25 year gap no barrier to hearing loss liability
Even though an employee had last worked with an employer in 1991 and had several employers since, the NSW Workers’ Compensation Commission has held an employer liable for a hearing injury claim lodged in April 2015 seeking a lump sum amount as well as hearing aids.
Facts of the case
Mr Noel Parsons worked at Qantas between 1954 and 1991 in a number of mainly white collar roles. Aged 79, he lodged a claim for workers’ compensation in April 2015 for the hearing injuries and loss he claims he suffered as a result of being exposed to high noise levels at his airport workplace.
Rejecting the claim, while Qantas agreed that much of Mr Parsons work took place in a noisy airport environment, they countered their former employee had a need under the NSW Workplace Injury Management and Workers’ Compensation Act 1998 (the Act) to make his claim within 6 months of sustaining his injury or no later than 3 years if the initial 6-month limit had been missed due to ‘ignorance, mistake, absence from the State or other reasonable cause.”
Mr Parsons appealed this rejection of his claim.
Finding
The Commission accepted that while the former employee had experienced hearing loss symptoms around the time of leaving Qantas in 1991, he had been unaware of his injury until March 2015 when he sought appropriate medical advice. This allowed his claim to come with the terms of s.261(6) of the Act which redefines the date of an injury to that when the injured worker first becomes aware of the injury i.e. 2015 rather than 1991.
Accordingly, the Commission ordered the former employee’s degree of permanent impairment be assessed by an approved specialist.
Tips for employers
This case provides a timely warning to all employers about their exposure to expensive claims from ex-employees arising from WHS issues. Apart from hearing loss claims, it is expected that future cases may find employers liable for many other injuries incurred by former employees, including:
Skin cancers from sun exposure;
Back and lumbar problems from heavy lifting;
Psychological issues from workplace stress, bullying
This makes it even more important for employers to ensure they maximise their efforts to manage WHS matters within their workplace. If you need a WHS audit of your workplace and your potential future liabilities, feel free to contact us for advice and guidance.
Parsons v Qantas Airways Limited [2016] NSWWCC 197 (18 August 2016)
