Decision #146/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 12, 2003, at the request of the claimant.

Issue

Whether or not the claim for noise induced hearing loss is acceptable.

Decision

That the claim for noise induced hearing loss is not acceptable.

Decision: Unanimous

Background

In December 2000, the claimant filed a claim with the Workers Compensation Board (WCB) for hearing loss difficulties in his right ear which he related to the nature of his employment activities as a mechanic in a truck repair shop.

On August 3, 2001, a WCB adjudicator spoke with the claimant to gather additional details concerning his claim. The claimant advised the adjudicator that he had been employed with the accident employer for 26 years and has worked in noisy environments ever since. The claimant felt that his use of impact power tools in awkward positions close to his head led to his hearing loss difficulties in his right ear. The claimant also commented that he only started to wear hearing protection during the last 10 years.

Medical information on file consisted of screening audiograms from 1996 through to 2000. The WCB also arranged for the claimant to undergo further testing which included a complete audiological assessment and an MRI examination on December 17, 2001.

Following consultant with a WCB ear, nose and throat consultant, the claimant was notified on August 27, 2002 that his claim for hearing loss had been denied. It was determined that the claimant's hearing in his left ear was normal and that the hearing loss in his right ear was not typical of noise induced hearing loss. On December 29, 2002, the claimant disagreed with the decision and the case was forwarded to Review Office for consideration.

In a decision dated January 10, 2003, Review Office noted that the claim had been reviewed by the WCB's ear, nose and throat consultant who was of the opinion that the results of audiometric testing confirmed that the claimant's hearing loss in his right ear, was not suggestive of a loss that was due to noise exposure. Also, there had been no rationale to explain why the claimant's loss of hearing only involved his right ear and not the left. Based on the available information, Review Office concluded that the claimant's hearing loss was not due to exposure to noise in the workplace. On February 7, 2003, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The worker in this case asserts that the hearing loss in his right ear has been caused by exposure to noise at his workplace, over an extended period of time. His claim has been denied twice by the WCB, at the adjudicative and review office levels. He has appealed this decision to the appeal commission.

Sections 1(1) and 4(1) of The Workers Compensation Act set out the circumstances under which claims can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.Section 1(1) extends the definition of "accident" to include an "occupational disease," which is the category under which long term hearing loss cases are adjudicated. The term "occupational disease" is defined as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation;

or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than an acute reaction to a traumatic event.

For the worker's claim to be successful, we would have to find, on a balance of probabilities, that his hearing loss injury was caused by the workplace - that it arose out of and in the course of his employment. We were not able to make that determination, and our reasons follow.

The worker's evidence is that he had worked as a heavy duty mechanic with his employer for over 26 years, and that this was a noisy workplace, particular with his use of impact tools. He notes that hearing protection was only introduced in the workplace in the past few years. He started receiving audiometric testing in 1996, and all tests since that time showed a substantial loss of hearing in his right ear. In 2000, the worker submitted a claim, in the belief that this loss of hearing was due to his workplace.

Hearing loss can have work-related causes, and it can also occur due to non-occupational factors. In this case, a WCB ear, nose and throat consultant reviewed the worker's hearing tests on July 27, 2001, and noted that the hearing loss demonstrated in those tests "is not typical of noise exposure."

As this particular pattern of hearing loss was considered to be unusual, additional testing was ordered by WCB, including an ABR test and an MRI scan. These tests also ruled out acoustic (noise-based) factors, leading the WCB Consultant to conclude on August 20, 2002, that hearing loss was "not typical of NIHL [noise-induced hearing loss]." We note that the other causes under consideration, such as a retrocochlear pathology, have not been considered to be work-related by any of the medical specialists who have been involved in this matter.

In order for this claim to be successful, we would have to find the worker's hearing loss to have to been "noise-induced" from his workplace. In this case, we find that the medical evidence does not support our making that link, between the worker's hearing loss and his workplace, on a balance of probabilities, but points instead to an "ordinary disease of life." For these reasons, we find that the worker's claim for noise-induced hearing loss is not acceptable.

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 9th day of December, 2003

Back