The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on February 28, 2006, at the request of an advocate, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to a permanent partial disability award for tinnitus or for hearing loss.

Decision

That the worker is not entitled to a permanent partial disability award for tinnitus or for hearing loss.

Decision: Unanimous

Background

During the course of his employment as a diesel mechanic on May 13, 1985, the worker was changing a tire on a rim when the tire blew up. As a result of the accident, the worker reported injuries to his wrist and ringing in his ears.

On June 6, 1985, the worker's treating physician reported that the worker noticed a hearing loss in his right ear and some ringing in his left ear as a result of the accident. Pure tone audiograms showed a bilateral high tone loss at 4,000 cycles and above. It was worse on the left than the right. The physician thought that the worker's hearing loss was related to the noise exposure that occurred when the tire exploded.

The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker up until his return to work date of August 28, 1985 and on a few occasions in 1993, 1997, 1999 and 2000.

With regard to the worker's hearing difficulties and associated tinnitus, a narrative report was received from the worker's physician dated July 20, 1999 which outlined examination findings of July 15, 1994 and April 27, 1995. The physician provided the WCB with audiograms dated July 1994 through to March 1997.

On August 20, 1999, the case was reviewed by the WCB's ear, nose and throat (ENT) consultant. He stated that the first audiogram after the compensable accident was May 30, 1985 and it was not considered rateable. The last audiogram dated March 20, 1997 was not acceptable for rating purposes as the loss at 3000 hertz was not reported. It was the ENT consultant's recommendation that the worker undergo a complete audiological assessment. This examination later took place on September 13, 1999.

On October 18, 1999, the WCB's ENT consultant reviewed the audiological tests and determined that the worker's hearing loss was asymmetric but not rateable. He noted that the worker's average loss of hearing in his right ear was 15 decibels and the average loss of hearing in his left ear was 11.25 decibels.

In a decision dated October 27, 1999, the worker was advised that he did not qualify for a Permanent Partial Disability (PPD) award as his hearing loss was not in the rateable range as outlined in the WCB's impairment rating schedule.

In a further decision dated February 9, 2000, the worker was informed by the WCB that he was not entitled to a disability award for bilateral tinnitus. The adjudicator stated, "Normally, tinnitus is not rateable, however, there are special circumstances were (sic) an award can be provided, if there is speech impairment associated with the tinnitus. In your situation there is no speech impairment." On April 10, 2005, the worker's advocate appealed the October 1999 and February 2000 decisions to Review Office.

On May 19, 2005, Review Office determined that the worker was not entitled to a PPD award for tinnitus or for bilateral hearing loss.

Regarding the first issue dealing with tinnitus, Review Office relied on the The Workers Compensation Act (the Act) that was in effect at the time of this claim. Review Office also considered WCB policy 44.20.50.20 in its decision. It stated that this policy was only applicable to claims arising from accidents occurring on or after April 1, 2000 and given that the worker's accident occurred prior to April 1, 2000, he was not entitled to an impairment award for tinnitus.

With regard to the worker's bilateral hearing loss, Review Office found that the worker's noise induced hearing loss did not meet the minimum standard level for entitlement to a PPD award. As the worker's hearing loss was not rateable, it followed that he was not entitled to an impairment award for his hearing loss. On October 18, 2005, the worker's advocate appealed Review Office's decision and a file review was arranged.

Reasons

The issue before the panel was whether the worker is entitled to a permanent partial disability award for tinnitus or for hearing loss.

Worker's Submission

The worker was represented by an advocate who provided a written submission to the Appeal Commission.

In the submission dated February 20, 2006, the worker's advocate noted that the worker has a noise induced hearing loss and has had tinnitus since 1985. He noted that the worker's audiograms were conducted before the worker attained 60 years of age. He referred to an allowance for an unscheduled PPI/PPD award. He noted that there was no reference to Section 4(10) in the Act in force in 1985.

The panel also had access to the worker's full WCB claim file in dealing with this appeal.

Analysis

The panel has considered all the evidence on this issue and the provisions of the Act and WCB policy applicable to this claim. The panel has concluded that the worker is not entitled to a permanent partial disability award for tinnitus nor for hearing loss.

Tinnitus is defined as a subjective noise sensation, often described as a ringing in one or both ears (Mosby's Medical Dictionary, 5th Edition). The worker suffers from tinnitus which resulted from a single exposure at close range in 1985 and has requested compensation for this condition, by way of a PPD award. The panel reviewed the provisions of the WCB's Permanent Impairment Rating Schedule and Hearing Loss policy and finds that neither provided for an award for tinnitus for claims that arose prior to April 1, 2000. Accordingly the worker is not entitled to an award for his tinnitus.

The worker referred to an unscheduled award. This is an award that is not specifically set out in the schedule but is awarded on a discretionary basis. Information on the file notes that discretionary awards have been provided in cases of tinnitus where workers suffer from speech discrimination impairment associated with their tinnitus. In this case the evidence does not establish that the worker suffers from a speech discrimination impairment. As such the panel does not find this to be an appropriate case for a discretionary award.

The worker has also asked for a PPD award for hearing loss. The panel notes that the WCB has established criteria for determining impairment in cases of hearing loss. Based upon the WCB's criteria, the worker's hearing loss is not ratable and the worker is not entitled to an impairment award.

In arriving at this decision, the panel notes that the worker had hearing tests in September 1999. The results of these tests indicate that the average loss in the worker's right ear was recorded as 15 decibels and in the left ear as 11.25 decibels. To be eligible for a hearing loss award the worker's hearing loss must meet a minimum standard. 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 various frequencies. Where one ear meets the standard of 35 decibels and the other ear is not within the ratable range, an award is not granted unless the difference between the two is 30 decibels or more. The worker's loss does not meet this standard and is therefore not considered ratable.

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 25th day of April, 2005