89Further diminution of hearing

89 Further diminution of hearing S. 89(1) amended by No. 102/2004 s. 15(1). (1) In this section and sections 88, 91 and 98C— S. 89(1) def. of *Compen-sation law* inserted by No. 102/2004 s. 15(2). ***Compensation law*** means this Act, the **Workers Compensation Act 1958** or any other workers compensation law of the Commonwealth or a State or Territory of the Commonwealth; ***further injury*** means a further loss of hearing in respect of industrial deafness after a worker has on one or more occasions suffered a prior injury; S. 89(1) def. of *prior hearing loss* inserted by No. 102/2004 s. 15(2). ***prior hearing loss*** means a loss of hearing for which a worker has received compensation under a Compensation law for loss of hearing; ***prior injury*** means industrial deafness for which the worker has received or become entitled to receive compensation for loss of hearing. S. 89(2) amended by No. 102/2004 s. 15(3)(a)(b). (2) Subject to subsection (3A), a worker who suffers a further injury shall be entitled to receive in respect of the further injury, in addition to any other compensation payable under section 88, compensation in accordance with section 98C(3A), being compensation referrable to a percentage calculated in accordance with subsection (3) of the amount that would have been payable for a total loss of hearing. (3) The percentage shall be the difference between— S. 89(3)(a) amended by Nos 102/2004 s. 15(4)(a), 80/2010 s. 87(2)(a). (a) the total percentage of the diminution of hearing in respect of industrial deafness from which the worker was suffering immediately after the further injury in respect of which the claim is made; and Note to s. 89(3)(a) inserted by No. 28/2005 s. 17(1). The percentage NAL loss is to be determined in accordance with section 91(4). The percentage NAL loss is then converted in accordance with section 91(3). S. 89(3)(b) amended by Nos 102/2004 s. 15(4)(b), 80/2010 s. 87(2)(a). (b) the total percentage of the diminution of hearing in respect of industrial deafness immediately after the prior injury or prior hearing loss or in the case of more than one prior injury or prior hearing loss the latest of the prior injuries or prior hearing losses. Note to s. 89(3)(b) inserted by No. 28/2005 s. 17(2). The percentage NAL loss is to be determined in accordance with section 89(3C). The percentage NAL loss is then converted in accordance with section 91(3A). S. 89(3A) inserted by No. 102/2004 s. 15(5), amended by No. 80/2010 s. 87(2)(b). (3A) Despite anything to the contrary in this Act, a worker who suffers a further injury is not entitled to compensation under this section or section 98C unless the worker has a diminution of hearing assessed as a binaural loss of hearing of at least 10 percent NAL resulting from the further injury and any prior injury or prior hearing loss. S. 89(3B) inserted by No. 102/2004 s. 15(5). (3B) The total percentage referred to in subsection (3)(a) is to be determined in accordance with section 91(4). S. 89(3C) inserted by No. 102/2004 s. 15(5). (3C) The total percentage referred to in subsection (3)(b) is to be determined by reference to— (a) if a percentage has been determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory, that percentage; or (b) in any other case, the percentage which having regard to the medical evidence available is determined to be the equivalent of the percentage that (as nearly as can be estimated) would have been determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory. S. 89(3D) inserted by No. 102/2004 s. 15(5). (3D) If a worker disputes the total percentage referred to in subsection (3)(b) as determined in accordance with subsection (3C), the Authority, self-insurer or a court must refer the question of what is the amount of the total percentage referred to in subsection (3)(b) as a medical question to a Medical Panel for an opinion. (4) For the purposes of this section the register kept under section 90 shall be taken into account. S. 89(5) inserted by No. 107/1997 s. 24, repealed by No. 102/2004 s. 15(6).