Decision #32/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on March 19, 2003, at the claimant's request.

Issue

Whether or not the worker is entitled to a permanent partial disability award for tinnitus.

Decision

That the worker is not entitled to a permanent partial disability award for tinnitus.

Decision: Unanimous

Background

In 1988, the claimant filed a hearing loss claim with the Workers Compensation Board (WCB) in which he related his hearing loss difficulties to his employment activities as an automotive machinist.

On September 8, 1988, the claimant was advised that his claim for loss of hearing was accepted by the WCB and that the WCB would pay for any reasonable costs associated with hearing aids. The claimant was also advised that his hearing loss did not fall into the rateable range and that he was not entitled to a disability award. In 1995, the claimant was again advised by the WCB that his hearing loss was insufficient to warrant a permanent partial impairment award.

In 1997, the claimant contacted the WCB indicating that he was experiencing tinnitus which was more difficult to cope with than his hearing loss. In a decision dated September 10, 1997, the claimant was advised that the WCB would be willing to accept financial responsibility for reasonable costs associated with the fitting of a tinnitus masker. The claimant was also informed that the WCB was unable to provide consideration for a permanent partial impairment award resulting from a condition of tinnitus as current policy did not allow for an impairment award for this particular complaint.

On November 30, 1998, a WCB adjudicator informed the claimant that based on the results of an audiometric assessment dated August 27, 1998, it was determined that the claimant's average loss of hearing in his right ear was at 24 decibels and the left ear was at 39 decibels. Based on this information, the adjudicator advised the claimant that his hearing loss did not rate for an impairment award.

In December 2001, the claimant contacted the WCB and brought forth several issues for primary adjudication to consider. One of the issues was whether or not the WCB's legislation/policies allow for any recognition of "tinnitus". In a response dated February 18, 2002, a WCB adjudicator advised the claimant that WCB legislation had changed as of April 1, 2000, specifying that the WCB did compensate for tinnitus for accidents on or after April 1, 2000. It did not compensate for accidents prior to that date.

In a further decision dated April 2, 2002, primary adjudication stated, in part, the following:
"Information on file indicates that you are still working and exposed to loud noise in the workplace. As such, you may continue to experience ongoing ringing in your ears and have further deterioration with respect to your hearing. We will continue to monitor your condition and assess any further deterioration in your hearing, as a result of exposure to loud noise at work. No consideration will be given for tinnitus."
On July 19, 2002, the case was considered by Review Office at the claimant's request. Review Office determined that the claimant was not entitled to a permanent partial impairment award with respect to his tinnitus. Review Office indicated that it understood and sympathized with the claimant's concerns. However, the decision to deny an impairment rating for tinnitus must be upheld on the basis of the applicable policy and the lack of recognition of tinnitus as a condition warranting an impairment rating prior to April 1, 2000. Review Office further noted that existing policy did not preclude payment of benefits to the claimant should his tinnitus render him incapable of working. On January 6, 2003, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

As noted in the 'Background' section, this case involves a worker who has suffered hearing loss as a result of prolonged exposure to loud noise in his workplace. His claim for compensation was accepted long ago and benefits have been paid accordingly.

The issue in this appeal is a narrow one: whether or not he is entitled to an impairment rating for tinnitus. There is no question as to whether or not he suffers from tinnitus. That has been acknowledged. At issue is whether or not board policy makes provision for payment of an impairment rating for this condition.

His application for such a rating was denied by the adjudicator, on the basis that policy did not provide for it. This decision was upheld by the Review Office on reconsideration. He then appealed to this commission.

For his appeal to be successful, the Panel would have to determine that his request fits within board policy. We were not able to make that determination.

Our decision was based upon a thorough review of the claims file by each of the panelists, followed by a 'non-oral file review'.

A number of board policies must be considered in deciding this appeal:
  • Board Order No. 81/85, approved May 29, 1985 - This was the policy in effect when the claimant first applied for benefits. It set out the circumstances in which compensation benefits would be paid for 'noise induced hearing loss.' It makes no mention of tinnitus.

  • Board Policy No. 44.20.50.20.01, last updated on February 22, 2000 - This is an update of the above policy. It applies to claims for hearing loss arising from accidents on or before March 31, 2000. It is also silent on tinnitus.

  • Board Policy No. 44.20.50.20, last updated on February 22, 2000 - It applies to claims for hearing loss arising from accidents on or after April 1, 2000. It specifically addresses tinnitus, describing the circumstances in which it would be compensable.

  • Board Policy No. 44.90.10.02, last updated January 31, 2003 -
    This policy incorporates the "Permanent Impairment Rating Schedule", for all decisions. There is no provision for a rating for tinnitus.


  • Board Policy No. 44.90.10.01, last updated January 31, 2003 - This policy incorporates the "Permanent Impairment Rating Schedule", for all decisions. It includes specific changes in respect of hearing loss claims arising on or after April 1, 2000. (My emphasis.) For the first time, there is a provision for a rating for tinnitus, and the payment of a permanent impairment award for that condition.
It is our conclusion that the board policies are quite clear in respect of the issue of the claimant's appeal. A person suffering from tinnitus is entitled to a permanent impairment rating only for claims on or after April 1, 2000. In the case before us, the claim was filed in 1988, for an injury that may have first arisen as far back as 1977.

The panel does not deny that the claimant suffers from tinnitus. We do not deny that this can be a very unpleasant condition. However, pursuant to subsection 60.8(6) of The Workers Compensation Act, we are "bound by the policies of the Board of Directors." Thus, according to board policy, the claimant is not entitled to an impairment rating.

Accordingly, the appeal is dismissed.

In conclusion, we would also note that the Review Office, in its decision, expressed the opinion that, should the claimant's tinnitus become so severe that it prevents him from continuing to work, board policy does not preclude payment of other benefits.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of March, 2003

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