Decision #93/00 - Type: Workers Compensation

Preamble

A non-oral file review was held on August 10, 2000, at the request of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that he was entitled to an impairment award of 9.2%.

Issue

Whether or not the claimant is entitled to an impairment award greater than 9.2%.

Decision

That the claimant is not entitled to an impairment award greater than 9.2%.

Background

In 1974 the claimant filed a claim for hearing loss difficulties which he related to his past employment activities over the years. Following a thorough investigation into the case, the claim was accepted by the Workers Compensation Board (WCB) and the claimant received a 6.4% Permanent Partial Impairment award.

In October 1999, the WCB was advised that the claimant was experiencing further hearing loss difficulties. The WCB collected further information concerning the claimant's employment history, noise exposure and updated audiological reports.

On December 23, 1999, the claimant was advised that his case had been referred to the WCB's healthcare branch where it was determined that he had further hearing loss deterioration compared to his previous assessment in 1974. The level of hearing impairment was now rated at 10.8% and would be reduced to 8.0%, which reflected his exposure to noise in the Province of Manitoba. In a subsequent letter dated January 10, 2000, the claimant was advised that his additional impairment had been rated at 1.6% (8.0% minus 6.4% equalled 1.6%) and that he would be entitled to either a monthly pension of $43.09 or a lump sum settlement of $3,777.28. On January 26, 2000, the claimant appealed the amount of his pension award to Review Office.

In a decision dated February 25, 2000, the Review Office confirmed that the increased impairment of 1.6% for 8% of total impairment was correct and that the total value of the lump sum settlement of $3,777.28 was also correct. The Review Office based its decision on WCB policy and the WCB's permanent impairment schedule.

On May 16, 2000, a worker advisor requested Review Office to reconsider its decision of February 25, 2000. The worker advisor indicated that based on a 1974 WCB policy in effect on the date of the accident, the claimant should be entitled to a 10.8% impairment rating minus the 4.2% impairment rating which he had already received without any discount for non-Manitoba employers or non-covered industry. The worker advisor was of the position that the increased impairment of 1.6% was not correct. The worker advisor indicated that the claimant should be entitled to an increased permanent partial disability award of 6.6% (10.8% - 4.2%). Enclosed with the submission was Board Order No. 81/85 entitled Noise Induced Hearing Loss.

On May 26, 2000, Review Office determined that the increased impairment of 1.6% for 8% total impairment was not correct and that the claimant was entitled to an increased impairment award of 2.8% for a total impairment of 9.2%. In its decision, Review Office indicated the following:

  • the worker advisor did not account for the increased impairment rating of 2.2% awarded to the claimant on November 18, 1975. Prior to the December 17, 1999 impairment assessment the claimant's total impairment rating was 4.2 + 2.2 = 6.4%. Both ratings were converted to lump sum settlements and were paid to the claimant in 1974 and 1975.
  • the 10.8% of total impairment minus 6.4% that the claimant was previously awarded provided a difference or increase in the impairment of 4.4%.
  • in determining whether the claimant was entitled to an increased impairment award of 4.4%, Review Office considered a WCB directive approved May 29, 1985 - Noise Induced Hearing Loss. Review Office stated that this directive rescinded a WCB policy that was in effect when the claim was initially established in 1974. In 1974, the policy in effect included payment for exposure to noise outside the Province of Manitoba and for non-covered industries. This was not the case now according to Review Office. Review Office made reference to the WCB policy that came into effect on May 29, 1985.
  • the claimant was exposed to 33 years of noxious noise from 1952. Twenty-eight (28) of those years were exposure in Manitoba. Therefore 28 divided by 33 gives a total percentage of exposure in Manitoba of 85%. The claimant's total impairment therefore is 85% of the total assessed impairment rating of 10.8%.
  • the claimant already received 6.4% of his 9.2% impairment. The claimant is therefore entitled to an increased award of 2.8% of total.

On June 23, 2000, the Worker advisor appealed Review Office's decision of May 26, 2000. The worker advisor submitted that the claimant should be entitled to the total impairment award of 10.8% for his hearing loss, less the amounts he had already received from the WCB based on the provisions of the WCB Noise Induced Hearing Loss Policy of September 28, 1973. On August 19, 2000, a non-oral file review was held at the Appeal Commission.

Reasons

The Appeal Panel is of the unanimous opinion that the decision of the WCB Review Officer on this matter was correct and that the appropriate impairment award on this file should be 9.2%. This amount represents the claimant’s impairment related to noise induced hearing loss while employed in the Province of Manitoba.

The argument of the claimant’s representative was that the Review Officer ought to have taken into account the claimant’s employment outside of Manitoba and his employment in a non-covered industry when calculating the award. This argument was made on the basis that WCB policy in effect at the time that the hearing loss took place (a September 28, 1973 policy) included payment for exposure to noise outside the Province of Manitoba and for non-covered industries. The representative argued that if this had been taken into account the appropriate impairment award would be 10.8% which included all noise exposure experienced by the claimant wherever he had worked.

With all due respect to the very able arguments of the claimant’s representative, this Panel cannot agree with her logic. It is correct that board policy in effect as at October 1, 1973 included the following guidelines:

“Where the workman has been exposed to noxious noise with more than one employer the claim costs are to be charged on a pro rata basis according to the periods of exposure

(a) To the employer of record, (i.e. the last employer in Manitoba where the workman was exposed to noxious noise), and

(b) The balance to the Second Injury Fund.”

The effect of these guidelines was that workers would be provided with benefits for noise induced hearing loss regardless of where the noise exposure and resultant hearing loss may have originated. This could consequently include coverage for loss incurred while the worker was employed outside the Province of Manitoba or in a non-covered industry. These guidelines are clearly outlined in a document entitled “Board Policy – Claims – Noise Induced Hearing Loss Claims” approved at a meeting of the Board on September 28, 1973.

However, this policy was rescinded by Board Order No. 81/85 approved May 29, 1985 and is outlined in a Board Directive entitled Noise Induced Hearing Loss. According to this policy a motion was passed as follows:

1. “That Board policy dated September 28, 1973, relative to noise induced hearing loss claims be rescinded, and;

2. That for adjudication purposes, claims for exposure to noxious noise be considered and paid on the basis of the claimant’s exposure with employers who are or had been registered in Manitoba; …

5. That where the claimant has an established hearing loss prior to commencing employment in Manitoba industry, the claim is only to be for any increased impairment caused by exposure to Manitoba employment…

8. That compensation is to be based:

(a) Upon the claimant’s earnings as of October 1, 1973, where a claim had been made on or before that date.

(b) Upon the claimant’s earnings at the time of making the claim if it is made subsequent to October 1, 1973.”

The Panel is satisfied that the above noted policy is the correct one to use in this situation and that based on this policy a calculation of an award using exposure to noise levels outside the Province of Manitoba would not be appropriate. We therefore agree that Review Office correctly applied the appropriate policy in this instance and that the claimant is not entitled to an impairment award greater than 9.2%.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of September, 2000

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