Decision #68/08 - Type: Workers Compensation
Preamble
The worker filed a hearing loss claim with the Workers Compensation Board (“WCB”) in 1988. His claim for hearing loss was accepted by the WCB but the worker was advised that his hearing loss was insufficient to warrant a Permanent Partial Disability (“PPD”) award. This decision was confirmed by Review Office on February 12, 2008. The worker disagreed and filed an appeal with the Appeal Commission and a file review took place on April 9, 2008.Issue
Whether or not the worker is entitled to a Permanent Partial Disability Award.Decision
That the worker is not entitled to a Permanent Partial Disability Award.Decision: Unanimous
Background
On August 29, 1988 the worker filed a claim for hearing loss with the WCB. He related his claim to his employment as a hotel manager for the period 1976 to 1978. He indicated that he first became aware of problems with his hearing in 1985 to 1986 and that it came on gradually. He stated that he had difficulty understanding conversations because of his hearing loss. The worker provided the WCB with a list outlining his work history between 1963 and 1988. As well as being a hotel manager, the worker had been a professional musician, in the armed forces and worked six months underground.
In order to adjudicate the claim, the WCB obtained information from the accident employer, the worker’s treating physicians and audiometric test results. The WCB then referred the worker to an otolaryngologist for further testing. In his report dated October 3, 1990, the otolaryngologist indicated that the worker’s hearing loss was fairly characteristic of acoustic trauma.
After consulting with the WCB’s medical officer specializing in hearing loss claims, the worker was advised on October 29, 1990 that his claim for hearing loss had been accepted by the WCB, however, his hearing loss was not of a sufficient degree to entitle him to a disability award. The decision noted that the worker’s average loss of hearing in his right ear had been calculated at 21.25 decibels and the average loss of hearing in his left ear had been calculated at 33.75 decibels. The worker was advised that should his hearing loss deteriorate and he continued to work in a noisy environment, the WCB would again review his claim.
The next contact from the worker was in October, 2007. Subsequently, the WCB received a report which showed that the worker underwent hearing loss testing on December 10, 2007. The report also indicated that the worker was a candidate for binaural amplification hearing or digital aids. The report was then reviewed by a WCB ear, nose and throat specialist on January 22, 2008.
On January 22, 2008, the worker was advised that the recent information showed that he had an increase in the amount of his hearing loss when compared to his last assessment of 1990, however, his hearing loss did not fall within the rateable range as defined by the WCB. The worker was advised that the WCB’s standard was an average deficit of 35 decibels or over in each ear. As the worker’s right ear hearing loss was 29.50 decibels and his left ear was 40.75 decibels, his condition was not considered rateable for the purposes of a PPD award. The worker was also advised that the WCB would assume medical aid responsibility for the use of 2 hearing aids.
On January 25, 2008, the worker called the WCB to enquire why he was not entitled to an impairment award. The worker noted that the WCB’s website stated that levels must be 25 decibels in each ear which would mean he qualified for an impairment award. The adjudicator advised the worker that this legislation applied to hearing loss claims after April 1, 2000. As his hearing loss occurred prior to April 1, 2000, the legislation indicated that levels had to be 35 decibels in each ear.
The worker appealed the WCB’s decision that he was not entitled to a disability award. The case was forwarded to Review Office for consideration.
On February 12, 2008, Review Office confirmed primary adjudication’s decision of January 22, 2008. Review Office indicated that the worker’s claim had to be adjudicated under the legislation that related to claims that pre-dated April 1, 2000. The policy used for claims from 1988 indicated that there must be a deficit of 35 decibels in each ear to be deemed a rateable impairment and therefore his most recent hearing tests did not meet that standard. On February 20, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
As the worker’s claim was made in 1988, his benefits are assessed under The Workers Compensation Act (the “Act”) as it existed at that time. Payment of compensation for permanent disability was provided for under subsections 4(9) and 40(1) of the Act, which read as follows:
Permanent disability
4(9) The board may award compensation under this Part in respect of the permanent disability suffered by a worker but without temporary total disability.
…
Permanent partial disability
40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.
For hearing loss claims arising on or before March 31, 2000, WCB policy 44.90.10.02 (the “Policy”) provides guidelines for calculating impairment awards. Attached to the Policy is a Permanent Impairment Rating Schedule (the “Pre-April 2000 Schedule”). The Policy provides that impairment ratings are to be established strictly in accordance with the schedule whenever possible and reasonable. The “Impairment of Hearing” section of the Pre-April 2000 Schedule provides that:
When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz.
In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear and the hearing loss in decibels is converted into percentage of impairment…. (emphasis added)
It is to be noted that effective April 1, 2000, the guidelines for establishing hearing loss claims were revised (herein referred to as the “Post-April 2000 Schedule”). Under the Post-April 2000 Schedule, the requirement for a 35 decibel minimum average of the four speech frequency levels was deleted and the new method of calculating a ratable hearing loss only requires an average hearing loss of 25 decibels in each ear.
Worker’s Position
The Appeal of Claims Decision form submitted by the worker outlines two reasons why he believes the Review Office decision should be overturned. First, he indicates that it is discriminatory. He states that the WCB Policy is discriminatory in nature in that it penalizes all hearing impairments that could qualify because of the changes in the threshold criteria. Second, he says that it does not recognize the changes in his hearing loss, i.e. the deterioration in his hearing levels between 1988 and 2008.
Analysis
The issue before the panel is whether the worker is entitled to a PPD award in recognition of his noise induced hearing loss. Under the Act, workers may be entitled to a PPD award for hearing loss which results from workplace exposure to noise.
In the present case, the worker filed his claim for hearing loss in 1988, which was approximately 10 years after he had ceased employment with the employer. The earliest audiogram available is based on an examination conducted May 3, 1986 (approximately 8 years after he ceased working for the employer). According to the May 1986 test results, the worker’s average hearing loss was 40 decibels in his left ear, and 23.75 decibels in his right ear. The pre-April 2000 Schedule provides that in order to merit a PPD award, the average of the four speech frequency levels must be 35 decibels in each ear. As the average hearing loss in the worker’s right ear was only 23.75 decibels, he did not qualify for a PPD award.
In this appeal, the worker relies on new audiological tests conducted in December, 2007 which now indicate that in his right ear, his average hearing loss is 29.5 decibels. The average hearing loss in the left ear is 40.75 decibels. Although the worker has suffered an increase in his loss of hearing, we are unable to find that he is now entitled to a PPD for the following reasons:
- The worker did not return to a high noise environment with either the subject employer, or any other Manitoba employer, since he filed his claim in 1988. As he did not have further exposure to work-related noise from a Manitoba employer during the relevant time period, we are unable to find that the worker’s increased impairment resulted from a workplace accident.
- Although the increased loss of hearing could qualify as a rateable impairment under the Post-April 2000 Schedule, adjudication of the worker’s claim remains under the Pre-April 2000 Schedule. As the worker does not meet the 35 decibel average loss of hearing in his right ear, he does not qualify for a PPD award.
The worker argued that the Policy is discriminatory because it is arbitrary in nature and denies benefits to workers who meet the current hearing loss criteria but suffered their hearing loss at an earlier date. It is true that the Policy creates a cut off date and only those workers whose claims arise from accidents after April 1, 2000 get the benefit of the lower 25 decibel threshold. The workers compensation system is constantly evolving and being updated to reflect changing technology and modern attitudes. Unfortunately, in so doing, some seemingly arbitrary dividing lines may be unavoidably created. While it may seem unfair and somewhat random, little can be done to avoid this result. Subsection 60.8(6) of the Act provides that the Appeal Commission and its panels are bound by the policies of the Board of Directors. We are required to apply the Policy as written, and the Policy clearly indicates that the reduced threshold of 25 decibels applies only to hearing loss claims arising on or after April 1, 2000.
As to the specific grounds of discrimination claimed, the worker argues that the differential treatment based on the timing of his injury effectively creates two classes of injured workers. The panel notes that allegations of discrimination are typically dealt with under the Canadian Charter of Rights and Freedoms or The Manitoba Human Rights Code (the “Human Rights Code”). The panel is precluded by the Act from considering Charter issues, and therefore will restrict its comments to the Human Rights Code. The panel has considered the worker’s allegations of discrimination and finds that there has not been a breach of the Human Rights Code. The reason is because the differential treatment being complained of by the worker is not based on any of the enumerated grounds listed in the Human Rights Code. Temporal distinction alone does not amount to discrimination.
For the foregoing reasons, the panel finds that the worker is not entitled to a PPD award. The appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 22nd day of May, 2008