Decision #126/09 - Type: Workers Compensation
Preamble
The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that his claim for noise induced hearing loss did not meet the requirements of WCB Policy 44.20.50.20, Hearing Loss. A hearing was held on November 5, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In April 2009, the worker filed a claim with the WCB for noise induced hearing loss that he related to his employment activities as an auditor which required him to attend off site noisy environments. The worker indicated that he began to develop hearing loss in February 1980 and that his hearing loss came on gradually.
On April 9, 2009, the worker told a WCB adjudicator that he performed audits wherever tax records were kept. He attended factories for 1 to 2 weeks and did auditing right in the factory and was not given an office. He was not provided with hearing loss protection. The worker indicated that he had hearing tests done at a hospital in September 1991 (not in the 1980’s as previously indicated) and at a hearing clinic in 2001.
The “Employer Hearing Loss Report” received at the WCB on April 16, 2009, indicated that there was nothing on file to support that the worker ever reported any hearing loss difficulties related to his employment. It was indicated that the worker began employment in November, 1973 and retired in July, 2005. As a tax auditor, the work was done in the office or at a company’s office. A tour of company operations may be involved but it would be a minor part of the job and would comply with company safety standards.
In a decision dated April 18, 2009, the worker was advised that the WCB was unable to accept responsibility for his claim. In making the decision, the adjudicator relied on the following information provided by the employer:
· that the worker had minimal exposure to noise and the majority of his time was spent in an office environment;
· that on occasion, the worker would perform audits at other companies and that the companies would have to uphold the safety procedures and provide hearing protection in noisy environments.
Based on the information, the WCB was unable to establish work related exposure to noise levels at or about 85 decibels for a sufficient period of time to establish a claim for noise induced hearing loss.
On April 21, 2009, the worker appealed the above decision to Review Office. The worker stated:
· He started working on November 3, 1973 and was given all the jobs that other auditors with more seniority did not want.
· He spent many days and weeks in noisy factory environments. Some factories were ill-equipped to accommodate any additional office staff and it was not unusual for the employer to take him to the noisiest corner of the factory.
· He never complained about noise to the employer as he wanted to make an impression on senior management.
· The worker indicated that current management were not aware of the working conditions he was subjected to in the early years of his employment.
In a decision dated June 10, 2009, Review Office accepted that the worker would have been exposed to some loud noise while performing audits in factories and that it was unlikely that the worker would have been provided hearing protection in the early 1970’s. Review Office, however, found no information to confirm that the noise the worker may have been exposed to was at or greater than 85 decibels or that his exposure was for 8 hours a day for a minimum of two years. On this basis, Review Office confirmed that the worker’s claim for compensation was not acceptable. On June 17, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
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;”
WCB Policy 44.20.50.20, Hearing Loss (the “Policy”) applies to claims arising from long-term exposure to occupational noise that causes hearing loss. 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 he started working for the employer in November 1973. One of the requirements of his job was to travel to the premises of companies being audited. The worker’s position was that while at these on-site audits, he was exposed to excessive noise which caused the profound hearing loss from which he now suffers. He indicated that his bilateral hearing loss was first noted in 1991 and had gradually worsened over the years. He was first fitted with hearing aids in 2001, but they have worn out and he is now on his second set. The second set are due for replacement and the worker was seeking medical aid from the WCB to cover the cost of the replacement hearing aids.
Analysis
The worker in this case is seeking to establish that his bilateral hearing loss relates to his employment as an auditor from 1973 to 2005. In order for the worker’s appeal to be successful, the panel must find that during the course of his employment with the accident employer, the worker was exposed to levels of noxious noise as set out in the Policy. On a balance of probabilities, we are not able to make that finding.
The worker’s submission alleged that while attending at the premises of audited companies, he was exposed to noxious levels of noise. The claim is somewhat unusual as one would not normally associate the profession of accounting with a noisy environment. In response to questioning from the panel, the worker’s evidence was that when out on an audit, in the majority of cases (70-80%), he would be given space to work in the executive office area of a company where he could perform his review of the books. In the other 20-30% of the cases, he would be out in the office area with people often walking by and making noise. When questioned on exposure to noxious levels of noise, the worker referenced a specific job he was assigned to in Toronto in the late 1970’s. It was a 10 day audit and he was given a workspace which was located right inside the factory. The factory processed tin and there was loud pressing, banging and rattling noise throughout the day. The factory employees were equipped with ear protection, but the worker was not given any. The worker developed terrible headaches at the end of each day of auditing. He did not recall experiencing any ringing in the ears.
Aside from the job in Toronto, the worker worked in factories on other occasions over the years, but the noise was never as excessive as it was on that particular occasion. At some locations, he could hear sound through the walls, but he was never located on the factory floor again.
In order for a claim for long-term exposure to noxious noise to be accepted, a worker must be exposed to noise levels of 85 decibels for 8 hours per day, over a period of at least two years. On a balance of probabilities, we are unable to find that this criteria is met. There is no data available as to the actual noise level which was present in the factory in Toronto, and even if such information was available, it has not been established that the worker was exposed to a noxious level of noise for a period of at least two years. It is therefore the panel’s decision that the worker’s hearing loss claim is not acceptable. 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 23rd day of December, 2009