Decision #152/06 - Type: Workers Compensation
Preamble
A file review was held on August 22, 2006 at the worker’s request.
Issue
Whether or not the worker is entitled to an increase in his permanent partial disability award.
Decision
That the worker is not entitled to an increase in his permanent partial disability award.
Decision: Unanimous
Background
In December 1985 the worked filed a claim with the Workers Compensation Board (WCB) for noise induced hearing loss that he related to his employment activities over the years as a miner. The worker indicated that his hearing loss difficulties became problematic in 1979 and that his hearing loss came on gradually. The claim was accepted by the WCB and in 1999, the worker was awarded a 1.98% permanent partial disability (PPD) award for his hearing loss.
In March 2005, the worker contacted the WCB to indicate that his hearing loss had deteriorated and enquired whether he was entitled to an increase in his PPD award. The worker indicated that he had not worked in a noisy environment since 1998.
In a decision dated March 30, 2005, the worker was advised that the recent deterioration in his hearing was not the responsibility of the WCB given that he had not been exposed to loud noise in the province of Manitoba since 1998. On February14, 2005, the worker appealed this decision and stated, “I have been exposed to loud noise in the province of Manitoba. I worked for [employer’s name]…approximately 2001. First shift there was an incident report which I was exposed to very loud noise from a jumbo round. Did not have proper hearing for over a week. My leader placed me to guard a blast too close and round blew out.”
Inquiries of the employer in question confirmed that the worker had been employed from November 25, 2001 to November 29, 2001 as an equipment operator. The employer was unable to locate a report or any documentation confirming that the worker was exposed to a blast during that time. It was noted that the worker had worn plugs and muffs while employed. The adjudicator determined on May 10, 2006, that in the absence of confirmation that the worker had been exposed to noxious levels of noise which would result in deterioration of his hearing, there was no basis for an increase in the worker’s PPD award. On May 15, 2006, the worker appealed this decision to Review Office.
On June 1, 2006, Review Office determined that the worker was not entitled to an increase in his PPD award on this claim. Review Office noted that this claim was for a hearing loss resulting from prolonged exposure to noxious noise. As the worker had not been exposed to noxious noise in Manitoba since his PPD was established in 1998, it followed that any decrease in his hearing since then could not be accepted as compensable under this claim. Review Office indicated that the WCB was not responsible for hearing loss due to aging or disease, even when the loss is superimposed over a compensable hearing loss. The worker was advised that should he want to pursue an award for a loss of hearing due to the blast in question, he should file a claim with the WCB for that incident. The worker appealed from that decision and a file review was arranged.
Reasons
In 1999 it was determined by the WCB that this worker had sustained a degree of permanent impairment by virtue of his hearing loss and a PPD was awarded. The WCB reconsidered the degree of impairment but determined that no increase in the PPD was warranted.
The panel is satisfied on a balance of probabilities that this worker’s hearing has deteriorated since 1998. A hearing assessment conducted on May 31, 2006 confirmed a deterioration in the worker’s hearing loss, but could not confirm the cause of that deterioration. The physician noted that it could be attributable to “either age or further noise exposure”, and in a further discussion with the Review Officer indicated that there was no way of determining whether the deterioration was related to prolonged noise exposure, traumatic noise exposure, disease, aging, poor testing protocols or lack of co-operation during testing.
WCB Policy 44.20.50.20.01 provides for claims for long-term exposure to noxious noise. For claims to be compensable, there must be exposure to noxious noise for a minimum of two years.
The Policy does not apply to claims arising from instantaneous noise-induced hearing loss resulting from a single exposure at close range.
The evidence before this panel was that the worker had not been subject to long-term exposure to noxious noise since having been awarded the PPD in 1999. The worker asserted that he had suffered a traumatic loss of hearing in 2001 during a 4 day period in which he was working as a contract miner. He advised that he had been exposed to a “jumbo round blast” as a result of which he had experienced a further deterioration in his hearing loss.
There was no evidence before this panel to support the assertions of the worker as to the cause of the recent deterioration of his hearing loss. Inquiries made of the employer by the WCB could not confirm that the worker had been exposed to a blast in November 2001. A review of the employer’s records failed to disclose any documentation confirming the worker’s exposure to a “jumbo round blast”. Notably the worker did not file a claim in 2001 in connection with that incident. The WCB, therefore, never had an opportunity to investigate or adjudicate the worker's claim in respect of the alleged exposure to a jumbo round blast in November 2001. Consequently, in the absence of an accepted claim in 2001 for an instantaneous noise-induced hearing loss, and in the absence of any evidence that the worker was exposed to noxious noise for a minimum of two years since 1998, we are unable to attribute the further deterioration in the worker’s hearing to the workplace. Therefore, there is no compensable basis for us to increase the worker’s permanent partial disability award.
The appeal is therefore denied.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of October, 2006