The Appeal CommissionThe Workers Compensation Act of Manitoba

This matter came before a panel of the Appeal Commission by way of a non-oral review.

The issue before the panel was whether the worker's permanent partial impairment ("PPI") award of $2,060.00, based on an impairment rating of 2%, is correct.

In his appeal the worker submitted that the quality of his hearing was decreasing. He also stated that the ringing in his ears was increasing and was becoming quite unbearable. Subsequent to the filing of his appeal the worker's physician submitted the results of an audiogram taken April 20, 2007. The previous audiogram upon which the WCB Medical Advisor had calculated the worker's PPI award, had been performed on February 22, 2006. Accordingly at the end of its review hearing the panel requested that the WCB Medical Advisor review the more recent audiogram and recalculate, if warranted, the worker's PPI award.

The WCB Medical Advisor's calculations showed that although the more recent audiogram of April 20, 2007 indicated a slight increase in hearing loss in both ears, that loss was not significant enough to change the actual whole body impairment rating for hearing loss as calculated according to the Permanent Impairment Rating Schedule. There was no change, therefore, to the impairment rating for hearing loss.

The rating for tinnitus also remained at 2%. That rating is not subject to variation, as per the provisions of the Permanent Impairment Rating Schedule for Hearing Loss.

For better understanding, the legislative scheme which governs this appeal is set out below. 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) of the Act 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:

Determination of impairment

38(1). The board 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. The 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 a Permanent Impairment Rating Schedule which is the subject of Policy 44.90.10. 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.

In considering the worker's appeal in this case, the Appeal Commission is bound by the Act and policies of the WCB, including Policy 44.90.10, the Permanent Impairment Rating Schedule.

The impairment of hearing section of that schedule contains two tables: one for the calculation of hearing loss and impairment and the other which allows for converting hearing impairment to whole person impairment. The whole person impairment figure is then used to determine what dollar amount is to be awarded as the result of impairment. The impairment of hearing section, in addition to allowing for calculations relating to hearing loss, sets out a percentage impairment which is awarded when a worker is found to have tinnitus secondary to noise-induced occupational hearing loss.

According to the Permanent Impairment Rating Schedule, calculating impairment due to loss of hearing involves three steps:

1) Calculating the percentage of hearing loss in each ear.

2) Calculating the combined percentage of hearing loss.

3) Converting the loss of hearing to an impairment of the whole person.

The schedule sets out a formula which allows for the determination of binaural hearing impairment. The formula refers to a table established by the Board in its rating schedule which converts the amount of hearing loss as measured in dB to a number expressed in percentage of impairment. That number is in turn used in a formula which is also established by the Board, to determine the total percentage of hearing impairment.

A further calculation is done to convert the impairment of hearing to impairment of the whole person.

In this case, the WCB Medical Advisor reviewed the audiogram of April 20, 2007 and recalculated the worker's impairment due to loss of hearing. Although the audiogram revealed a slight increase in hearing loss in both ears, that slight increase did not translate into any change in the calculations used to determine impairment of the whole person as per the Permanent Impairment Rating Schedule.

The Impairment of Hearing section of the Permanent Impairment Rating Schedule sets out a single and invariable percentage impairment rating for tinnitus. Specifically, the schedule provides:

"D. Tinnitus

12. Tinnitus, when secondary to noise-induced occupational hearing loss, is rated as a 2% impairment of the whole person."

The 2% impairment rating awarded when tinnitus secondary to noise-induced occupational hearing is found, therefore, does not vary. It is not an amount which fluctuates or is in any way tied to the extent to which the worker is affected by or experiences the symptoms of tinnitus.

In this appeal the worker has specifically asked the panel to consider whether his PPI award of $2,060.00 based on an impairment rating of 2% is correct.

In the worker's letter of June 23, 2007, he advised that the tinnitus has greatly reduced his quality of life. He also stated that the noise he was subjected to during the many years that he worked in an oil refinery, at a time when hearing protection was not used, was significant. For those reasons he submitted that the 2% allotted in his case was not sufficient and he therefore requested an appeal of that award.

Impairment Rating

The panel has reviewed the calculations performed by the WCB Medical Advisor in assessing whether or not the worker had an impairment rating for hearing loss. We find those calculations to be accurate. We further find that the Medical Advisor's assessment confirming the impairment rating of 2% on account of tinnitus is also accurate. Neither the Act nor the Rating Schedule set out in Policy 44.90.10 allows for any variation to the impairment rating associated with a finding of tinnitus. A 2% impairment rating for tinnitus in this case, therefore, is correct.

Amount of Award

Subsection 38(2)(a) provides that:

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 30%: $1,030. for each full 1% of impairment;

In this case, therefore, the dollar award of $2,060.00 for an impairment rating of 2% is an accurate and correct amount.

The panel is entirely sympathetic to the worker's experience of the symptoms of tinnitus. The ringing in his ears which he reports to experience must indeed be of great discomfort. As stated above, however, the impairment rating for tinnitus set out in the Permanent Impairment Rating Schedule to Policy 44.90.10 is 2%, regardless of the extent of the tinnitus or the manner in which it is experienced by the worker. The award is not tied to any other factor other than the finding that tinnitus secondary to noise-induced occupational hearing loss is diagnosed.