Decision #173/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on October 6, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not responsibility should be accepted for a left hearing aid.

Decision

That responsibility should be accepted for a left hearing aid.

Decision: Unanimous

Background

In March 1995, the worker submitted a claim for noise induced hearing loss which he attributed to his work activities commencing in 1961. During his working career, the worker was employed as a construction labourer, a surveyor, truck driver and power engineer. The worker indicated that he first became aware of a hearing problem in approximately 1980 and that the hearing loss came on gradually.

In order to adjudicate the claim, the Workers Compensation Board (WCB) contacted the employer and the worker to obtain additional information surrounding the worker's hearing loss. Information was obtained from an audiologist. Following review of all the information, the WCB advised the worker on September 21, 1995 that his claim was being accepted on the basis of noise induced hearing loss. The worker was advised that his hearing loss was not sufficient to entitle him to an impairment award and that a hearing aid was not needed. The adjudicator stated:
"…you have a past history of shooting. We also note you are right handed. Based on the medical information available it appears the hearing loss in your left ear is much more significant to the hearing loss in your right ear. It is our opinion the difference in your ears is due to a non work related factor such as the extra curricular activity at shooting. As a result, we have taken the results from the right ear and applied this to the left ear, attributing any difference to the non work related factor. It is our opinion the average loss of hearing in your right and left ear is 7.5 decibels."
In April 2001, the worker advised the WCB that his left ear was getting worse as was his right ear. The worker indicated that he still moose hunts and fires about 3 shots a year to sight in his gun and one shot while hunting. He stated that he gave up duck hunting 3 or 4 years ago. The worker noted that he was still exposed to noise during his employment activities.

In a decision dated June 25, 2001, the adjudicator stated:

"…based on recent information there has (sic) a slight increase in the amount of your hearing loss in your left ear when compared to our last hearing assessment of 1995. However, the amount of your hearing loss still does not fall within the rateable range as defined by the WCB. The standard is a deficit of 35 decibels or over in each ear and is arrived at by taking the average of the hearing loss as recorded at the 500, 1000, 2000 and 3000 hertz frequencies. Based on the testing you underwent on February 21, 2001, the average of the hearing loss of your right ear was determined to be 7.5 decibels while the average of the hearing loss in your left ear has been determined to be 30 decibels. As such, your condition is not rateable.

It is noted that based on the initial assessment a hearing aid was not requested and that the additional hearing loss in your left ear only is due to a non-work related factor such as the extracurricular activity of shooting."

In a letter to the WCB dated September 13, 2001, an audiologist recommended that the worker consider amplification for his left ear based on the results of an audiologic screening performed on February 21, 2001.

On September 28, 2001, a WCB ear, nose and throat consultant (ENT specialist) reviewed the file information and stated:
"Assuming NIHL [noise induced hearing loss] is symmetrical, clmt [claimant] does not need hearing aid for the rt [right] ear. The lt [left] ear hearing loss is compounded by noise from gun use (rt handed). Therefore hearing aids are not required based on work related NIHL."
On October 18, 2001, the worker was advised that the WCB was unable to accept responsibility for the left hearing aid based on the comments expressed by the WCB ENT specialist.

On April 5, 2005, a worker advisor asked the WCB to reconsider its decision of June 25, 2001 based on a report from an audiologist dated March 30, 2005. This letter stated that the worker should be fitted with amplification for his left ear as he was having great difficulty localizing sound, along with discriminating speech. Included with the report was an audiologic assessment dated March 2, 2005.

On May 29, 2005, the WCB's ENT specialist reviewed the file information and he confirmed that the need for a left hearing aid was mainly because of the worker's right handed gun use. On June 2, 2005, a WCB adjudicator advised the worker advisor and the worker that no change would be made to the WCB's decision of October 18, 2001 based on the opinion expressed by the WCB's ENT specialist. On June 8, 2005, the worker advisor appealed this decision to Review Office.

In a decision dated June 24, 2005, the Review Office indicated that noise induced hearing loss related to high sound levels in the workplace was usually symmetrical, i.e. fairly equal in both ears. In this particular case, the worker's hearing loss in his left ear was significantly greater than his right ear and he had not been wearing the appropriate hearing protection while shooting. Review Office concluded that the difference in the level of hearing loss between the left and right ears was not work related and that the WCB would not be responsible for the costs associated with a hearing aid for the worker's left ear. In August 2005, the worker appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The Panel was asked to determine whether responsibility should be accepted for a left hearing aid. For the appeal to succeed, the Panel must find that the need for a hearing aid is due, at least in part, to exposure to noxious noise from the workplace.

As noted in the background, the WCB has accepted the worker's claim for noise induced hearing loss in both ears. In accepting his claim, the WCB noted that the worker had a pre-existing hearing loss in his left ear. The worker's hearing loss has increased to the point that he requires a hearing aid for his left ear. A specialist has prescribed the hearing aid.

The Panel finds that Board of Director's policy 44.20.50.20.01 which deals with hearing loss claims is directly applicable. It states:
5. Where a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board."
The Panel also notes that subsection 27(1) of The Workers Compensation Act provides the WCB with authority to pay for "…such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident." The Panel considers that this statutory provision provides authority for the purchase of a hearing aid in this case.

The appeal is allowed.

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 9th day of November, 2005

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