Decision #191/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 1, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 7, 2003, the worker filed a hearing loss claim with the Workers Compensation Board (WCB). The worker reported that his hearing loss had come on gradually and that he had reported it to his employer in early 2000. He stated that he had been exposed to continuous noise levels at work. The worker was employed as a medical equipment technician between 1973 and 2003.

The Employer's Report of Hearing Loss form dated June 5, 2003 indicated that the worker did not report or relate his hearing loss difficulties to the company. The report stated that the equipment used by the worker included a pressure washer which produced loud noise for 1 hour per day and an air compressor which produced loud noise for ½ hour per day.

Between December 2003 and October 2004, the WCB contacted both the worker and his employer to clarify the types of equipment used by the worker during his career with the company and the amount of time he was exposed to loud noises in the workplace. The WCB contacted two other companies that supplied similar oxygen machines to obtain any information concerning noise level surveys. The WCB also gathered medical reports from the worker's otolaryngologist and had the worker's hearing tested by a certified audiologist.

In a decision dated October 4, 2004, the WCB informed the worker that his claim for hearing loss had been denied. The rationale for this decision was outlined as follows:

"You indicated you worked in a shop where oxygen concentrators were cleaned and repaired and they would be left running continuously for 24 hours to ensure they were working properly.

Your employer was not able to confirm that the noise you were exposed to was greater than 85 decibels (dB) for 8 hours per day. I contacted two other companies that also repair oxygen machines but they advised that no noise level surveys were available.

Therefore, we are not able to accept your claim for hearing loss as we are of the opinion your exposure in Manitoba does not meet our criteria."

On December 6, 2004, a worker advisor appealed the October 4, 2004 decision to Review Office on behalf of the worker. The worker advisor stated, in part, "The adjudicator has stated the claim is not acceptable because the employer was unable to confirm that the noise he was exposed to did not meet the criteria. The employer never did any noise level testing to support that the noise levels were below 85dB. Having said this, it is our position that there is no contrary evidence or information provided on the file that would suggest Mr. [the worker's] documented hearing loss arose from anything but his constant exposure to noise in the workplace."

In decision dated December 10, 2004, Review Office concluded that there was insufficient evidence to support that the worker's noise induced hearing loss was related to the work he was doing for the employer. In arriving at its decision, Review Office noted that not all hearing loss was caused by exposure to noise at work. In this worker's case, Review Office noted that the worker was exposed to high levels of noise before he worked for this employer, some of which was in the Netherlands and with other employers, and some in army training. Review Office indicated that in keeping with board policy, the WCB would be satisfied that hearing loss occurred at work when a worker was exposed to noxious noise at work for a minimum of two years, based generally upon an average of 85 dB for eight hours of exposure on a daily basis. The noise levels at this workplace were never tested and as a result, there was no way of knowing whether the worker was exposed to noxious noise at levels of 85 dBs or greater for eight hours over a minimum of two years.

In a submission dated April 21, 2005, the worker advisor presented further argument that the worker would have been exposed to noxious noise in the workplace at levels above 85 dB for several years and that his employment activities of servicing oxygen concentrators was the dominant cause of his hearing loss. The worker advisor indicated that the worker obtained a tester from Workplace Safety and Health and tested the noise levels of a similar oxygen concentrator to those he serviced during his employment. One concentrator was tested with the cover on and the reading was 75 dB. At start up of the machine, the reading was 108 dB. With the back half of the cover off, the reading was 92 dB. He ran two oxygen concentrators simultaneously and the reading was 116 dB. The worker did a noise test on the hand nozzle of the blow gun which he used to blow dust out of the equipment being serviced and he recorded a level of 110 dB. The worker advisor commented that once the worker serviced these oxygen concentrators, he would leave them running for a minimum of 24 hours to ensure they were operating correctly. This was done Monday to Friday and it was not rare for him to have six or seven oxygen concentrators running all at once. With regard to Review Office's reference that the worker was exposed to high levels of noise prior to commencing his employment with this employer, the worker advisor pointed out that these jobs were less than 2 years in length and were prior to 1969. The worker had serviced oxygen concentrators for over 20 years since that time.

Prior to considering the above appeal, Review Office spoke with the worker advisor on July 15, 2005 who stated that the particular concentrator serviced by the worker was now obsolete. Sometime in May, the worker located one at another company, however that company did not authorize any sound testing to be done on it. Review Office also contacted the worker's supervisor who stated that while servicing the oxygen concentrators, there were 5-6 concentrators running 6-7 hours at a time, but he was not aware of any noise level testing having been done on the machinery. He stated with the covers off, the compressors were loud but he could not provide specific information on the noise levels.

In a decision dated July 22, 2005, Review Office confirmed that the claim was not acceptable. Review Office indicated there was insufficient evidence to support that the worker was exposed to noxious noise levels of 85 dB or greater for eight hours over a minimum of two years. On September 8, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Subsection 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 subsection, the Panel must, initially, be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes
  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises out of, and in the course of, employment, and
  3. an occupational disease
and as a result of which a worker is injured."

As the background notes indicate, the worker appeals Review Office's decision denying his alleged hearing loss on the basis that his claim did not meet the requirements of WCB policy 44.20.50.20 for noise induced hearing loss. The policy provides in part as follows:
"Permanent hearing loss can be caused either by acute acoustic trauma or prolonged exposure to excessive noise. This policy applies to claims arising from long-term exposure to occupational noise that causes hearing loss. Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is exposed to noxious noise at work for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis."
According to the worker's evidence, he alleges that he developed a hearing loss as a consequence of his exposure to prolonged noise levels while repairing oxygen concentrators. The worker serviced these particular machines on a daily basis over the course of a 20 to 25 year working history. The evidence confirms that the manufacturer rated the noise level of these machines while covered during operation at 75 dB.

The worker testified that after a machine had been serviced it would then be test run uncovered for a 24 hour period and that the machines were significantly louder without covers on. This was corroborated by the worker's supervisor. He further testified that it was common to have six to eight uncovered machines running at the same time in close proximity to his work bench. The worker conducted his own tests using a borrowed noise level meter to measure the noise level of these machines while running uncovered and found that running one produced noise in the 94 dB range and running two produced noise in the 110 dB range.

Notwithstanding that the worker conducted his own noise level measurements, we find that it would not be unreasonable to conclude that these machines would run louder with their insulated covers removed. It should also be noted that the worker's evidence of six to eight uncovered machines running on a continuous basis in close proximity to the worker was not challenged or disputed.

After having considered all of the evidence, we find that the worker was, on a balance of probabilities, exposed to noise levels in excess of 85 dB for eight hours on a continuous basis over a period of more than 20 years. It necessarily follows that the worker's hearing loss can therefore be attributed to his job environment. Inasmuch as the worker satisfies the minimum requirements for a hearing loss claim as set out in WCB policy 44.20.50.20, we further find that the worker did in fact sustain an accident as defined in the Act. Therefore the claim is acceptable. Accordingly, the worker's appeal is hereby allowed.

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 6th day of December, 2005

Back