We have been advised that the only way to protect a company from an industrial deafness claim is if a new employee who is shown to have hearing loss in their pre-employment medical then makes a claim against their previous employer? Therefore, the pre-employment medical itself is not a baseline which will protect us again an industrial deafness claim as we would still be the last employer. Is this correct? If so, is it legal to then ask a potential new employee to make a claim against their previous employer? Ultimately, it would damage the employer-employee relationship from the outset.
Even if a worker’s injury was due to previous employment, a new employer may still be liable to compensate that worker if his/her work with the new employer is a significant contributing factor to the aggravation, exacerbation or deterioration of their injury.
In the case of industrial deafness, determining whether a new employer is the last employer for the purpose of a compensation claim turns on whether the tendencies, incidents or characteristics of that employment were the type to cause the injury. In other words, a worker does not have to prove that their new employment in fact caused, aggravated or exacerbated their hearing loss. Rather, all that needs to be established is that the last possible day that damage to the worker’s hearing could have occurred happened in their new employment.
A new employer may protect itself from an industrial deafness claim by keeping records of pre- and post-employment medicals. Where a new employer has a pre-employment audiogram confirming the extent of hearing loss before the worker commenced employment, this will be taken into account in deciding liability of that new employer. When a post-employment medical has taken place, this can help an employer to demonstrate that the worker’s hearing loss or exacerbation or aggravation of deafness was not caused by his/her employment with them.
On the question of asking a prospective employee to make a claim against their previous employer, making a work cover claim is a workplace right that lies solely in the employee’s discretion. A new employer has no right to force a prospective employee to make a claim against their previous employer, and it is unlawful for an employer to refuse to offer a job to a prospective employee because that employee has an entitlement to a workers compensation claim.