The Appeal CommissionThe Workers Compensation Act of Manitoba

This matter came before a panel of the Appeal Commission by way of a file review.

The worker had been awarded a Permanent Partial Impairment award for hearing loss which was rated at 0.95%. In filing his appeal the worker described how during his employment history which spanned a period from 1962 to 1999, he was constantly exposed to noxious noise in the workplace. He advised that hearing protection was not worn during the days that he worked and was certainly not mandatory.

He brought to the panel's attention the fact that he had had two hearing tests: the first in November of 2004 and the second in May of 2006. He indicated that although he did not know how to interpret the results it was his belief that the second, more recent test would be more accurate since he felt his hearing was, in fact, getting worse.

In a letter to the appeal panel dated July 10, 2006 in support of this appeal, the worker described in detail the nature of the noise exposure he sustained in his trade as a heavy equipment mechanic. He indicated, therefore, that he wanted to be compensated because his deafness was causally related to his work.

At the time of filing his claim for a partial impairment award the worker was retired, having stopped working in 1999. The claim falls under the portion of The Workers Compensation Act ("the Act") which deals with providing compensation for impairment rather than for loss of earning capacity or, in other words, for loss of function rather than for loss of wages.

The panel was asked to consider: a) whether the worker's permanent impairment rating of 0.95% is correct; and b) whether the financial value of the impairment award is correct.

Correctness of the Impairment Rating

Subsection 60(2) of the Act provides exclusive jurisdiction to the WCB to determine the existence and degree of any disability by reason of any injury arising out of and in the course of employment. Subsection 4(9) provides for the awarding of compensation in respect of an impairment that does not result in a loss of earning capacity.

Section 38 of the Act deals specifically with impairment awards. Subsection 38(1) provides that the WCB

… shall determine the degree of a worker's impairment expressed as a percentage of total impairment.

Subsection 38(2) provides a scale for the value of lump sum awards based on the degree of impairment. This scale is adjusted annually and is published in a regulation.

Impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity nor is it a proxy for loss of earning capacity.

The Board of Directors established Policy 44.90.10, Permanent Impairment Rating Schedule. That schedule is designed to measure the degree of permanent impairment of a body function following an injury. Permanent impairment is measured by factors such as the loss of a part of the body or loss of mobility in a joint or cosmetic deformity of a body part.

The Policy provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the Policy. It also provides that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A to that Policy.

An injured worker's permanent impairment is appraised by the Healthcare Management Services Department of the WCB when it conducts either a medical examination of the worker or reviews the worker's treating physician's medical reports.

In considering the worker's appeal in this case, the Appeal Commission is bound by the Act and policies of the WCB.

In this case, on December 21, 2005, an ENT consultant reviewed the worker's partial impairment claim including the test results contained in an audiogram which was performed in November 2004. Based on the degree of hearing loss found, the ENT consultant determined the worker's impairment rating to be 1%. We find that this calculation has been made in accordance with the policy.

The impairment award in this case was further governed by Board Policy 44.20.50.20 the subject of which is hearing loss. Under the provisions of that Policy workers will only be compensated for any impairment caused by exposure to hearing loss which occurred in the course of employment in Manitoba. The Policy goes on to say that the Manitoba WCB supports the inclusion of hearing loss in the inter-jurisdictional agreement and will accept responsibility for that portion of hearing loss which is to be claimed resulting from out-of-province exposure when and if (emphasis added) the inter-jurisdictional agreement is amended to include out-of-province exposure to noise. To date, however, that agreement has not been so amended.

Accordingly, because the evidence in this case disclosed that for two of the years during which the worker was exposed to noise in the work environment that exposure occurred while he was working outside the Province of Manitoba, no compensation can be awarded for those two years by the WCB. This explains why, in calculating the impairment rating for the worker's permanent partial impairment award, the award was reduced from 1% to 0.95%; reflecting a deduction for the fact that for two of the 37 years that the worker was exposed to noise in the work environment, that exposure occurred in employment outside of Manitoba.

We find, therefore, that with respect to the first issue being whether the worker's permanent partial impairment rating has been correctly assessed at 0.95%, no error has been made.

Correctness of the Financial Value of the Award

With respect to whether or not the financial value of the impairment award has been properly calculated, the Panel has reviewed the calculations which were performed in accordance with the Policy relating to hearing loss and find that those calculations have been accurately performed. In so saying, we have had regard to the medical evidence set out in the audiogram which was performed in November of 2004. We also find, in looking at the audiogram which was performed in May of 2006, that there is no significant difference between the two audiograms which would alter either the impairment rating or the financial value of the impairment award.

The Board has accepted that the audiologic exam which was performed on the worker on November 25, 2004 confirmed his loss of function. Therefore, pursuant to the applicable regulation which adjusts the calculation of impairment awards under subsection 38(2)(a) of the Act for the year 2004, the amount of an impairment lump sum payment where the impairment is determined by the Board to be 1% or greater but less than 5% is $620.00.

With respect to the specific calculation of the financial value of the impairment award we note that subsection 38(3) of the Act provides:

a sum payable under subsection (2) shall be reduced by 2% for each year of age the worker is over 45 years at the time the Board determines the worker has an impairment, but the reduction shall not exceed 40%.

At the time the Board determined that the worker had an impairment, the worker was 60. Accordingly, in reviewing the calculations of the financial value of the impairment award we find that the reduction which was made in accordance with the provisions of subsection 38(3), was accurately performed.