The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for noise induced hearing loss that he attributed to his employment history in the automotive industry. The claim for compensation was accepted by the WCB. However, the worker was advised that his hearing loss condition was not considered rateable and that he did not qualify for a Permanent Partial Impairment (“PPI”) award. The worker disagreed and filed an appeal with the Appeal Commission. A file review then took place on February 26, 2008.

Issue

Whether or not the worker is entitled to a permanent partial impairment award in recognition of his noise induced hearing loss.

Decision

That the worker is not entitled to a permanent partial impairment award in recognition of his noise induced hearing loss.

Decision: Unanimous

Background

On June 24, 2004, the worker filed a hearing loss claim with the WCB. On his application form for compensation, the worker indicated that he first became aware of a hearing problem in 1971 and that his hearing loss came on gradually. He attributed his hearing loss difficulties to the general nature of his employment activities between 1952 and 1994.

In an August 14, 2004 report, the worker’s treating otolaryngologist reported that he saw the worker on many occasions since 1985. He noted that the worker had been employed with gas stations for many years and had been exposed to lots of noise. The worker had recurrent serous otitis media bilaterally and had T-tube insertions, the last one being in 2000. On May 20, 2004, the worker had no tubes in his ears and there was no evidence of the serous otitis media.

Audiometric testing revealed bilateral sensorineural hearing loss, more pronounced on the left. The otolaryngologist indicated that the configuration of the audiogram suggested noise induced hearing loss.

On August 26, 2004, the worker advised the WCB that he was a service station manager for over 20 years which exposed him to loud noise. He performed hands on work with the cars and most of his time was spent in the shop. He said there was noise from the tire and hoist machines and there was a lot of hammering against metal. Power tools were also used.

The WCB arranged for the worker to undergo a complete audiological assessment on March 31, 2005. The test results were then reviewed by a WCB ear, nose and throat (“ENT”) consultant.

In a decision dated May 18, 2005, primary adjudication advised the worker that his claim for hearing loss had been approved and that the WCB would pay for two hearing aids. He was further advised that his hearing loss condition was not considered rateable and that he did not qualify for a PPI award.

On May 25, 2005, the worker contested the WCB’s decision that he was not entitled to a PPI award. He said he has had a hearing impairment since the 1960’s. He was held back from furthering his career due to his hearing loss and not being able to hear all that was said at meetings or at gatherings.

On June 3, 2005, Review Office confirmed that the worker was not entitled to a PPI award in recognition of his noise induced hearing loss. Review Office noted that the WCB established permanent impairment ratings for work related injuries and conditions using a rating schedule adopted under WCB policy 44.90.10.02. It stated that the WCB’s rating schedule stipulates that for a worker to be entitled to an impairment award, there must be an average of 35 decibel loss in each ear utilizing the 500, 1000, 2000 and 3000 hertz frequencies. The worker’s average loss was 37.5 decibels in his left ear but only 22.5 decibels in his right ear. In accordance with the accepted methodology for calculating impairment awards for noise induced hearing loss, the worker did not qualify for a PPI. On December 19, 2007, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Analysis

The issue before the panel is whether the worker is entitled to a PPI award in recognition of his noise induced hearing loss. Under the Act, workers may be entitled to a PPI award for hearing loss which is induced by noise in the workplace. Ideally, workers would be assessed for such awards at the time when they cease being exposed to the noxious noise. Unfortunately, this often is not done.

In the present case, the worker did not file a claim for his hearing loss until 2004, which was 10 years after he had ceased employment with the employer. By the time an audiological assessment was performed on March 31, 2005, the worker had been removed from exposure to the workplace noise for approximately 11 years. While this type of data is not ideal for calculating a PPI award, it was the best medical evidence that was available to the WCB to assess the worker’s hearing loss. According to the 2005 test results, the worker’s average hearing loss was 37.5 decibels in his left ear, and 22.5 decibels in his right ear. The Schedule to the Policy provides that in order to merit a PPI award, the average of the four speech frequency levels must be 35 decibels in each ear. As the combined average hearing loss in the worker’s ears was 30 decibels, he did not qualify for a PPI award.

The worker now relies on 2007 audiological tests which indicate that in his right ear, his average hearing loss is 56.25 decibels. The average hearing loss in the left ear is 70 decibels. While this level of hearing loss is significant and certainly exceeds the Policy’s threshold of 35 decibels, we are unable to attribute the more recent hearing loss to the worker’s employment. The worker is presently retired, and he has been since 1994. He did not have further exposure to work-related noise during the 2005 to 2007 time period. We are therefore unable to find that the worker’s increased impairment resulted from workplace exposure to noise.

The appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 4th day of March, 2008