The Appeal CommissionThe Workers Compensation Act of Manitoba

This case deals with a worker who was employed in a bakery from 1967 until 2002, and is seeking to establish a WCB claim on the basis that his hearing loss is causally related to noise exposures in that particular workplace.

For the panel to agree with the worker, we would have to establish the worker was employed in a workplace environment that meets the noxious noise standards set out in WCB policy, and thus meets the definition of an accident under The Workers Compensation Act (the Act). After considering of all the evidence on file and at the hearing, we were unable to make those findings. We therefore find that the worker’s claim for work-related noise-induced hearing loss is not acceptable. Our reasons follow.

Legislation

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

Subsection 4(1) of the Act requires that the worker’s accident must arise out of and in the course of his 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;”

Long term noise-induced 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.

The WCB Board of Directors has also passed WCB Policy 44.20.50.20, Hearing Loss, which sets out specific criteria for noise-induced hearing loss claims. 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.

The Worker’s Position

The worker and his advocate described the general nature of the workplace as well as his job duties in a bakery. They describe the workplace as being very noisy, especially with the combined noise of nearby machines. They described the bread slicer as being particularly noisy.

In response to the panel’s questions about the noise level surveys that were on the file and in particular the absence of readings over 85db, the worker and his advocate did not have specific concerns regarding the accuracy of the surveys. The worker argued that it was his over 30 year cumulative exposure to a generally noisy environment, even if it was below 85db, that led to his hearing loss.

Analysis

As noted above, the panel is bound by the Act and relevant policies of the WCB Board of Directors. The particular type of claim in this case – noise-induced hearing loss – was specifically addressed by the WCB Board in Policy 44.20.50.20. This policy sets out specific technical information regarding the levels of noise that must be present in the workplace, and how long the worker needs to have been exposed to those noise levels. The policy states that the worker must be exposed to noise levels above 85db, and that there has to be a continuous exposure at those levels for at least two years, for 8 eight hours per day.

There were no noise level surveys for the specific workplaces at which this worker was employed. However, the evidence on file shows that a noise level survey was taken at a similar workplace which was operated by the same employer in 1986. This is approximately half way through the worker’s job history with the employer. This particular noise level survey was taken by a government department as a specific response to a complaint by a worker, and was thus taken during the normal operations of the workplace. An additional noise level survey from a comparable facility operated by the employer in another province was also on file.

The panel notes that the survey covers a number of operational areas, but that the bakery machinery has noise levels between 70 and 80db, and the bread slicer is rated at 70-72 db. The panel therefore finds that the minimum threshold noise levels set out in the WCB Policy have not been met. Further, the panel finds that the worker’s position – that a much longer exposure to a lower noise level will result in a similar noise loss – does not meet the criteria of the policy. In this regard, the panel notes that this policy does not provide any discretion to the panel, to substitute lower or different criteria for the technical criteria adopted by the WCB for adjudication of all noise-induced hearing loss claims.

The panel therefore finds that the worker was not, on a balance of probabilities, working for the employer in a work environment that exposed him to noise levels of 85db on a continuous basis for at least two years. As such, the requirements of WCB’s hearing loss policy have not been met, and thus the requirements of subsections 1(1) and 4(1) of the Act to establish a workplace accident also have not been met. The panel therefore finds that the worker’s claim is not acceptable.