagnosis relating to hearing loss.
Where hearing tests already exist
Medical advice is that service audiograms may not meet appropriate standards for the diagnosis of hearing loss. This is due to the fact that bone conduction, which enables the differentiation of the type of hearing loss, is rarely available. In addition, environmental conditions are not assured; proper hearing tests must be performed in a controlled environment and without noise exposure 24 hours prior. Therefore, service audiograms should not be relied on in order to show any degree of hearing loss. This same approach should be taken to ‘whisper test’ results or other unofficial calculations of damage to a person’s hearing.
Where an up-to-date audiogram, which has performed bone conduction, already exists, and a client is willing to use it for the purposes of their liability claim and compensation assessment, then the pre-existing one may be used.
However, in all cases it is recommended that delegates refer claimants to Australian Hearing, or other reputable audiology services, to conduct up-to-date and accurate audiograms to assess the level of compensable hearing loss. Early assessment at this stage of a person’s claim process would be beneficial in determining later compensation and support assessments.
Audiology referrals
The services of a reputable audiology service should also be used when independent medical evidence regarding hearing loss claims is required. Within ISH, there is a standard letter package for use when referring claimants for assessment.
These providers have the expertise to differentiate between noise-induced and age-related hearing loss.
23.6.4 Claims under predecessor Acts
Under the 1930 and 1971 Acts, liability claims must meet the relevant legislative tests of causation (CLIK 21.3).
Notice and claim requirements
The DRCA and its predecessor Acts require an employee to give notice in writing of an injury or loss of property as soon as practicable after the employee becomes aware of the injury and state that the Act does not apply in relation to the injury or loss if this requirement is not met.
In relation to all hearing loss claims, delegates may consider that proper notice has been given. Given what is known about the nature of service and hearing loss, the Commonwealth is not prejudiced by a late notice.
Therefore, delegates must not automatically reject a claim for hearing loss that has been lodged under DRCA or its predecessor Acts.
23.6.5 Claims with any period of service post 1 July 2004
Where hearing loss may relate to eligible service under the DRCA as well as defence service under the MRCA, then the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 provide rules which govern the interaction of the two Acts (CLIK Chapter 12). The intention is that, where applicable, transitional claims should be brought under MRCA.
In the case of hearing loss claims, where a client has both DRCA and MRCA service, a reasonable assumption can usually be made that MRCA service has materially contributed to the client’s hearing loss. As such, delegates are encouraged to take into account the totality of service and apply the transitional provisions to assess the claim under MRCA. This will have a more beneficial outcome for the client during the assessment of compensation payments.
23.6.6 Hearing loss case examples
Example 1
Mr Smith joined the RAAF in 1990 and separated from the ADF in 2007 to look after his elderly parents. Throughout his career he was frequently exposed to aircraft, machinery and equipment noise and vibration in bases within Australia. Mr Smith never deployed overseas and in 2019 Mr Smith made a claim with DVA for hearing loss. His medical documents on file contain a number of service audiograms showing some hearing loss before 2004. Mr Smith contends that the hearing exposure throughout his service contributed to his condition. Due to contribution from service before and on or after 1 July 2004, the transitional provisions are applied and a 'date of onset' should be determined as per the MRCA. As per the policy, these service audiograms are not used by the delegate to determine date of onset (date of injury under the DRCA). Upon the receipt of an up-to-date audiogram confirming SNHL and that a BOP SOP factor was met, the claim was accepted under MRCA. The date of onset chosen by the delegate is the date of the up-to-date audiogram.
Example 2
Ms White joined the Army in 1970 and separated from the ADF in 1989. In 1987 she suffered acoustic trauma due to an explosion during a training exercise This resulted in Ms White being referred to an Ear, Nose and Throat specialist for a hearing assessment. Ms White claimed with DVA in 2019 for hearing loss after a second career as a HR manager at a recruitment company. On review of Ms White’s medical file, the tests conducted by the ENT specialist are uncovered and it is shown that Ms White suffered hearing loss in 1987. As the claim relates to an injury, not a disease, the date of injury is the date of the explosion at the training exercise. Ms White’s claim is assessed and determined under the 1971 Act by the delegate.
Example 3
Mr Blanche joined the RAN in 1990 and separated from the ADF in 2001 to pursue his interest in landscape painting. Throughout his career Mr Blanche was frequently exposed to high levels of noise from onboard machinery, ship engines, and aircraft. Mr Blanche claims with DVA in 2019 for hearing loss. Mr Blanche’s medical file does not contain any indication of hearing loss and Mr Blanche is sent to a reputable audiology service for a hearing assessment. The audiogram confirms SNHL and a significant level of hearing loss that is unrelated to Mr Blanche’s age. The claim is assessed and determined under the DRCA. The date of injury is set as 2019 as there are is no previous evidence of incapacity for work or impairment of the employee from SNHL before this date.