An industrial deafness case study: Patricia Lynch
Ms Patricia Lynch worked as a process worker for Inghams Enterprises Pty Ltd from 1990 until 4 January 2008 when she voluntarily left.
On 8 July 2011, Ms Lynch had her hearing checked by an audiologist. The audiologist told her she had industrial deafness for which she could claim compensation and that she should seek legal advice.
Patricia obtained legal advice and attended an appointment with Dr Dhasmana, an ear, nose and throat specialist on 22 November 2011. Dr Dhasmana confirmed that Patricia has industrial deafness caused by exposure to noise in her employment at Ingham’s.
On 29 December 2011, Ms Lynch signed a claim form claiming compensation for industrial deafness.
On 9 January 2012 Ms Lynch’s claim for lump sum compensation and the cost of hearing aids was sent to Ingham’s. This is the date she gave notice of her injury.
However, the date of her injury was 4 January 2008, being the date she ceased work at Ingham’s and the date she stopped being exposed to industrial noise.
Ingham denied they were liable because Ms Lynch did not give notice of injury as soon as possible after the injury, that is within 6 months. Ingham’s tried to argue that as she had not made a claim within 6 months after, either 4 January 2008 (her last day of employment) or 8 July 2011 (the day of the audiologist test) that she should be prevented from succeeding.
On 18 September 2013, Arbitrator Peacock of the Workers compensation Commission was satisfied that Ms Lynch “had reasonable cause” based on s 261(4) of the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”) for failing to claim within time.
Arbitrator Peacock determined that Ms Lynch as at 8 July 2011 (the date of the audiologist test), was not aware that she could make a claim as she had not received legal advice nor seen an ear, nose and throat specialist. It was not until Ms Lynch saw the specialist on 22 November 2011, and was advised by her solicitor on 1 December 2011 that she became aware that she could make a claim.
Ingham’s chose to appeal the decision of Arbitrator Peacock. The matter came before Deputy President Roche on 17 December 2013. Deputy President Roche revoked the decision of Arbitrator Peacock and referred the matter to a different Arbitrator to re-determine whether the failure to claim within six months of 8 July 2011 was occasioned by ignorance, mistake, absence from the State or other reasonable cause under s 261(4) of the Act.
Ms Lynch did not know she could claim compensation in respect of hearing loss until she saw her solicitor. Deputy President Roche stated as to the evidence provided by Ms Lynch that she “did not say when she knew, if ever, that she had to claim within six months of first becoming aware that she had received an injury… a reasonable inference… is that she was never aware of that fact. Such a conclusion would support a finding that Ms Lynch did not claim within six months of 8 July 2011 because of either ignorance or other reasonable cause”.
However, as Arbitrator Peacock did not deal with that issue specifically, the matter was referred to another Arbitrator to determine whether the failure to claim within six months of 8 July 2011 was occasioned by ignorance, mistake, absence from the State or other reasonable cause under s 261(4) of the Act.
Based on the decision of Deputy President Roche it is likely Ms Lynch’s failure to bring her claim within 6 months, was due to ignorance, mistake, or other reasonable cause under s 261(4) of the Act.
It is also interesting to note, that Ingham’s alleged they were not a noisy employer, despite serving an independent medical report which confirmed that Ms Lynch’s employment with Ingham’s was employment to the nature of which industrial deafness was due, that is, that Ms Lynch’s employment was noisy.
That above case summary highlights when it comes to industrial deafness, it is often the case that a worker does not know they have suffered an injury until someone such as an audiologist or ear, nose and throat specialist confirms their hearing loss is due to exposure to industrial noise not age-related loss.
The message is clear – do not delay if you have been advised you suffer from industrial deafness.
To read the full decision see: Inghams Enterprises Pty Ltd v Lynch  NSWWCCPD 70 (17 December 2013)