The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 27, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In August 2003, the claimant submitted a hearing loss claim to the Workers Compensation Board (WCB) for "gradual" hearing loss difficulties that he related to his employment activities starting in 1948. Medical information on file consisted of an audiogram dated July 22, 2003.

On October 8, 2003, primary adjudication informed the claimant that his claim had been denied. It was noted that the claimant had an extensive farming history and that farming was a non-compulsory industry and was not covered by the WCB. In addition, primary adjudication was unable to confirm the claimant's noise exposure with the employers that he listed on his claim form. The employers were either no longer in business or the businesses did not open until the late 1980's. In November 2003, the claimant appealed the decision to Review Office.

In a letter dated December 8, 2003, the Review Office advised the claimant that no change could be made to the decision to deny his claim. Review Office noted that the WCB had no way of confirming the claimant's employment and noise exposure up to half a century ago. On February 16, 2004, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

“Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections.”

In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease

and as a result of which a worker is injured.”

This appeal involves a claim for gradual hearing loss, which purportedly occurred between the 1940’s and 1960’s. WCB policy 44.20.50.20.01 applies to claims arising from accidents on or before March 31, 2000. The policy states very clearly, in part, as follows:

“For a claim to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half).”

Section 60.8(6) of the Act prescribes that the Appeal Commission is bound by the policies of the Board of Directors. In the particular case at hand, it would be a virtual impossibility to confirm the necessary exposure to noxious noise. Regrettably, the

worker’s evidence at the hearing does not satisfy the above criteria and therefore his claim is not acceptable. Accordingly, the worker’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 15th day of June, 2004