The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 21, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day and again on June 10, 2004.

Issue

Whether or not the effective date of the claimant's permanent partial disability award should be May 12, 2003.

Decision

That the effective date of the claimant's permanent partial disability award should be May 12, 2003.

Decision: Unanimous

Background

The worker filed a hearing loss claim with the Workers Compensation Board (WCB) on November 25, 2002. The worker noted that he first became aware of a hearing problem 10 years ago and that his hearing loss came on gradually. The claimant said he worked at a bakery and was exposed to "utility operating machinery" 8 hours per day from March of 1977 to July 2000.

Initial medical information consisted of an audiogram report dated August 21, 2001 and a report from a Hearing Instrument Specialist dated January 6, 2003. The specialist commented that the audiogram test results revealed a bilateral to severe hearing loss. Audiometric records that were submitted by the worker's accident employer showed that testing had been carried out in the workplace from November 1986 until November 2, 1998.

Following review of the file information, the WCB's ear, nose and throat (ENT) consultant referred the worker for additional testing. A report from the audiologist dated May 29, 2003 diagnosed the worker with moderate sensorineural hearing loss bilaterally.

On July 24, 2003 the worker was advised that he was entitled to an 11.3% permanent partial impairment award for his hearing loss with the effective date of May 12, 2003.

On January 12, 2004, a worker advisor, acting on behalf of the worker, submitted that the effective date of the worker's impairment should be changed to 1986 as screen/audiogram results from 1986 indicated signs of noise induced hearing loss.

In a decision dated January 23, 2004, the Review Office concluded that the effective date of the worker's impairment award was May 12, 2003 which is when the worker was formally tested by a certified audiologist under controlled conditions. Review Office stated, in part, "…It has never been the practice of the WCB to utilize screening audiograms conducted on an annual basis through an employer's noise conservation program for the purpose of rating a hearing loss." On February 27, 2004, the worker advisor appealed Review Office's decision of January 23, 2004 and a non-oral file review was arranged.

Following its review on April 21, 2004, the Appeal Panel requested additional information from the WCB's ENT consultant with respect to hearing loss screening tests in the workplace. A response from the consultant was later received and was forwarded to the interested parties for comment. On June 10, 2004, the Panel met to further discuss the case and considered a submission from the worker advisor dated June 1, 2004.

Reasons

In arriving at our decision, we considered the full claim file including the written submissions made on behalf of the worker by the worker advisor. The employer did not participate in this appeal. We also received further information as noted in the background.

The issue before us was whether or not the effective date of the worker's permanent partial disability award should be May12, 2003.

For the worker's appeal to succeed, we must find that the worker's permanent partial disability can be rated and established at a date prior to May 12, 2003. We were not able to make this finding. We acknowledge there is clear evidence that the worker's hearing loss began before May 2003. However; we find there is no reliable evidence for the purpose of rating the worker's hearing loss award until the worker was tested by a certified audiologist on May 12, 2003. Accordingly we find that the effective date has been properly established as May 12, 2003.

Worker's Argument:

The worker's argument, in a nutshell, is that his loss of hearing began long before May 12, 2003. He notes there is evidence on file to support that his noise induced hearing loss was present before May 12, 2003. He also notes that the WCB has recognized that the loss pre-dates May 12, 2003 by establishing the date of accident as November 2, 1986. In the original submission to the Appeal Commission the worker's representative suggested that "with the establishment of the accident date being 1986 then [the worker's] hearing loss impairment/disablement date should also be established as 1986." In a subsequent submission the worker's representative suggested that the effective date for rating purposes should be 1992.

The Evidence:

This worker received audiometric testing every year commencing in 1986 as part of a workplace screening program. The audiometric record for this worker was provided to the WCB. It demonstrates that the worker experienced a hearing loss while working for this employer. The audiometric tests were conducted by a technician and not a certified audiologist. After filing his claim with the WCB, the worker was tested by a certified audiologist. The tests were extensive and confirmed that the worker had a significant hearing loss.

Applicable Law and Policy:

This claim was adjudicated under the Workers Compensation Act as it existed prior to January 1, 1992 (the former Act.) Under subsection 1(12) of the former Act, the date of the worker's accident was deemed to be November 2, 1986. This is the date of the worker's first workplace screening audiogram.

The worker's hearing loss is a permanent partial disability and accordingly he is entitled to a permanent partial disability award payable under Subsection 40(1) of the former Act. This subsection does not address the commencement date nor amount of the worker's hearing loss award. In hearing loss claims, the hearing loss is not always rateable as of the date of the disablement. The process on how to set the date of the permanent impairment award has been established by the WCB.

The WCB Board of Directors has made policies for dealing with permanent impairments and hearing loss claims which are applicable to this case, and which we are bound to follow.

What we must address, is what medical evidence is available to allow us to establish with confidence, a date and percentage award that accurately reflects the claimant's hearing loss. We find that Policy No. 44.20.50.20.01 applies to this case, as it deals with hearing loss claims before March 31, 2000. This policy is, however, silent on the effective date for the hearing loss award and the type of evidence or testing required for rating purposes. It does not impose the requirement for a certified audiologist's report. On the other hand it does not provide that workplace audiometric screening results are sufficient for rating purposes.

There is also a decision of the WCB Board of Commissioner's (Commissioners), the forerunner to the current Board of Directors, which is relevant to this claim. On May 13, 1987 the Commissioners confirmed that it was no longer necessary for workers making hearing loss claims to attend the E.N. T. department of the Health Science Centre. The Commissioners agreed that "…it is appropriate to accept the results of audiograms which have been taken in the provincial regional hearing center." Pursuant to the 1987 Commissioners' decision, the WCB has required testing by certified audiologists for rating hearing loss awards, until a new policy was established in 2000 confirming the practice.

We also note that the current version of Policy 44.20.50.20 provides that "…In order to determine the effective date of the impairment for hearing loss, the audiogram must be done by the certified audiologist…." While we found that this policy does not apply to this case, it offers a clear indication of the Board of Directors' intent that for rating purposes certified audiologists reports are required.

Conclusion:

Because the policy applicable to this case is silent on the type of test needed for rating purposes, we sought information on the difference between screening audiograms such as those performed in this case and audiograms performed by a certified audiologist. We asked the WCB's ENT consultant to explain the difference between workplace screening audiograms and audiograms performed by a certified audiologist. The WCB's ENT consultant advised

"A screening audiogram is just that, screening. It is conducted by a technician, who has minimal training in audiometric assessment to identify any change or decrease in workers' hearing. It is not diagnostic as to the etiology of the hearing loss. Once an abnormality has been identified in the screening audiogram, the worker is referred to an otolaryngologist or a certified audiologist for further assessment and testing to diagnose the nature of the hearing loss. Screening audiograms test only for air conduction thresholds.

Audiograms performed by a certified audiologist are or (sic) complete and include the following:

a. Pure tone air conduction thresholds
b. Pure tone bone conduction thresholds
c. Speech reception thresholds
d. Speech discrimination scores
e. Impedance eudiometry

Based on the test results, and whether they are in agreement or not, the diagnosis of noise-induced hearing loss can be established and PPI calculations are made based on Bone Conduction Thresholds."

We also asked the WCB's ENT consultant whether screening audiograms performed in the workplace are considered reliable for the purposes of a permanent partial impairment rating. He replied that they were not reliable for the following reasons:

a. "The worker does not abstain from noise exposure for 48 hours prior to the testing. Therefore the degree of the hearing loss would be exaggerated because of temporary threshold shift.

b. The person conducting the test has minimal training in testing techniques and methods of identifying the persons who are trying to exaggerate their hearing loss.

c. The audiometers and sound booths used for testing are rather simple and cannot be compared to ones used by certified audiologists."

We are satisfied that reliable evidence is required to establish a permanent partial impairment rating. We accept the advice of the ENT consultant that workplace screening audiograms are not reliable and accordingly find that testing by a certified audiologist is required for the purposes of establishing and rating this worker's hearing loss award.

In this case, the first reliable evidence is that of the certified audiologist who tested the worker on May 12, 2003. This is the appropriate date of the worker's permanent partial disability award.

The worker's appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of June, 2004