The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

For the worker’s claim for traumatic hearing loss occurring on February 21, 1985 to be accepted the worker must have had an accident as provided in subsection 1(1) of the Act and the accident must have arisen out of and in the course of employment as provided in subsection 4(1) of the Act.

Accident is defined in subsection 1(1) of the Act as;

(a) a wilful and intentional act that is not the act of the worker, and

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) conditions in a place where an industrial process, trade, or occupation is carried on, that occasion a disease,

and as a result of which a worker is disabled;

With respect to the worker’s claim for a non-specific noise induced hearing loss, as the claim was made prior to October 1, 1995, WCB Policy 44.20.50.20, as it existed at the time, is applicable to the claim. This policy is not intended to apply to claims arising from instantaneous noise induced hearing loss resulting from a single exposure at close range. It provides that for a claim to be compensable the worker must be exposed to noxious noise at work for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis.

Worker’s Position and Evidence at the Hearing

The worker attended the hearing. He referred the panel to his written submission which was provided to the Appeal Commission prior the hearing.

In his written submission, the worker described the 1985 accident. He expressed disagreement with the opinion of an otolaryngologist that the WCB relied upon and noted that the WCB ignored the opinions of four other physicians. The worker acknowledged that he had sporadic ringing in his left ear before the 1985 accident, but that it became constant after the accident in his left ear and started in his right ear. He also submitted that his hearing loss was gradual and a direct result of the ringing in his ears. He wrote “As the ringing got louder, as time went by, my hearing decreased.” He submitted that tinnitus can develop as a result of exposure to a sudden or very loud noise.

The worker answered questions posed by the panel. With respect to his current employment which began in late 1986, the worker advised that he worked at various sites for the employer. He was asked to identify worksites with noise. He indicated that none of the sites had machine shops but had boiler rooms and some noisy equipment. He stated that if he worked in a noisy site all day he would wear protective equipment but if he was in and out he did not wear protective equipment. He identified the pipe threader as a noisy machine which he used once a week.

He confirmed that in 1975 to 1976 he began to have intermittent ringing in his left ear but that his right ear was not symptomatic. Regarding the 1985 accident, he advised that the torch was on his right side. He said that he had earaches in his right ear after the accident which went away and then ringing started in his right ear.

Employer’s Position

The worker’s current employer was represented by an advocate who made a submission on behalf of the employer.

The employer’s representative noted that the claim for traumatic hearing loss arising from the 1985 accident is not an issue for the current employer. This accident occurred while the worker was employed by a different employer. The representative noted there was evidence of tinnitus prior to the accident.

With respect to the claim for non-specific, gradual hearing loss, the representative advised that the worker was not exposed to noxious noise while working with the current employer. The representative noted other factors which may have an effect on hearing including his service in the army and childhood diseases.

The employer’s representative submitted that while the worker has a hearing loss, there is a lack of evidence of exposure to noxious noise or high decibel rate noise with the current employer. She submitted that the hearing loss is not a result of employment with the current employer.

Analysis

Traumatic Hearing Loss Claim

One of the issues before the panel was whether the worker’s claim for traumatic hearing loss occurring on February 21, 1985 is acceptable. For this appeal to be successful, the panel must find that the worker’s injury (hearing loss) resulted from a workplace accident. The panel was not able to make this finding.

The worker has attributed his hearing loss in his right ear to the 1985 incident. The panel notes that the worker completed a notice of accident card in February 1985 which references a blown hose on an oxy-acetylene torch. This form notes that the worker had “ear aches right” which is consistent with his evidence at the hearing. On his claim for hearing loss form completed in September 1990, the worker indicates that his hearing loss was gradual on the right and sudden on the left. The panel finds that the gradual loss of hearing in the right ear is not consistent with a traumatic hearing loss. There are no reports of immediate change in the hearing of the right ear.

The evidence on file also confirms that the worker had a hearing loss in his left ear prior to the 1985 accident. The panel relies upon the opinion of the WCB’s otolaryngology consultant as noted in a memo from the WCB case manager dated December 7, 2006, that there was no change in comparing the 1984 audiogram to the testing following the explosion. The panel finds that the evidence does not demonstrate a traumatic hearing loss and therefore is unable to find, on a balance of probabilities, that the worker suffered a traumatic hearing loss on February 21, 1985. As a result, the panel finds that the worker did not sustain personal injury by accident and therefore the claim is not acceptable.

Non-specific Noise Induced Hearing Loss

The second issue was whether the claim for non-specific noise induced hearing loss which was filed in 1990 is acceptable. As noted previously, WCB Policy No. 44.20.50.20 is applicable to such a claim. The policy required a period of sustained exposure to noise in the workplace. The worker’s evidence at the hearing did not identify significant exposure to noxious noise at his current employment. The worker described intermittent exposure to noise in the workplace. This is consistent with the information that the worker gave to an otolaryngology specialist in August 1990 where he is reported to have denied heavy noise exposure in his work environment. This is also consistent with the information provided by the worker in a letter dated November 26, 2006 that “I have been exposed to loud and moderate noise intermittently throughout my many years in the workforce.” The panel finds that the evidence does not establish that the hearing loss is a result of sustained noise exposure with the worker’s current employer.

The panel also finds that the evidence does not establish that the worker had significant exposure to noxious noise, as required by the policy, while working for other employers in Manitoba from 1974 to 1987. Accordingly, the panel finds that the worker’s claim for non-specific noise induced hearing loss is not acceptable.

In making this decision, the panel accepts that the worker may have a noise-induced hearing loss, but is not able to find, on a balance of probabilities, having considered all the evidence, that the hearing loss is caused by the worker’s exposure to noise in the workplace in Manitoba.

The appeal is denied.