The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

Long term hearing loss claims are adjudicated under the “occupational disease” provisions of the Act. 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 the WCB has established May 8, 2007 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 (the “Policy”) will apply, as it deals with claims established after April 1, 2000. The 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.

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.

Worker’s Position

The worker’s evidence was that she worked for the accident employer for 40 years, and for 26 of those years, she worked with the machines constantly, eight hours per day. She identified the noise as being the worst during the period 1974 (when she returned from a six year absence from the workplace to have her children) to approximately 1983, when the employer moved to a new location. During that 9 year period, she worked in an area referred to as “the vault”. There were several synchro machines located in the vault and they made a loud noise, which she likened to a motorboat. The worker denied that the noise was like a photocopier. She also alleged that since the machines were located in the vault, the noise was amplified. When they moved to the new building, the machines were replaced with newer models which still made constant noise, but were not as loud. When asked when she started to notice that her hearing was not good, the worker indicated it was in about 2000. She attributed her hearing loss to the constant exposure to noise for 26 years of working with the synchro machines.

Analysis

The worker in this case is seeking to establish that her bilateral hearing loss relates to her employment between the years 1956 to 1968 and 1974 to 2002. In order for the worker’s appeal to be successful, the panel must find that during the course of her employment with the accident employer, the worker was exposed to levels of noxious noise set out the Policy. On a balance of probabilities, we are not able to make that finding.

The worker alleged that the machines with which she worked caused a significant amount of noise which contributed to her hearing loss. Unfortunately, due to the passage of time, the machines have been replaced and upgraded with newer models and so noise level testing cannot be conducted on the equipment. A noise level survey was conducted on the newer equipment on July 2, 2007, which indicated noise levels of 75 – 76 decibels. These levels are significantly lower than the Policy requirements of an average of 85 decibels. The recollection of a co-worker was that the old machines were quieter than the new ones. In the worker’s opinion, the old machines were louder. Another co-worker also thought that the old machines were noisier. In the circumstances, we are not able to place much weight on the results of the noise level survey.

Following the hearing, the panel requested the employer to make investigation into the manufacturer and model number of the equipment, but after 30 years, that information is no longer available. No record was kept regarding the machines.

As there is no technical information available to corroborate the worker’s position on the amount of noise in the workplace, the panel must rely on the secondary evidence of co-workers. None of the co-workers who worked side by side with the worker could be located or reached by the WCB. The WCB did speak with four individuals who worked in the same department as the worker during the time in question and were familiar with the workplace environment (although none worked directly with the machines). Their observations were as follows: