Hearing loss: a valid compensation claim?

The case of Knoetze v Rand Mutual Assurance 2022 is interesting to discuss for several reasons. Firstly, it involves a claim for noise induced hearing loss (NIHL), secondly it is a workers’ compensation claim, thirdly it involves a decision by a tribunal, and finally it involves a decision by the High Court.

Conceptually, hearing loss does not fit the mould of a workers’ compensation claim. Broadly speaking, workers’ compensation was introduced to provide compensation to employees injured while at work. It was a mechanism to internalise legitimate costs by including them as part of the production price. Later, occupational diseases were included despite not fitting the notion of an accident. Legislatively, the Gordian Knot was cut by simply deeming an occupational disease to be an accident. This fiction has worked, in practice.

Over time, other concerns have emerged, along with questions as to whether these should be accommodated. One example is Post Traumatic Stress Disorder. In the mainstream of law, this question arose when people witnessed accidents and were close enough to be exposed to them. The courts decided that these claims could be accommodated under very limited circumstances. The question eventually arose as to whether these claims could also be accommodated in the case of workers’ compensation and, if so, whether to class them as an accident or occupational disease.

Then came NIHL; clearly it would be difficult to regard hearing loss as being caused by an accident, although not impossible under limited circumstances. For example, if an employee were to be exposed to an explosion and suffer hearing loss, it could be argued the loss was caused by an accident (the explosion). Hearing loss that developed gradually, however, was a different issue. The question then was whether an accident could occur gradually over time … 

So, once again, the Gordian Knot was cut and NIHL was included as being compensable. The best fit would be as a disease but, in law, the correct use of words is paramount, and it is difficult to classify hearing loss as a disease. Linguistically this is a problem, yet it was included.

Knoetze v Rand Mutual Assurance

Claims for occupational disease fall into two categories: those where the diseases are a natural consequence of the occupation and those where they are not. Therefore, if someone works with lead and suffers a lead-related health problem, it is reasonable to link that problem to working with lead. If, on the other hand, an employee does not work with lead and suffers a lead-related disease, but can prove a link, they can still receive workers’ compensation. The workers’ compensation schemes of various countries use a range of presumptions to link different diseases to employment.

In the Knoetze case the employee suffered hearing loss rather suddenly, but the circumstances were atypical. Usually hearing loss happens gradually, arising from exposure to excessive noise in the working environment. Rapid hearing loss could arise, but this is usually traceable to an accidental event.

The employee’s workers’ compensation claim was dismissed by Rand Mutual Assurance (RMA), the company responsible for paying workers’ compensation claims for people employed in mines and works (as defined in legislation). 

The tribunal

One of the benefits of workers’ compensation is that claims can be dealt with expeditiously at minimal cost to the injured employee. Most claims can be dealt with in a reasonable timespan. This is one of the main advantages that workers’ compensation has, in theory, over common law liability or liability in tort or delict. However, in practice we cannot say that this is always achieved; administrative inefficiencies can, and do, arise.

Court cases, on the other hand, can take decades to resolve and are very expensive. Problems associated with mainstream litigation, such as cost and the time it takes to finalise cases, have historically served as barriers to compensation for most injured workers.

If the insurer repudiates a claim, the matter can be referred to a tribunal, as happened in this case. Tribunals have become very common in the modern administrative state. The tribunal dealt with the matter and concluded the claim had been validly repudiated. In other words, the tribunal confirmed the decision of RMA.

The High Court

The matter was then taken to the High Court, where workers’ compensation matters have been rare – hence why this case is of interest. When a court of law considers a matter from a tribunal, it does not act as a trial court, nor does it deal with the matter de novo (from the beginning). It has very limited powers of appeal as set out in the legislation itself. In this case the appeal can arise regarding the “interpretation of an act or any other law”.

The court considered the legislation’s wording. The tribunal had upheld RMA’s repudiation of the claim, which was made on the basis that the “rapid deterioration in hearing is not indicative of noise induced hearing loss”. In the end the issue hinged on the interpretation of the legislation regarding the presumption contained in the Compensation for Occupational Injuries and Diseases Act. The question was whether the case fell within the presumption or not.

The court concluded that the matter did fall within the presumption. In coming to this conclusion, several secondary documents involving hearing loss were considered. In the end, however, it was the wording of the Act itself which governed the matter.

The court concluded that Knoetze had proven the claim and was entitled to compensation. It set aside the decision of the tribunal and referred the matter back to determine the degree of compensation payable in terms of the Act.

This conclusion is not surprising if one considers the general purpose and spirit of workers’ compensation. Provisions of workers’ compensation legislation are interpreted liberally so that as many claims as possible are accommodated if they arise in the course and scope of employment.

Therefore, courts do not adopt strict and narrow interpretations when it comes to claims that arise in connection with work. This is because workers’ compensation is characterised as social insurance, where public policy objectives override commercial considerations and other strict interpretations of the enabling legislation.

In short, the primary objective of workers’ compensation is to facilitate access to compensation for injured workers as much as possible, rather than hinder such access.