The relevant Tables in Chapter 7 'Ear, nose and throat disorders' are:
- Table 7.1 – Hearing
- Table 7.2 – Miscellaneous Ear Nose and Throat Disorders
Hearing impairment under Table 7.1 must be distinguished from loss of the capacity to comprehend spoken language i.e. the ability to receive auditory signals must be distinguished from the ability to interpret such signals. Loss of hearing comprehension is assessed under Table 12.2 'Comprehension – Hearing and Reading'.
Tinnitus is included in Table 7.2 'Miscellaneous Ear, Nose and Throat Disorders' and should not be rated as a Hearing Loss under Table 7.1.
Once liability has been accepted for hearing loss, entitlement to permanent impairment compensation can be considered. The percentage loss of hearing to be considered for PI purposes is based on an up to date professional audiogram conducted by Australian Hearing or the equivalent with any age related deterioration deducted.
Entitlement to compensation for hearing loss, the amount of compensation paid, and the Act under which it is paid, is affected by a number of factors (including legislative change on 1 October 2001):
- Whether the period of hearing loss is affected by the Safety Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) transitional provisions (i.e. where the injury commenced before Compensation (Commonwealth Government Employees) Act 1971 (the "1971 Act") was replaced by the DRCA on 1 December 1988). Hearing loss claims in this category may be affected by a special policy for a 1988 DRCA hearing claim to be treated under the 1971 Act
- Whether the period of hearing loss includes any period after the commencement of Part 9 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (the SRCOLA Act) on 1 October 2001.
- Whether the period of hearing loss includes any period after the commencement of the Military Rehabilitation and Compensation Act 2004 (MRCA) on 1 July 2004.
WPI for Hearing Loss may be expressed in graduations less than 5%
WPI in Table 7.1, unlike the other tables in Division 1 of the DRCA PI Guide, may be expressed in graduations of less than 5% because the WPI is half of the binaural percentage of hearing loss determined by a medical examination (i.e. audiological assessment).
If a hearing loss WPI is to be used in the Combined Values Chart in Chapter 14, it will automatically be rounded up or down to a whole integer (0.5 will be rounded up). This would be a very rare occurrence following the Canute decision, as hearing loss that meets the definition of a discrete injury would be assessed separately from all other impairments sustained (the same applies to tinnitus).
Where the hearing loss occurred before 1 October 2001, as a matter of policy, a hearing loss WPI of 9.5% or greater will be accepted as meeting the 10% minimum impairment requirement in s24(7).
Where the hearing loss occurred after 1 October 2001, new s24(7A) provides that the threshold is a binaural hearing loss of 5% (2.5% WPI). If the Date of Injury is before 1 October 2001, but exposure to noise continues after that date, the client is entitled to compensation under the reduced threshold.
Deterioration of noise-induced hearing loss due to presbyacusis (the normal loss of hearing which accompanies ageing)
When assessing permanent impairment compensation as a result of hearing loss, the normal loss of hearing which accompanies ageing must be taken into account. This information should be requested as part of a specialist audiological assessment by Australian Hearing or the equivalent professional audiological services. Compensation is not payable for the portion of hearing loss that is attributable to the effects of the ageing process.
The audiogram
Hearing impairment is to be assessed by reference to an audiogram. An audiogram should be performed by an appropriately qualified practitioner (audiologist or audiometrist) and be completed in sound treated conditions. An audiogram showing both bone conduction and air conduction hearing threshold levels (HTLs) should be used. Hearing tests should usually show measurements of the HTLs at each of the following frequencies:
500 Hz, 1000 Hz, 1500 Hz, 2000 Hz, 3000 Hz and 4000 Hz.
If HTL measurements are missing at one or two frequencies, the missing values can usually be estimated (interpolation) by inspection of the audiogram, by applying knowledge of the type of hearing loss, and examination of other audiograms.
Hearing impairment is to be assessed in accordance with the current procedures from the Australian National Acoustic Laboratories (NAL). Neither the Guide nor the procedures outlined in the NAL provide any specific instructions regarding the requirements of audiograms in the assessment of hearing loss under Table 7.1, particularly in relation to the appropriate consideration of air or bone conduction data.
A generally accepted principle in audiology is that sensorineural hearing loss is calculated from bone conduction thresholds. However, as there is nothing specific in the Guide that limits the use of air conduction HTLs, air conduction HTLs can be used, unless there is any medical evidence advising that this data is unreliable or inconsistent (such as a note from the assessing audiologist noting other known factors may have influenced the air conduction HTL).
The highest rating of air or bone conduction is to be used for the purposes of the PI assessment. However, it should be noted that as a the assessable hearing loss cannot exceed the total loss of hearing, a bone conduction value cannot legitimately exceed an air conduction value (at any given frequency in the ear). Hence, a bone conduction value that shows more decibel loss than the corresponding air conduction value is not valid and must not be used. An audiogram can be considered consistent if air and bone values are within 10 dB. An air bone gap greater than 10 dB (especially at two or more consecutive frequencies) would constitute a conductive component to the hearing loss and as such, air conduction should not be used to assess sensorineural hearing loss in those instances.
If there is evidence to indicate that an audiogram is unreliable or inconsistent, a repeat audiogram or referral to an ENT specialist would be appropriate to clarify the situation.
DRCA Transitional Cases
Where a client’s service in the ADF, exposure to noise and subsequent hearing loss are linked to service prior to the introduction of the DRCA on 1 December 1988, the transitional provisions apply.
Section 124 of the DRCA allows for injuries that occurred before the commencement of the DRCA to be compensated under the DRCA where they would have been compensable under the Act that was in force at the time of the injury (that is, the Commonwealth Employees' Compensation Act 1930 (the "1930 Act") or the 1971 Act). The compensation to be granted is the amount that would have been payable under the Act that was in force at the time.
There are some limited circumstances where a 1930 or 1971 Act injury can be considered for PI under the DRCA. Chapter 3.3.2.1 provides the background for this.
For the assessment of PI claims, there are two questions that need to be asked;
- When did the person first experience hearing loss?
- When did any impairment resulting from hearing loss become permanent?
If the answer to either of these questions is a date after 1 December 1988 then the DRCA provisions apply.
Generally speaking, a claim for hearing loss with a date of injury pre 1 December 1988 will most likely not result in the DRCA PI provisions applying. This is because once hearing loss has been diagnosed/identified any impairment as a result of this is usually considered to be permanent.
However, as a result of the criteria for date of injury for disease provisions, it is possible that hearing loss from service pre 1 December 1988 may result in a date of injury that is post 1 December 1988. Where the date of injury is post 1 December 1988, the claim, and therefore any PI compensation, can be considered under the DRCA provisions.
Where there is any doubt over the quality of the ADF provided audiograms contained in service records and there is a more reliable audiogram (i.e. as provided by Australian Hearing or the equivalent) it is open to the PI delegate to consider that the more recent reliable audiogram is the appropriate date in which to consider a person first suffered from hearing loss and/or the impairment became permanent.
Where a pre-1988 claim can be considered under the DRCA provisions, and the appropriate threshold is met, it will allow for clients to be compensated under s24 of the DRCA including payment for non economic loss (NEL) under s27.
Some DRCA hearing loss claims can be treated under the 1971 Act. This policy applies in cases where:
- the date of injury for a hearing loss claim is after 1 December 1988 and before 1 October 2001.
- the loss of hearing WPI is less than 10% (i.e. less than 20% binaural hearing loss), and
- the exposure to noise (i.e. ADF service) contributing to the loss of hearing occurred in part under the 1930 Act or the 1971 Act.
This policy allows for circumstances where the members hearing loss does not meet the threshold for payment of permanent impairment compensation under the DRCA, to instead be compensated for the percentage loss of hearing under the rates in place under the 1930 or 1971 Act.
DRCA/MRCA Transitional Cases
Where hearing loss has been accepted under the DRCA and an aggravation under the MRCA, and where compensation has not been paid under the DRCA for hearing loss, there is an option available to consider applying the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (CaTP) to bring all of the compensation for hearing loss under the MRCA. This would only be an appropriate course of action where the outcome of a MRCA hearing loss claim would be positive (i.e. this would need to be tested first before any action is taken to revoke the DRCA determination). Where this applies, the DRCA determination would be revoked, compensation under the DRCA would cease to apply and all compensation would subsequently be provided under the MRCA. There will be no requirement to apportion the effects of hearing loss under the GARP impairment assessment because hearing loss will no longer be a DRCA accepted condition included in a Chapter 25 calculation.
Where a client’s service in the ADF, exposure to noise and subsequent hearing loss are linked to service before, and on or after the commencement date of the MRCA on 1 July 2004, transitional provisions of the CaTP will apply. Where hearing loss has been accepted under the DRCA and an aggravation under the MRCA, and where compensation has already been paid under the DRCA, it will not be appropriate to consider revoking the DRCA determination as this would result in overpayment consequences. In these circumstances the processing of the DRCA and MRCA claims will need to be considered in the usual way.
- Under DRCA for the loss up until 30 June 2004; and
- Under MRCA for the loss from 1 July 2004 to date (as per usual practice) – MRCA assessment will have to apportion using GARP the impairment split between DRCA and MRCA
In cases where an interval audiogram at or around 30 June 2004 is unavailable, the delegate may decide to seek specialist opinion addressing the estimate of any hearing loss levels at 30 June 2004. This may assist the delegate in appropriately determining the partially contributing impairment under MRCA and DRCA respectfully.
Alternatively, where a PI claim for DRCA hearing loss which is also accepted under the MRCA is inadvertently paid based on a current audiogram (i.e. compensating the veteran for all of their hearing loss under the DRCA), the MRCA assessment will need to consider this and apportion all of the hearing loss against the DRCA in the GARP assessment and Chapter 25 calculation.
Information about the date of injury for hearing loss claims can found in the Liability Handbook at Chapter 23.6. Relevantly, delegates should not simply use the date of enlistment or date of discharge as the date of onset. 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. The date of onset must be determined with reference to all of the available evidence.
Assessing hearing loss when the veteran has a cochlear implant device
Delegates may encounter claims for PI for hearing loss where the veteran has undergone surgery to fit a cochlear implant device. A known side-effect of implanting the device is that the veteran’s remaining natural hearing loss is destroyed, however, with the device switched on, the veteran’s level of hearing is significantly improved.
The DRCA PI Guide does not provide any clear instructions about whether a veteran’s hearing should be assessed with or without a hearing aid device, however, it has been widely adopted that the assessment should replicate the GARP process, assessing a veteran’s binaural hearing loss without the benefit of any hearing aid.
For this reason, where a veteran’s level of hearing loss for PI purposes needs to be assessed after a cochlear implant device has been implanted, this assessment should be performed with the device switched off. The delegate should also consider whether the impairment has reached a stable and static level following the medical procedure to implant the device, as the stabilisation of hearing following this process can take some months.