Decision #73/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on March 30, 2005, at the worker's request.

Issue

Whether or not the April 27, 1998 date of accident is correct; and

Whether or not there is entitlement to a permanent partial impairment award for tinnitus.

Decision

That the April 27, 1998 date of accident is correct; and

That there is no entitlement to a permanent partial impairment award for tinnitus.

Decision: Unanimous

Background

In December 2002, the worker filed a work-related noise induced hearing loss claim with the Workers Compensation Board (WCB). The worker stated that he first became aware of a hearing problem in 1981 and that he had reported it to his employer in 1981. He stated that his hearing loss came on gradually. The worker attributed his hearing loss to working as an aircraft mechanic commencing in 1979.

The "Employer's Report of Hearing Loss" form dated March 11, 2003 confirmed that the worker commenced employment in 1979 as a full time aircraft technician.

On December 18, 2002, an audiologist advised the WCB that the worker's hearing had been assessed on November 25, 2002. The audiologist reported "intermittent tinnitus bilaterally and occasional aural fullness in which the ear feels like it goes 'blank', but he has no history of ear infections, ear pain, or ear surgeries. His hearing loss is symmetrical and sensorineural." He also commented that the worker's history of noise exposure while working with jet engines from 1979 to the present contributed to his hearing loss.

On April 21, 2003, an ear, nose and throat (ENT) consultant with the WCB reviewed the worker's audiology results and concluded that the worker had a 25 dB deficit in the right ear and 27.5 dB deficit in his left ear. He stated that the first screen/audiogram indicating signs of noise induced hearing loss was in 1998. He indicated that the worker had a noise induced hearing loss and required two hearing aids.

In a decision dated May 2, 2003, primary adjudication informed the worker that the hearing loss noted in both his ears was not considered to be rateable and that he did not qualify for a permanent partial impairment award. The worker was advised that the WCB would only accept responsibility for the purchase of two hearing aids as was recommended by the WCB's ENT consultant.

In a further letter to the worker dated October 29, 2004, primary adjudication stated that a permanent impairment rating for tinnitus can be awarded for claims arising from accidents on or after April 1, 2000. With respect to hearing loss claims, the date of accident was deemed to be the first date in which there was medical evidence of noise induced hearing loss. In this particular case, primary adjudication noted that the worker had a noise induced hearing loss evidenced on an audiogram dated April 27, 1998. Therefore, the date of accident for this claim was April 27, 1998. Based on this factor, the worker was advised that he was not eligible to receive a permanent partial impairment award for tinnitus.

On November 26, 2004, Review Office considered the case based on an appeal submitted by the worker dated November 16, 2004. Review Office confirmed that the accident date of April 27, 1998 was correct and was in keeping with WCB policy. Review Office also concluded that the worker was not entitled to a permanent partial impairment award for tinnitus. Review Office stated:
"Tinnitus, secondary to noise-induced occupational hearing loss, was not recognized for impairment rating on files, where the date of accident was before April of 2000. Board policy provides for PPI for tinnitus, when secondary to noise-induces (sic) hearing loss only for accidents occurring after April 2000. In the case of this worker, there is evidence of noise-induced hearing loss dating to April 1998. Therefore, it is the opinion of Review Office that an impairment rating for the worker's tinnitus cannot be considered in this case."
In January 2005, the Appeal Commission received the worker's Application to Appeal with regard to Review Office's decision of November 26, 2004. On March 30, 2005, a non-oral file review was arranged to consider the worker's appeal.

Reasons

According to WCB policy 44.20.50.20.01 in order for a hearing loss 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).”

In establishing the date of accident for hearing loss claims, the WCB looks to the date of an audiogram that first confirms evidence of noise-induced hearing loss. The evidence confirms that the first audiogram establishing the worker’s hearing loss was conducted on April 27, 1998. Therefore, we find that the date of accident in this particular case is correct i.e., April 27, 1998.

WCB policy 44.20.50.20 provides in part as follows:

“Tinnitus is a perception of sound in the absence of an acoustic stimulus. It may be of a buzzing, ringing, rushing, whistling or hissing quality. It may be intermittent or continuous. Claims for tinnitus are compensable if the tinnitus is associated with the noise-induced hearing loss and there is a history of 2 or more years of continuous tinnitus.”

The foregoing policy applies only to claims arising from accidents on or after April 1, 2000. Prior to this date tinnitus was not considered compensable by the WCB. Unfortunately for the worker his noise-induced tinnitus arose prior to the effective date of the governing policy. Accordingly, there is no entitlement to a PPI award for tinnitus.

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 13th day of May, 2005

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