The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on February 27, 2003, at the request of the claimant. The Panel discussed this appeal on February 27, 2003 and again on March 25, 2003.

Issue

Whether or not the worker is entitled to a permanent partial disability award based on the examination of June 28, 1999.

Decision

That the worker is not entitled to a permanent partial disability award based on the examination of June 28, 1999.

Decision: Unanimous

Background

In August 1999, the claimant submitted a hearing loss claim to the Workers Compensation Board (WCB) in which he related his hearing loss difficulties to his employment history in the mining industry. The claim was accepted by the WCB as a no time loss claim.

Medical information on file showed that the claimant had undergone audiometric testing on June 28, 1999. The findings revealed that the claimant's average hearing deficit in his right year was 26.25 decibels and in his left ear was 32.5 decibels.

Following a consultation with a WCB ear, nose and throat specialist, primary adjudication determined that the claimant did not have an impairment award based on the criteria outlined in the WCB's Permanent Impairment Rating Schedule. The claimant was advised of this decision in a letter dated January 18, 2000. On February 14, 2000, the claimant appealed the decision to Review Office.

In a decision dated February 18, 2000, Review Office referred to the Permanent Impairment Rating Schedule that had been adopted as part of WCB policy effective October 1, 1996. The schedule stated that in order for a worker to be entitled to an award, the average of the four speech frequency levels must be 35 decibels in each ear. As the claimant's hearing deficit was only 26.25 decibels in the right ear and 32.5 decibels in the left ear, Review Office confirmed that the claimant was not entitled to an impairment award. On January 7, 2003, the claimant appealed Review Office's decision and a non-oral file review was then arranged.

On March 3, 2002, the Appeal Panel advised the claimant that additional information was required from the WCB concerning an amendment to the Permanent Impairment Rating Schedule dealing with hearing impairment. On March 6, 2003, the claimant was provided with copies of Board Order No. 6/00, WCB Policies 44.90.10 and 44.90.10.01 that were obtained from the WCB and he was asked to provide comment. On March 25, 2003, the Panel met further to render its final decision on the issue under appeal.

Reasons

WCB policy in effect at the time of the claimant's noise induced hearing loss clearly establishes that in order for a worker to be entitled to a hearing loss impairment award the average of the four speech frequency levels must be 35 decibels in each ear. In this particular case, the claimant's hearing deficit has been tested to be 26.25 decibels in his right ear and 32.5 decibels in his left ear. Therefore the claimant is not entitled to a permanent partial disability award for his hearing loss. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of April, 2003