The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 12, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on several occasions, the last one being June 7, 2005.

Issue

Whether or not the worker's Permanent Partial Impairment Award should be reduced by 50%.

Decision

That the worker's Permanent Partial Impairment Award should have been reduced by 50%.

Decision: Unanimous

Background

In June 1997, the worker submitted a claim to the Workers Compensation Board (WCB) for "gradual" hearing loss difficulties that he attributed to noise exposure in the workplace starting in 1951. An audiogram taken on July 7, 1997 revealed bilateral profound sensorineural hearing loss.

Subsequent file records showed that a WCB ear, nose and throat (ENT) consultant referred the worker to an independent ENT specialist to perform additional testing and to comment on the etiology of the worker's hearing loss.

On January 27, 1998, the independent ENT specialist noted that the worker presented with a history of noise exposure for 43 years and was apparently in an accident at work about 25 years ago where he suffered a head injury. After examination of the worker, the specialist found no obvious abnormality and both tympanic membranes appeared intact and mobile. He noted that the recent audiogram results revealed no measurable hearing sensitivity bilaterally. Arrangements were made for the worker to undergo additional testing which included an MRI scan.

An MRI of the brain took place on March 5, 1998. The results revealed no evidence of an acoustic neuroma and no abnormal gadolinium enhancement was identified.

In a letter to the WCB dated March 12, 1998, the independent ENT specialist confirmed that the worker suffered from profound bilateral hearing loss.

In a memo dated April 7, 1998, a WCB adjudicator documented a discussion that he had with the WCB's ENT specialist. The ENT specialist stated "…for an accident to produce the worker's type of hearing loss he would have had to have fractured the temporal bones on both sides of his head." He stated that this was doubtful as there was an indication that the worker missed little time from work. The consultant also commented that the worker's profound hearing loss could be due to a number of things such as maternal measles or perhaps poor formation of the inner ear due to a congenital defect. He stated that there was no way of telling if the worker's present condition was noise related.

On June 19, 1998, primary adjudication advised the worker that his claim for compensation had been denied as there was no medical evidence to confirm that his hearing problems were the result of exposure to noise at the workplace.

In a letter dated June 17, 1998, the independent ENT specialist advised the WCB that "after reviewing the history and clinical findings the hearing loss is characteristic of acoustic trauma and the Compensation Board should consider him for compensation."

Primary adjudication tried to locate previous screening and noise level surveys from the worker's former employers but had no success. On October 6, 1998, the worker was advised that since no additional information was available, the earlier decision to deny the claim would stand. On October 8, 1998, the worker appealed this decision to Review Office.

In a decision dated January 8, 1999, Review Office noted that the worker was now 66 years of age and was retired from his employment. The worker worked between 1956 and 1997 for the railway and in 1951, the worker hit his head on a scaffold plank and later experienced ringing in his ears. The worker stated that he was subjected to loud blasts whenever an employee blew out the steam line in the coach yard. There was no record that the blasts were ever reported to the employer as causing an injury. Review Office noted that the worker got slag in his ear in 1960 although it was not reported which particular ear was involved. The worker also reported that in 1978, he was hit in the head while being dragged under a train.

Review Office stated that the cause of the worker's present state of hearing loss was unlikely attributable to his employment. Review Office had reviewed claims filed by the worker in 1951 and 1996 as well as the current file and was unable to attribute the loss in hearing to either of the prior claims. Review Office stated that there was simply no medical information available to link the hearing loss to these claims or specifically to his overall employment.

On July 4, 2000, a worker advisor, acting on behalf of the worker, asked Review Office to reconsider its decision based on a report dated September 2, 1999, in which the independent ENT consultant stated, in part, that the worker's hearing loss could be accounted for by his work situation and that his loss was due to acoustic trauma.

Prior to considering the appeal, Review Office obtained a statement from the worker dated August 25, 2000 with respect to his hearing loss difficulties over the years. Review Office also spoke with the worker's son and two of his previous supervisors regarding their knowledge of the worker's hearing loss difficulties. The worker was also referred to a medical geneticist, whose report to the WCB is dated November 16, 2001. A report was also received from a DNA Diagnostic Laboratory dated September 25, 2002.

Following several consultations with the WCB's healthcare branch, Review Office determined on October 25, 2002 that the worker's claim for noise induced hearing loss was acceptable and that the worker's impairment rating for his industrial loss of hearing was 15%.

Based on the available evidence, Review Office was satisfied that the worker worked in a noisy work environment for many years in his job but that his profound hearing loss could not be entirely caused by his exposure to noise in the workplace. According to the WCB's Impairment Rating Schedule, the rating for total deafness was 30%. If Review Office was able to attribute the worker's entire loss of hearing to his employment he would be eligible for the full 30%. However, Review Office believed the employer was not responsible for the worker's complete loss of hearing.

Review Office looked at the worker's prior claims which were filed in 1996 and 1951. Neither claim involved an injury to the worker's head or ears that would have been sufficient to have caused the worker's level of profound deafness. Review Office realized that when the worker attended doctors he spoke of having accidents that traumatized his hearing, however, there was no available evidence to support this contention and this could not be factored in when the loss of hearing was rated.

Review Office indicated that it had reviewed the WCB's policy on pre-existing conditions to assist in determining what rating the worker was entitled to for his permanent impairment. "Where there is a pre-existing condition which is deemed to be major, this will be assigned a rating equivalent to 50% of the total combined impairment rating. The rating for complete loss of hearing is 30% and therefore the award has been reduced by 50% in accordance with the policy."

On December 3, 2003, the worker advisor forwarded a completed Appeal of Claims Decision form to the Appeal Commission because he disagreed with Review Office's October 25, 2002 decision. The worker advisor was of the view that the Review Office's decision should be overturned on the grounds that the worker's "hearing loss was caused by exposure to noise in the workplace. There is no appropriate reason to reduce the impairment rating."

On February 12, 2004, an oral hearing took place at the Appeal Commission. After the hearing, the Appeal Panel decided to obtain an opinion from an independent specialist as to the etiology of the worker's hearing loss and an opinion as to what portion of hearing loss was attributable to workplace exposure, acoustic trauma or other factors.

The examination by the independent specialist was carried out on March 30, 2004. In a report dated April 20, 2004, the independent specialist advised the Panel that he wanted to obtain a neurologic opinion prior to completing his final report. The request was granted and the worker was examined by a neurologist on June 8, 2004. The independent specialist then provided the Panel with his final report dated September 30, 2004. On October 8, 2004, all interested parties were provided with copies of the medical reports for comment.

On November 16, 2004, the Panel met further to discuss the case. It was determined at that meeting that the case should be referred back to the WCB to further investigate whether or not there were any specific injuries arising out of and in the course of the worker's employment in or about 1965 and/or 1978 which may have contributed to his present hearing loss difficulties.

Based on the Panel's request, a supervisor from the WCB's occupational disease unit contacted the worker to obtain the names of any witnesses who saw the incident that occurred in 1978 when the worker was dragged under a train.

In a memo to the Appeal Commission dated December 3, 2004, the supervisor noted that he had reviewed the worker's 1965 claim. In 1965, the worker lit an oil-burning stove and sustained facial burns. There was no mention of any difficulties with hearing or ringing in the ears following the incident. With regard to the 1978 incident, the supervisor noted a report from the employer dated December 2, 1978 which indicated that the worker was working on a train changing a regulator when the train moved eight feet. A battery box hit the worker in the back and dragged him eight feet. From a statement obtained from Review Office, the worker indicated 'I was dragged and my butt hit every tie for the length of a car while I had my hard hat on'. The worker indicated that he did not seek any medical treatment following this incident. The supervisor indicated that he was unable to locate any specific injuries which occurred at work that may have contributed to the worker's present hearing loss difficulties.

On January 24, 2005, the WCB provided the worker with its decision regarding his 1965 claim, i.e. that it was unable to establish that the worker sustained any damage to his hearing as a result of the injury. The worker was also instructed to complete a Workers Claim form so that the WCB could adjudicate his 1978 claim. The WCB later received that claim form on March 31, 2005.

In a decision dated April 15, 2005, the WCB advised the worker that it was unable to determine that he sustained any hearing loss as a result of his 1978 accident. The WCB confirmed that the worker was involved in a work place accident on December 2, 1978, but that there was no medical evidence to confirm that the incident had any impact on his loss of hearing.

On March 17 and April 20, 2005, the Appeal Commission provided all interested parties with a copy of the worker's 1965 and 1978 claim files and invited comments. On May 16 and June 7, 2005, the Panel met further to discuss the case and to consider a submission by the worker dated May 10, 2005.

Reasons

The issue which formed the subject matter of this appeal was whether or not the worker's Permanent Partial Impairment Award (PPI) should be reduced by 50%. That award was made in connection with the worker's claim for noise induced hearing loss. Although that claim was acceptable, it was determined, based on all of the evidence by both primary adjudication and Review Office that the worker's impairment rating for his industrial loss of hearing was to be reduced by 50%. The rationale for this reduction was that, based on the evidence, Review Office was unable to attribute the worker's entire loss of hearing to his employment.

At the hearing of this matter, the worker testified that not only did he experience significant exposure to loud industrial noise over the course of his employment but that, in 1978, he had suffered a significant head trauma which, he believed, also contributed to his current state of profound hearing loss.

The worker, however, never filed a claim in 1978 in connection with that head trauma. The Board, therefore, never had an opportunity to investigate or adjudicate the worker's claim in that regard.

At the conclusion of the appeal of this claim, the Panel was of the view that there remained unanswered questions regarding the diagnosis and likely cause of the worker's hearing loss. At the Panel's request, therefore, the worker was seen by an independent specialist.

That specialist, in a report dated September 30, 2004, answered the Panel's questions by advising that in his opinion the worker had profound bilateral hearing loss for all frequencies and that the likely basis for that hearing loss was:

"… significant auditory trauma when he was dragged under a train at work in 1978 … Following this continued noise induced trauma at work caused progressive loss of hearing afterwards."

The specialist also advised that in his opinion the worker had no familial inherited hearing loss and that the possibility of gene mutation leading to hearing loss had not been established.

In reaching his conclusion, the specialist also referred to the opinion of the neurologist to whom he had referred the worker. The neurologist was of the opinion that the head injury which took place in 1978 and the worker's subsequent reporting of dizziness immediately after that accident, were consistent with a degree of auditory vestibular nerve injury which would have been a contributing cause of hearing loss.

Once this medical information was received by the Panel, the Chief Appeal Commissioner was asked by the panel to send the matter back to the Workers Compensation Board in order to have the 1978 accident adjudicated. Without this adjudication, notwithstanding the reference to the causal relationship between that accident and the worker's hearing loss, this Panel was without jurisdiction to find that any injuries sustained in the 1978 accident including hearing loss, constituted a compensable injury within the meaning of The Workers Compensation Act.

Primary adjudication, in its decision dated April 15, 2005, confirmed that the worker was involved in a workplace accident on December 2, 1978. Information from his employer confirmed his employment activities on that day and the fact that he was dragged under a train for a short distance. On the accident report, however, there was no indication of any loss of hearing that may have occurred as a result of the incident. The adjudicator noted that, unfortunately, attempts to secure medical information regarding the injuries had not been successful since the doctor the worker attended a few days after the incident had passed away and his medical records were no longer available. Therefore, the adjudicator determined that although the WCB could accept a claim for the physical injuries sustained by the worker, since there was no mention in the file from either the employer or the worker's then physician about difficulties with hearing, the adjudicator was not able to confirm that the incident had any impact on the worker's loss of hearing.

After this adjudication, the adjudicator then returned the file directly to the Appeal Commission for this Panel's review.

We note that the 1978 claim has only been addressed by the WCB at the primary adjudication level. This decision is in effect at this point in time. It is, however, available for the worker to seek reconsideration of that decision from Review Office should he choose to do so. This panel is without jurisdiction to consider the 1978 claim or decision made.

We are then left with the 1997 claim for noise induced hearing loss. We accept the reduction of the PPI award by 50% as there was no medical evidence to link the noise induced hearing loss to the total profound deafness. We find the profound deafness would therefore be related to other factors which have been interpreted to be pre-existing and of a major nature. The reduction of the PPI by 50% is therefore appropriate.

The appeal is therefore denied.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of July, 2005