Decision #20/08 - Type: Workers Compensation
Preamble
A file review was held at the Appeal Commission on January 23, 2008 at the worker’s request.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
The worker filed a claim with the Workers Compensation Board (WCB) on June 4, 2007, claiming that his hearing problems – bilateral tinnitus – were caused by his job duties as a telephone-based customer services representative. After receiving the Report of Injury, the WCB collected information from various medical practitioners involved with the worker, and additional information from the employer and the worker regarding his job duties.
In a Doctor’s First Report dated May 7, 2007, the treating physician stated the worker had bilateral tinnitus since 2005 that became worse at work.
The next medical report was from an ear, nose and throat specialist dated January 24, 2007. He confirmed that the worker had bilateral tinnitus for a couple of years although it was predominantly right sided. He noted that the worker did technical support on phones over the last six years. He wore a headset in his right ear and had continuous noise towards that right ear. He was now quite sensitive to the noise. The family history was negative for hearing loss and the worker had a minor head trauma in the past. The specialist reviewed an audiogram which showed a mild loss in the right ear at 6000 hertz. There was a mild drop in the left ear at 8000 hertz. The specialist suspected that it was probably the noise exposure that led to the right hearing loss as well as the tinnitus. An MRI was arranged to rule out an acoustic neuroma. The results, dated March 16, 2007, noted that an acoustic neuroma was not identified.
An audiogram report is on file dated December 11, 2006. It showed minor losses of hearing at 6000 HZ in his left ear and at 8000 HZ in his right ear.
On May 30, 2007, primary adjudication advised the worker that the WCB received information from his audiologist which indicated that he had a hearing loss. If he was relating his condition to his employment, the worker was asked to complete and return a Worker’s Hearing Loss Report and Work History Summary.
In the worker’s claim for hearing loss, he said he first was aware of a hearing problem in the spring/summer of 2005. He reported his hearing problem to his team leader. He said his hearing loss was sudden and variable. He noted that an incoming call tone in his earpiece would often start the ringing. The worker indicated that in 1986 and 1989 he had stitches to his head as a result of playing football. He noted that he had his hearing checked twice for air traffic control in 1990 and 1995. The worker indicated that he has taken part in snowmobiling, farm machinery operation, home power tools, loud music and right handed hunting/shooting. He was in the Navy reserve (summer program) from July 1986 to August 1986. The worker attributed his hearing loss to employment with his current employer (incoming call tone and background noise including customers who often worked in warehouses or had to increase volume to hear them). He said he was never exposed to a loud blast or explosion.
On September 11, 2007, the worker advised his adjudicator that he was missing a significant amount of work due to ringing in his ears that he related to his present work duties. At the beginning of each call, the worker hears a “bong” sound that seems to make his ringing worse. He also has to turn up the volume on his headset to hear some of his customers. The worker indicated that he really was not exposed to much loud noise with any prior employers. He could not recall being exposed to any loud noise prior to developing tinnitus.
In a decision dated September 12, 2007, the worker was advised that the WCB was denying his claim for hearing loss and tinnitus. The reasons for the decision were outlined as follows:
· He was not exposed to noise levels above 85 decibels according to his current employer;
· He was not exposed to loud noise with his previous employers;
· The file information did not confirm that his tinnitus condition was work related.
The case was then considered by Review Office on November 1, 2007 based on an appeal submission by the worker dated October 8, 2007. Review Office stated the decibel levels involved with working in a call centre would not be at the 85 decibel level and therefore the claim did not qualify as a compensable noise induced hearing loss claim. According to policy, if it does not qualify as a compensable noise induced hearing loss claim, then the claim for tinnitus cannot be accepted. On November 8, 2007, the worker appealed Review Office’s decision and a file review was arranged.
Reasons
The worker in this case is seeking to have his bilateral tinnitus condition accepted as a WCB claim. For the worker to be successful, the panel would have to establish that the worker had a workplace accident, in accordance with The Workers Compensation Act (“the Act”) and WCB policy dealing with hearing loss and tinnitus. The panel was unable to make these findings, as noted in the analysis below.
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. “Occupational disease” is defined 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.
The WCB Board of Directors has passed WCB Policy 44.20.50.20, Noise Loss, which sets out very specific technical 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. 4. Tinnitus is a perception of sound in the absence of an acoustic stimulus. It may be of a buzzing, ringing, rushing, whistling or hissing quality. It may be intermittent or continuous. Claims for tinnitus are compensable if the tinnitus is associated with the noise-induced hearing loss and there is a history of 2 or more years of continuous tinnitus. [emphasis added] The worker’s position: The worker’s written submissions argue that background noise and the telephone headsets at work have caused his tinnitus condition, and that his medical practititioners support that his work caused this condition. The worker also argues that WCB policy is flexible about the amount of noise-induced hearing loss (NIHL) needed, in order for there to be an accepted tinnitus condition. Analysis: As noted above, the panel is bound by the specific criteria set out in WCB Policy 44.20.50.20, which lays out the basis for considering and accepting various hearing loss claims. The wording of paragraph 4 makes it clear that tinnitus can only be accepted where there is also an accepted noise-induced hearing loss. This interpretation of the criteria is consistent with standard rules for interpretation – the use of the word “and” means that both parts (the noise-induced hearing loss as defined elsewhere in the policy, plus the tinnitus for at least two years) must be present and satisfied, for the tinnitus condition to be accepted as a workplace accident. The evidence on the file, though, does not establish that the worker has established a noise-induced hearing loss claim with the WCB. Information from the employer does not demonstrate that the work environment has noise levels of 85 decibels for 8 hours of exposure on a daily basis for a minimum of two years, nor is there evidence of the worker having an acoustical trauma at work, nor is there medical evidence (by way of audiogram or other diagnostic tests) that the worker has actually suffered a rateable or compensable noise-induced hearing loss. This leaves the worker in the position of having a bilateral tinnitus condition developing in 2005, without an associated compensable or work-related noise-induced hearing loss. Under these circumstances, the panel finds that the requirements of the policy have not been met (the co-existence of the two conditions), and there is thus no basis under which the worker’s tinnitus condition can be accepted. The worker’s appeal is therefore denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 31st day of January, 2008