The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker in this case is seeking to establish that her hearing loss relates to her employment as a presser in a dry cleaning establishment between the years 1939 to 1965. Earlier levels of WCB adjudication in this case have failed to establish her employment with this particular employer during that period of time, and have also been unable to determine whether the worker would have been exposed to the noise levels required under WCB Policy dealing with noise-induced hearing loss claims.

For the panel to agree with her, we would have to establish firstly that she was indeed employed in the industry in Manitoba long enough, and in job duties that meet the noxious noise standards set out in WCB policy. We were able to make those findings, and thus find that the worker’s claim for work-related noise-induced hearing loss is acceptable. Our reasons follow.

Legislation:

The Appeal Commission is required under its enabling legislation to make its decisions in accordance with The Workers Compensation Act (the Act) and relevant WCB Policies.

Long term hearing loss claims are adjudicated under the “occupational disease” provisions of the Act, and in particular subsections 4(1), 4(4), and 1(1) of the Act.

Subsection 4(1) of the Act requires that the worker’s accident must arise out of and in the course of her employment (with an employer registered in Manitoba).

Subsection 1(1)(c) defines an accident as including an occupational disease. This subsection later defines occupational disease as “a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;”

As to the relevant hearing loss policies for this case, the panel notes that WCB has established June 4, 2000 as the claim date, being the date when an audiogram first confirmed a hearing loss. This particular date means that WCB Policy 44.20.50.20, Hearing Loss, will apply, as it deals with claims established after April 1, 2000. This policy states in part that:

2. Claims for long-term exposure to noxious noise may be considered and paid on the basis of a claimant’s exposure with employers who are or had been registered in Manitoba.

3. Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is 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. For every increase in noise level of 3 decibels, the required exposure time will be reduced by half.

Analysis

As noted earlier, the significant passage of time (over 30 years) has made it difficult to collect the types of evidence usually required under the WCB Policy to establish a hearing loss claim. The panel has, however, solicited additional evidence as part of its enquiry process, and has considered this additional evidence in its deliberations.

Employment History

The worker has asserted that she worked in two locations with the same employer on a continuous basis from 1939 to 1965, with the exception of short leaves of absence when her children were born. She worked as a presser with the employer on a full time basis, averaging 10 hour shifts.

The WCB contacted her employer regarding their employment and payroll records. The employer was able to acknowledge that the worker had been employed with them, but because of the passage of time, could not confirm specific periods or noise level testing during her employment. Ultimately, even Canada Pension Plan records could only confirm employment from 1966 (her last year with the Manitoba employer) and forward. The employer had no prior records, and likewise, the worker had no documentation as to her earlier employment.

However, in her submissions to the Appeal Commission, the panel noted the worker’s reference to a co-worker with whom she had worked for many years at the Manitoba employer. She provided contact information for the co-worker. The panel contacted the co-worker and was able to determine that he did in fact work with the co-worker for many years with this particular employer prior to 1965, although he could not be specific as to which locations. He also confirmed that the worker did work on the pressing machines.

Given the considerable passage of time, this is the best available evidence to the panel as to the worker’s employment history. The panel notes that the worker’s employment was confirmed by the employer’s records, and that there was reasonable conformity between the worker’s last records of employment in Manitoba, and what the worker reported to the WCB when she initiated her claim. The panel finds it reasonable to infer, going back in time, that the worker had indeed been continuously employed with the Manitoba employer prior to that last six months, especially with the corroboration later provided by a co-worker. The panel therefore finds on a balance of probabilities that the worker was employed as a presser with the Manitoba employer for many years preceding 1965.

Exposure to Noise

The WCB Policy cited above requires that a worker be exposed to noise levels of 85db for 8 hours per day, over a period of at least two years.

The worker, in her submission to the panel, advised of two different worksite locations where she had worked for the employer. There was no information on the file as to the noise levels at those locations.

The panel subsequently wrote to the Manitoba Department of Labour & Immigration’s Workplace Safety and Health Department, to determine if there were records of noise level testing in those locations.

The panel did receive information on noise testing done at three other locations operated by the employer in the 1980s and the 1990s. The test results deal with a broad array of pressing machines.

The panel notes that while this information does not deal with the worker’s specific job location, it does provide considerable insight as to the job hazards “peculiar to or characteristic of a particular trade or occupation.” In other words, the panel is able to obtain from these test results a profile of the noise levels that a typical presser would have dealt with on a daily basis.

In this particular case, data from the three different locations describe noise levels for pressing machines. At one location, the pressing stations are rated at 99, 97, 95, and 75 db, while at the second location they are rated at 99db and 89db. The panel notes that these noise levels are on average sufficient to meet the exposure standards set out in the WCB’s hearing loss policy for a worker who has had at least two years of full time non-hearing protected exposure to that particular work environment.