The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a worker’s request for a permanent partial disability (PPD) award arising from his noise induced hearing loss.

In 2005, the worker submitted a claim to the Workers Compensation Board (WCB) for a noise induced hearing loss. The worker’s claim was accepted, however, the WCB determined that the worker was not eligible for a PPD award for the hearing loss or tinnitus. The worker sought reconsideration but the WCB Review Office determined that the worker was not entitled to PPD awards arising from the hearing loss. The worker then appealed to the Appeal Commission and a file review took place on November 22, 2006.

Issue

Whether or not the worker has a rateable hearing loss condition that would entitle him to a permanent partial disability award; and

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

Decision

That the worker does not have a rateable hearing loss condition that would entitle him to a permanent partial disability award; and

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

Decision: Unanimous

Background

In December 2005, the worker submitted a claim to the WCB for noise induced hearing loss. In his application for compensation, the worker noted that he first became aware of a hearing problem in 1990-1992 and that his hearing loss came on gradually. The worker provided details of his employment history from 1964 to 2005. The employer was contacted and provided audiogram reports dating back to October 1981.

On January 28, 2006, a WCB ear, nose and throat consultant reviewed the various audiological reports on file and concluded that the worker’s loss of hearing in his right ear was 32.5 decibels while the hearing loss in his left ear was 35 decibels. He concluded that the worker had a noise induced hearing loss but it was not rateable.

In a WCB decision letter dated February 2, 2006, the worker was advised that his claim for compensation had been accepted, however, he was not entitled to a permanent partial impairment award for hearing loss. The adjudicator commented that the WCB had established a standard minimum level at which hearing loss would be considered rateable (i.e. 35 decibels). As his hearing loss was not 35 decibels or more in each ear, he did not qualify for an award.

In May 2006, the adjudicator noted from the file evidence that the worker had a noise induced hearing loss in an audiogram dated October 14, 1981 and therefore the date of his claim would be changed to October 14, 1981.

In a letter dated April 12, 2006, the adjudicator advised the worker that he was not entitled to a PPD award for tinnitus as the WCB’s policy regarding tinnitus did not apply to claims with dates prior to April 1, 2000.

On July 20, 2006, the worker appealed the decision that he did not qualify for a PPD award for hearing loss or tinnitus. He felt it was unfair to establish the date of his claim back to 1981 as his tinnitus condition started only a few years ago.

On August 11, 2006, Review Office determined that the worker was not entitled to a PPD award for hearing loss. Based on medical evidence, Review Office concluded that the worker’s average loss of hearing in his right ear was 32.5 decibels and the average loss of hearing in his left ear was 35 decibels. As the worker did not have a hearing loss of 35 decibels or more in both ears, he did not have a rateable impairment and did not qualify for a PPD award.

Review Office also determined that the date of the claim had been correctly established as being October 14, 1981 based on the results of an October 14, 1981 audiogram which revealed a noise induced hearing loss. It therefore concluded that the worker was not eligible to receive a PPD award for tinnitus as WCB policy 44.20.20.20 was for claims arising from accidents on or after April 1, 2000.

On September 6, 2006, the worker disagreed with Review Office’s decision and filed an Application to Appeal with the Appeal Commission. On November 22, 2006, a file review took place to consider the worker’s appeal.

Reasons

Worker’s Position

The worker completed an appeal notice form on September 6, 2006 in which he stated that he will have to live with the hearing loss and tinnitus for the rest of his life. In a letter dated July 20, 2006, the worker asked that the WCB combine their results with the audiologist’s report, which he suggested would change the results significantly. He also disagreed with the establishment of the accident date in 1981 given that he filed the claim in 2005, and that his tinnitus developed “a few years ago”.

Employer’ Position

The employer was represented by an advocate who provided a written submission dated November 9, 2006. The employer’s representative noted there is a history of audiograms and progressive hearing loss due to exposure to industrial noise confirmed back to 1981. The employer’s representative advised that the employer agreed with the Review Office decision. She noted that the worker is entitled to hearing aid coverage but is not entitled to a PPD award for either hearing loss or tinnitus.

Applicable Policy

The Board of Directors of the WCB has enacted the Permanent Impairment Rating Schedule (the rating schedule). The rating schedule deals with ratings for PPD awards for accidents before January 1, 1992 and permanent partial impairment awards for accidents on or after January 1, 1992.

With respect to hearing loss claims, as this claim has an accident date of 1981, the applicable version of the rating schedule is #44.90.10.02 which provides, in part, as follows:

IMPAIRMENT OF HEARING

When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz.

In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear…

Analysis

The worker disputed the assignment of a 1981 accident date to his claim. He noted that his tinnitus did not develop until recently (“a few years ago”) and he did not apply to the WCB until December 2005. The panel notes that the 1981 accident date appears to have been made pursuant to subsection 1(12) of the Act which deals with deemed date of accident in cases of industrial disease. Information on the claim file indicates that the 1981 date was selected because there is evidence that the worker had a hearing loss in 1981.

There are two issues before the panel which arise from the worker’s request for PPD awards for hearing loss and for tinnitus.

Dealing with the first issue, the worker’s request for a PPD award for hearing loss, the panel notes that the evidence on file establishes that the worker’s average loss of hearing in his right ear is 32.5 decibels and the average loss of hearing in his left ear is 35 decibels. To be eligible for a PPD award for hearing loss in accordance with the WCB’s rating schedule, a worker’s hearing loss must be 35 decibels or more in each ear. The worker’s loss does not meet this requirement and he is therefore not entitled to a PPD for his hearing loss. In other words, the worker does not have a rateable hearing loss condition that would entitle him to a PPD award. In reaching this decision, the panel relies upon the evidence of the WCB ear, nose and throat consultant.

Respecting the second issue, the worker’s request for a PPD award for tinnitus, the panel finds that the worker is not entitled to a PPD award for tinnitus as the worker’s claim arises from an accident in October 1981. The reason for this decision is that PPD awards for tinnitus are only payable for claims arising from accidents on or after April 1, 2000 as authorized by Board Policy 44.20.50.20.

The worker’s appeal on each issue is denied. The panel notes, however, the worker’s hearing loss claim was accepted by the WCB and that he is entitled to medical aid assistance for this injury.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of January, 2007