Decision #43/03 - Type: Workers Compensation
Preamble
A non-oral file review was held on March 27, 2003, at the claimant's request.Issue
Whether or not the worker is entitled to a Permanent Partial Disability award for noise induced hearing loss.Decision
That the worker is not entitled to a Permanent Partial Disability award for noise induced hearing loss.Decision: Unanimous
Background
In 1987, the claimant filed a hearing loss claim with the Workers Compensation Board (WCB) for hearing difficulties that he related to his employment activities over the years.On March 3, 1988, the claimant was informed that his hearing loss claim had been accepted by the WCB and that the WCB would pay for any reasonable costs associated with a hearing aid if one was required. The claimant was further advised that as his hearing loss did not fall into the rateable range, he was not entitled to a disability award.
In July 2002, an audiogram was submitted by a hearing center on behalf of the claimant. On December 2, 2002, the claimant contacted the WCB to discuss his claim and questioned whether or not he was due any benefits due to his hearing loss.
In a response by primary adjudication dated December 9, 2002, the claimant was advised that a WCB ear, nose and throat consultant had reviewed his case. The consultant noted that the claimant's hearing loss in his right ear was 25 decibels and his hearing loss in the left ear was 35 decibels. His condition, therefore, did not qualify for a permanent partial impairment award. The adjudicator also noted that the claimant retired from the workforce in 1987. As he was no longer exposed to noise in the workplace, no further consideration could be given to his entitlement of an impairment award in the future. On December 30, 2002, the claimant appealed the decision to Review Office.
On February 24, 2003, Review Office determined that the claimant was not entitled to an impairment award for his noise induced hearing loss. Review Office indicated that it and the Appeal Commission must adhere to the policies of the WCB. While it was recognized that the claimant had lost some of his hearing due to noise exposure in the workplace, it remained below the threshold level for which pensions were granted. Review Office was therefore unable to award a pension under the rating schedule adopted by the WCB for the rating of all permanent impairments including impairment for noise induced hearing loss. On February 17, 2003, the claimant disagreed with Review Office's decision and a non-oral file review was arranged.
Reasons
WCB policy in effect at the time of the claimant's noise induced hearing loss claim in 1987 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 over the four frequency levels and averaged to be 25 decibels in his right ear and 35 decibels in his left ear. Inasmuch as the minimum requirements of applicable WCB policy have not been met, the claimant is therefore not entitled to a permanent partial disability award for his noise induced hearing loss. Accordingly, the claimant's appeal is hereby dismissed.As an aside, the claimant advanced the argument that "If the Government criteria for hearing loss compensation with the DVA is 20% in each ear, then it should be the same for workers." With all due respect to the claimant's reasoning, we must point out that the Appeal Panel's jurisdiction does not extend beyond the provisions of The Workers Compensation Act. Section 60.8(6) of the Act states: "The appeal commission is bound by the policies of the Board of Directors." Consequently, we can not employ the DVA rating schedule as we are legislatively directed to apply WCB policies.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of May, 2003