The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 2, 2006, at the request of a worker advisor, acting on the worker's behalf. The panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On January 17, 1991, the worker filed a hearing loss claim with the Workers Compensation Board (WCB). The worker noted on his application form that he first became aware of problems with his hearing in early 1990 and that it was a gradual hearing loss.

The employer's injury report indicated that the worker attributed his hearing loss to general workplace noise levels. The employer noted that the worker started with the company in 1985 and that he held several positions which included operating a sanding machine and brush sander, a parts piler, a cleat drill operator and table saw operator.

In order to adjudicate the claim, the WCB obtained a number of audiometric test results along with information from the worker's treating physicians. The information was then reviewed by a WCB ear, nose and throat consultant at the request of primary adjudication.

On August 15, 1991, the worker was advised that the WCB would not accept responsibility for his claim as it was determined that he did not suffer from a work-related noise-induced hearing loss. The adjudicator stated, "The loss of hearing in your right ear is due to an unknown cause which is not related to your employment. An audiogram conducted in 1990 shows normal hearing in your left ear. However, an audiogram conducted on May 16, 1991 by [doctor] at [place] indicates a profound hearing loss in your left ear. Since your hearing in your left ear was within the normal range in 1990, it is our opinion this sudden loss is not work-related. Your subsequent hearing loss in your left ear is due to some cause other than your employment. It is our opinion your hearing loss is due to some other condition other than your employment."

On June 21, 2005, a worker advisor asked the WCB to reconsider the above decision and submitted new medical information dated June 14, 2005 for consideration. The worker advisor outlined the worker's position that on a balance of probabilities, the hearing loss he incurred between 1985 and 1991 was a result of his noise induced work environment. The worker was also of the opinion that his hearing loss prior to 1991 contributed to the severe hearing loss he experienced on May 12, 1991 which prevented him from returning to the work force.

On June 29, 2005, a WCB adjudicator determined that no change would be made to the 1991 decision. The adjudicator noted that he reviewed the medical information and there was no dispute that the worker had a hearing loss. The medical information indicated that the worker was diagnosed with bilateral auditory labyrinthine dysfunction and that his hearing loss was not a result of noise exposure.

On July 7, 2005, the worker advisor wrote to Review Office and asked it to reconsider the adjudicator's decision of June 29, 2005.

On July 15, 2005, Review Office confirmed that the claim was not acceptable. Review Office noted that the worker suffered two separate incidents in which total deafness resulted and that it was the consensus of the attending medical consultants that neither of these episodes would be the result of noise exposure.

Regarding the worker's contention that his hearing deteriorated between 1985 and 1991 due to occupational noise exposure, Review Office indicated there was a slight loss in the left ear which may have been noise induced but it failed to fall into the rateable range. Review Office therefore confirmed that the worker's hearing loss was not due to occupational noise exposures. In October 2005, the worker advisor appealed Review Office's decision and a hearing was arranged.

Reasons

This appeal was filed on behalf of a worker who sought to have his claim for hearing loss accepted. For the appeal to succeed the panel must find a causal relationship between the worker's hearing loss and his employment. The panel was not able to find a relationship between his hearing loss and his work.

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions with the assistance of an interpreter. The employer was represented by an advocate and a staff member. The advocate made a submission on behalf of the employer.

The worker's representative advised that the worker is of the opinion that, on a balance of probabilities, the hearing loss that he incurred between 1985 and 1991 in his right ear was the result of exposure to noise in the workplace.

The worker described his duties and the machinery he used. He acknowledged that he wore hearing protection at work. He advised that he had been exposed to an explosion while working in May 1991 and attended a hospital after the explosion.

The employer's representative submitted that the evidence does not establish that the worker was exposed to noxious noise in the workplace which contributed to the worker's profound hearing loss. The employer's representative noted that the worker ceased working for the employer in 1991 but was rehired in 1996 and continued until a lay-off in 2003.

With respect to the worker's evidence of an explosion at the worksite, the employer representatives advised there is no mention of an explosion in the employer's records.

Analysis

The panel has considered all the evidence including the evidence presented at the hearing and the submissions made on behalf of the parties. The panel finds, on a balance of probabilities, the worker's hearing loss claim is not acceptable.

This case involves a worker who sustained a significant hearing loss initially in his right ear and subsequently in his left ear. The worker attributed the hearing loss to noise exposure at his workplace since 1985. He also related it to an explosion which he testified had occurred at work in 1991.

Regarding the explosion, the panel considered the worker's position and finds that the evidence on the file and that provided by the employer at the hearing does not substantiate that an explosion occurred. The panel is unable to attribute the worker's hearing loss to an explosion which is alleged to have occurred at work in 1991.

The panel accepts the evidence from the employer's representative that the employer has a noise conservation program. This was confirmed by the worker who acknowledged that he wore hearing protection devices while at work.

The panel notes that in June 1991 the worker was examined by an otolaryngologist at the request of the WCB. This specialist offered the opinion that the worker has bilateral and auditory labyrinthine dysfunction of unknown etiology. The panel also notes that a WCB consultant reviewed the information on the file and concluded that this bilateral hearing loss is not noise induced.

Finally the panel notes there is some evidence of a noise induced hearing loss in the worker's left ear as seen by a comparison of audiogram results but that this loss is minimal, and is not rateable for a WCB impairment award.

The worker's appeal is denied.

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 22nd day of March, 2006