Decision #42/09 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board (“WCB”) for noise induced hearing loss. The worker is currently appealing a decision made by Review Office in which it was determined that he was not entitled to a permanent partial disability (“PPD”) award in relation to his hearing loss. A file review was held on January 15, 2009 to consider the matter.
Following the file review on January 15, 2009, the appeal panel requested and obtained additional information from the WCB’s ear, nose and throat consultant. This information was forwarded to the interested parties for comment. On March 10, 2009, the panel met to render its final decision on the issue under appeal.
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
In March 2008, the worker filed a claim with the WCB for noise induced hearing loss that he related to his years of employment with the accident employer from 1968 to 2008.
On August 22, 2008, the worker was advised that his claim for noise induced hearing loss had been accepted. However, his hearing loss was not rateable and he did not qualify for a PPD award. The worker was advised of the criteria used by the WCB to establish a rateable hearing loss. As his hearing test on May 5, 2008 indicated the average loss of hearing in his right ear was 42.50 decibels and the average loss of hearing in his left ear was 33.75 decibels, his hearing loss was not considered rateable.
In September 2008, the worker provided the WCB with a new audiogram report dated September 8, 2008.
On October 30, 2008, a WCB adjudicator noted that the worker retired on April 4, 2008 and that the decision to deny him a PPD rating was based on a hearing test dated May 5, 2008. As the WCB reviewed his eligibility for a PPD based on a hearing test after his retirement, any deterioration in his hearing following retirement would not be related to his noise exposure in Manitoba. Thus, there was no basis to review further entitlement to a PPD award. On November 7, 2008, the worker appealed the decision to Review Office.
On November 26, 2008, a WCB Review Officer documented the following discussion he had with the WCB’s ear, nose and throat specialist:
“…He advised that the May 5, 2008 audiogram was not rateable (just short of the threshold) while the September 8, 2008 audiogram was just into the rateable range. He stated that the May 8, 2008 audiogram would be used for rating purposes as this testing occurred soonest after his removal from noxious noise in the workplace. [The ear, nose, throat consultant] indicated that normal deterioration due to aging or lack of controls in the latter audiogram could have resulted in the increase in the worker’s hearing loss.”
In a decision dated November 26, 2008, Review Office determined that the worker was not entitled to a PPD award. Review Office indicated that the May 5, 2008 audiometric testing did not qualify the worker for a PPD, as the average loss in his left ear was less than 35 decibels and there was not a 30 decibel difference between the hearing loss in his left and right ears. Review Office disagreed with the worker’s argument that the September 8, 2008 audiogram should be used for rating purposes given that the worker was not exposed to noxious noise in the workplace after the testing which was performed on May 5, 2008. Review Office also considered the opinion of the WCB nose, ear and throat specialist that the difference between the two audiograms could reflect the normal aging process or failure to adhere to pre-testing protocol and that the audiogram which was performed soonest after a worker’s retirement would be the preferable assessment for rating purposes. On November 27, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Policies
WCB Policy 44.20.50.20, Hearing Loss states:
1. Noise induced hearing loss occurs gradually – often over several years – and most hearing-loss claims do not involve a loss of earnings. For these reasons, it can be difficult to determine when the impairment began. For the purposes of this policy, the date of accident will be:
a) The date a loss of earnings has occurred, or
b) The date of an audiogram which shows evidence of noise-induced hearing loss.
The decision on establishing the date of accident is separate from the decision on whether there is a degree of impairment that warrants a permanent impairment award. Evidence sufficient for determining the date of accident may be insufficient for determining the degree of impairment.
An audiogram used for rating purposes must be made by a certified audiologist. An audiogram used to determine the date of accident may be made at a work-site and need not be made by a certified audiologist.
This hearing loss claim was established as a 1991 claim. WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule applies to this matter. On page 21, the policy states that I.S.O. audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz. It then states that “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 in accordance with the following schedule…”
The policy also includes a section dealing with Unilateral Hearing Loss, stating: “When dealing with unilateral hearing loss, the chief cause of impairment is due to loss of stereocusis (stereocusis enhances speech discrimination and localizes the source of sound). Where the loss in one ear exceeds the standard 35 decibels and the other ear is within the non-rateable range, an impairment is not awarded unless the difference is 30 decibels or more.”
The Appeal Commission is required to follow The Workers Compensation Act (the “Act”), the regulations, and policies of the WCB Board of Directors when it makes its decisions.
The Worker’s Position:
In his written submissions, the worker’s position is that although his May 5, 2008 audiogram does not meet the policy guidelines for a rateable hearing loss impairment, a later audiogram performed on September 8, 2008 did move him into the rateable range. In particular, the second audiogram showed enough of a worsening in his left ear hearing loss to move both ears into the 35 decibel or more range, and thus entitle him to a permanent partial disability award.
Analysis:
For the worker to be successful in his appeal, the panel would have to find that the worker’s hearing loss is rateable, in accordance with the hearing loss calculation policies that apply to the worker’s claim. The panel was not able to make this finding. Our reasons follow.
At the outset, the panel notes that the worker has suffered hearing loss in both ears, and is in fact receiving support from the WCB for hearing aids for both ears. The issue before the panel is whether the hearing loss is sufficient to trigger a permanent impairment award under WCB policy.
The panel notes that the May 5, 2008 audiogram places the worker very close to, but below the threshold established by WCB for a rateable hearing loss. The interpretation of the May audiogram by the WCB medical consultant places the right hearing loss at 42.5 decibels, and the left hearing loss at 33.75 decibels. This leaves the worker with a non-rateable hearing loss, as both ears are not rated at 35 decibels or more, and the difference between the two ears is substantially less than the 30 decibels difference required by the permanent impairment schedule.
During its deliberations, the panel did seek clarification from the WCB medical consultant on the methods he used to calculate the worker’s left ear hearing loss. In particular, the panel noted that there were two different readings (60 and 65 decibels) on the May 2008 audiogram at the 3,000 hertz frequency level, and that the WCB medical specialist had chosen to use the 60 decibel number with the annotation “60 BC.” The impact on the worker’s appeal was potentially significant, as the use of 65 decibels would have been sufficient to increase the rating of the worker’s left ear hearing loss to 35 decibels, and make his overall hearing loss rateable.
In a memo to the panel dated February 11, 2009, the consultant advised that BC meant bone conduction. The May 5, 2008 audiogram measured and marked the left ear bone conduction threshold at 60 decibels, and the air conduction threshold at 65 decibels, at 3,000 decibels. The consultant then described the difference in the two tests, in particular that air conduction tests also add in hearing loss that is associated with conductive hearing loss, which is not related to noise exposure. This does not happen with bone conduction threshold testing. For these reasons, he concluded that “For PPI calculations we use bone conduction thresholds if they are better [a lower number] than air conduction thresholds.”
The panel accepts the opinion and rationale of the WCB medical consultant, and confirms that the May 5, 2008 audiogram has been correctly interpreted as showing a right hearing loss of 42.5 decibels and a left hearing loss of 33.75 decibels. These findings place the worker’s hearing loss below the threshold established in the WCB policy, and the hearing loss is not rateable on the basis of the May 5, 2008 audiogram.
The worker has also argued that the September 8, 2008 audiogram should be considered instead.
This audiogram provided a right hearing loss of 46.25 decibels, and a left hearing loss of 37.5 decibels, which would place the worker above the policy thresholds for impairment rating.
The panel notes that the worker left the workforce (and any associated work noise exposure) at the end of February 2008. The May 2008 audiogram was the first opportunity to measure the worker’s hearing loss following his work career, and the panel finds it therefore to be the most valid assessment of the work-associated noise-induced hearing loss suffered by the worker. While the second audiogram does show a further deterioration of hearing, the panel cannot attribute that loss to work exposure. As well, the panel notes that both audiograms were done by certified professionals and there are no indications of errors in testing or other anomalies that would compel the panel to eliminate the May 2008 audiogram in favour of the September 2008 audiogram.
Based on these findings, the panel concludes on a balance of probabilities that the worker’s hearing loss, as measured and calculated in May 2008, is below the rating threshold set out in WCB policy. Accordingly, the worker is not entitled to a permanent partial disability award for his hearing loss.
The worker’s appeal is therefore denied.Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 27th day of March, 2009