Decision #33/10 - 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 dated January 20, 2009 which confirmed primary adjudication’s decision that he was not entitled to a hearing aid for his left ear. A file review was held on February 1, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to a hearing aid for his left ear.

Decision

That the worker is not entitled to a hearing aid for his left ear.

Decision: Unanimous

Background

On February 18, 2008, the worker submitted an audiogram to the WCB dated January 18, 2008 and stated:

“…I would also like to have my claim reassessed by the board for consideration of a hearing aid for my left ear. There has been some changes noted in the report especially my speech recognition. I would also like to make amendments to my information status in relation to the use of fire arms. I hunt still but with the use of a bow…”.

In a further letter to the WCB dated October 11, 2008, the worker stated:

“…I am still noticing more and more my problem of understanding people when they are talking to me and often have to have them repeat things several times. I attended one of our construction site meetings this past week and with the background noises of workers working I had great difficulty understanding what everyone was saying and it is getting to be embarrassing as I don’t know what is being said and I should as I am the site Superintendent and I need to know these points spoken and I can’t very well tell everyone at these meetings to repeat every thing they say…”.

In a decision dated October 15, 2008, the worker was advised that a WCB ear, nose and throat (“ENT”) consultant compared the 2008 hearing tests to the 2003 tests on file and found minimal deterioration of hearing in the worker’s right ear and no deterioration in hearing of his left ear. The adjudicator noted that the worker was a right handed gun user for more than 20 years and this explained why the hearing in his left ear was worse. The adjudicator felt that the need for a left hearing aid was related to the use of a firearm and therefore the WCB was unable to accept responsibility for it. On December 17, 2008, the worker appealed the decision to Review Office.

On January 20, 2009, Review Office noted that the January 18, 2008 audiogram showed a 15 decibel loss in the right ear and a 37.5 decibel loss in the left ear. Given that noise induced hearing loss was typically symmetrical, the 15 decibels in the right ear would be used for both ears. Review Office was unable to find the evidence to support that based on this hearing loss, the worker would require a left sided hearing aid.

Further, Review Office noted that the worker had been exposed to noise from various tools at the workplace and that this type of noise exposure would affect both ears and would not be responsible for the significant difference in hearing loss when comparing the right side to the left side. Regarding noise exposure caused by firearms, Review Office was of the opinion that a single blast from a gun could cause permanent hearing damage. Review Office concluded that there was no evidence to support that the requirement of a left sided hearing aid was related to the worker’s exposure to noxious noise in the workplace.

The worker provided the WCB with an updated audiogram dated February 5, 2009 which recommended the need for hearing aids.

On April 22, 2009, the WCB advised the worker that no change would be made to the previous decision. The adjudicator indicated that information obtained from the worker’s employer showed that the worker was a supervisor and there had been no noise exposure at work since his hearing was last assessed in 2008. The employer also indicated that a hearing conservation program was in place. Based on all the information, the WCB was unable to confirm that the worker had been exposed to noxious levels of noise at work which would result in any deterioration in his hearing.

On July 29, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Following the file review, the appeal panel requested an opinion from the WCB’s ENT consultant. A report from the specialist was later received and was provided to the interested parties for comment. On March 2, 2010, the panel met further to discuss the case and considered a submission from the worker dated February 23, 2010.

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.

When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of the Act. Medical aid payments for appliances such as hearing aids are payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident.

Worker’s Position

In his letter to the Appeal Commission requesting an appeal, the worker noted that he has bilateral high frequency sensorineural hearing loss that can be caused by prolonged exposure to loud noise. He has greater loss in the left ear which would indicate that somewhere he may have been exposed to a greater amount of noise on his left side. He attributed this increased exposure to his work practices and the use of certain tools, on a cumulative basis. He submitted detailed information regarding the noise levels of some common tools he used on a regular basis on the work site. He also described how these tools would be used and why it would have affected the left side to a greater degree than the right. With respect to firearm use, the worker was honest and forthcoming in admitting to this use, but noted that his hearing loss has been gradual, as opposed to a sudden loss which would be expected from a single blast. He also argued that certain work tools also create single loud blasts which would produce the same results. When comparing the amount of time he was exposed to noise from tools, as compared to noise from a firearm, the work related noise exposure was far greater.

In a supplementary submission dated January 17, 2010, the worker provided further information regarding noise levels of tools, and a report from an audiologist which opined that the damage to his ears was not caused by one particular noise, but rather was likely the cumulative effect of various tools and/or weapons over the course of time. The worker also noted that the WCB only consulted its specialist on one occasion, in March 2004, and no updated opinion was ever obtained.

Analysis

In order for the worker’s appeal to be successful, the panel must find that the hearing aid for the worker’s left ear is necessary to provide relief for an injury which resulted from an accident. In other words, we must find that the hearing loss in his left ear which has necessitated a hearing aid is related to his work duties. On a balance of probabilities, we are not able to make that finding.

The worker has an accepted claim for loss of hearing. This means that the WCB has recognized that he was exposed to noxious levels of noise while working in the Province of Manitoba and as a result, his hearing has been affected. The WCB has established guidelines which set out a minimum level at which a hearing loss will be considered rateable. The standard is an average deficit of 35 decibels or over in each ear. While the hearing loss in the worker’s right ear remains well below the standard deficit, the hearing loss in the worker’s left ear is 37.5 and therefore is over the minimum level. The question, then, is why the worker’s left ear is worse than the right ear and whether that difference is related to his work duties. The key point at issue is whether or not the worker’s recreational pastime of hunting is responsible for the left sided hearing loss.

After our initial review of this file, the panel asked for further information regarding asymmetrical hearing loss from the WCB’s otolaryngology (ENT) medical consultant. In response to the panel’s queries, the medical consultant provided the following information:

  • Right-handed shooters have a more severe hearing loss in the left ear because the left ear faces the barrel while the right ear is tucked into the shoulder and is in the acoustic shadow of the head.
  • 1-3 shots per deer hunting season for over 20 years is not a limited exposure. The dB level from firearm use is 150-170 dB. This exposure can lead to asymmetric hearing loss with the left ear being worse in right-handed firearm users.
  • A single blast from a gun could have caused the hearing damage observed in the worker’s left ear. The audiogram of 1993 shows normal hearing in the right ear and noise-induced hearing loss in the left ear.
  • Hearing loss secondary to firearm use is sensori-neural in nature. The configuration of the audiogram is that of noise-induced hearing loss 85 dB or higher.
  • Asymmetrical hearing loss can be caused by diverse etiologies:
    • Firearm use (the most common)
    • Ear infection
    • Ear trauma (physical or acoustic)
    • Tumors e.g. acoustic neuroma
    • Autoimmune disease of the inner ear
  • The detailed work history the worker provided did not explain the asymmetry. The worker’s occupational noise exposure was never directed to one ear in particular and he would expect it to affect both ears symmetrically.

Although the worker’s submission describes in detail the types of noise-generating tools he used to perform his work duties in the field of construction, the panel finds that the workplace noise exposures described by the worker are not enough to explain the uniquely asymmetrical nature of his hearing loss. General ambient noise would presumably affect both ears relatively equally and there were no exposures described which would necessarily impact the left ear more severely than the right. Since 1998, the worker has been in a supervisory position and therefore his direct handling of tools has decreased since that time. While as supervisor he would still be exposed to noise, he would generally be more removed in distance from the noise generating tools. We also note information on file which indicates that since 1991, a workplace hearing protection program was in place with the worker’s employer and that the worker complied with this program. When compared to the fact that the worker engaged in hunting activities for over twenty years without the use of any ear protection, the panel finds it more probable that his exposures to gunshot blasts while hunting are the cause of the rateable hearing loss in the left ear.

For the foregoing reasons, the panel finds that the rateable loss of hearing in the worker’s left ear did not result from his workplace exposures and he is not entitled to a hearing aid for his left ear. The worker’s appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 22nd day of April, 2010

Back