Decision #38/10 - Type: Workers Compensation
Preamble
The worker is currently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that he was not entitled to additional benefits. Review Office’s decision was made on the basis that without the results of a specialized hearing test that was only available in Saskatoon that the worker refused to undergo, it had no evidence to establish whether the worker’s hearing loss had deteriorated. The worker disagreed with the decision and a file review was held on March 25, 2010 to consider the matter.Issue
Whether or not the worker is entitled to additional benefits at this time.Decision
That the worker is not entitled to additional benefits at this time.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for noise induced hearing loss. The worker has been provided with a Permanent Partial Disability (“PPD”) award in relation to his hearing loss (in August 2000, the PPD amount was increased from 8.4% to 10.8%) and with the costs associated with hearing aids.
In 2007, the worker advised the WCB that his hearing loss had further deteriorated and he was requesting additional benefits.
On October 20, 2007, a WCB ear, nose and throat consultant reviewed the file at the request of primary adjudication. The consultant commented that the audiogram of 2007 was similar to the audiogram done in 2003. The 2005 audiogram was slightly better. He stated: “Speech reception thresholds are not in agreement with the pure tone thresholds in the audiogram of Aug. 24, 2007. This raises concern regarding reliability. Probably re-testing in Saskatoon with Cortical Evoked Responses will help determine the correct thresholds.”
On February 28, 2008, a letter was sent to the worker indicating that the WCB was making arrangements for him to undergo hearing tests (audiometry and Evoked Cortical Response tests) in Saskatoon and that he could expect to hear from the hospital with the date and time of his appointment.
On March 6, 2008, the WCB received email correspondence from the worker’s girlfriend concerning the WCB’s request to undergo further hearing tests. She indicated that the worker was very ill with toxic poisoning and back issues and that he did not have the financial means to attend the appointment.
On June 10, 2006, a WCB adjudicator advised the worker that the WCB would pay for his travel expenses to attend his appointment in Saskatoon. The adjudicator advised the worker that no further decisions could be made on his claim until he was capable of completing the requested testing. The worker was asked to contact the adjudicator when travel was possible so that she could arrange testing at the earliest possible time.
On June 10, 2006, the worker advised the WCB that he had no interest in traveling to Saskatoon for specialized hearing tests and suggested that there were facilities available in Winnipeg that were capable of performing ABR (auditory brainstem response) testing.
On June 12, 2008, the worker was advised that the WCB would take no further action on his hearing loss claim given that he was not interested in undergoing further hearing tests. On July 2, 2008, the worker appealed the decision to Review Office. The worker stated:
“…I don’t have Downs Syndrome which I was informed is only performed in regard to your request for this type of testing. So, I was also informed by the Health Sciences Centre that the differences between the two is the ABR testing at the Health Sciences Centre is far more concise than what your suggestion has been, as Saskatoon Hospital confirmed the same.
…I cannot foresee that any time forward this long winded transportation ordeal is necessary whatsoever or that I am able to travel as Dr. [treating physician] confirmed to you.”
In a memorandum to file dated July 31, 2008, a WCB Review Officer documented the following information after speaking with the WCB ear, nose and throat consultant:
· that Evoked Cortical Response testing was not available in Winnipeg. The closest place was in Saskatoon.
· ABR testing was available in Winnipeg, however, it only provided results at three of the four frequencies needed for the WCB’s purposes. The advanced testing was required because the worker’s responses on conventional testing were inconsistent.
In a decision dated July 31, 2008, Review Office outlined the position that without the required Evoked Cortical Response test, there was no evidence upon which it could consider the worker’s current state of hearing loss and therefore the worker was not entitled to additional benefits. This decision was again confirmed by Review Office on October 31, 2008.
On June 25, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a file review was held on March 25, 2010.
Reasons
The issue before the panel in this appeal is: “Whether or not the worker is entitled to additional benefits at this time.” The worker has an accepted claim for work related hearing loss and has received benefits from the WCB in respect of his hearing loss. Over the years, the worker’s hearing has deteriorated and he has asked the WCB to consider whether he is entitled to additional benefits in respect of his worsened hearing. The WCB does not feel it has reliable medical evidence regarding the status of the worker’s hearing loss and has requested the worker to travel to Saskatoon for specialized testing. The worker states that due to back pain, he is unable to travel to Saskatoon for the testing. The worker relies on a letter from his family physician dated May 13, 2008 which provides as follows:
Another issue is regarding the travel to Saskatoon for hearing assessment – I don’t think the patient is able to do that because of the ongoing back pain, and his pain gets worse with prolonged standing and sitting. The patient told me this morning that the trip would take about 8 hours and he can’t tolerate that.
Without the results from the specialized testing, the WCB states that no further decisions can be made on the worker’s claim, as there is no evidence to allow the WCB to consider providing the worker with additional benefits.
After reviewing the circumstances of the case, the panel agrees that as things currently stand, there can be no entitlement to additional benefits at this time. The WCB does not have reliable medical evidence which can be used to conclude that the worker’s hearing has indeed deteriorated. Given the inconsistent results from conventional testing, the panel is of the view that it is reasonable for the WCB to require that the specialized testing be performed.
It is within the purview of the WCB to require workers to submit to medical testing. Section 21 of The Workers Compensation Act (the “Act”), as it was in 1989 which is the effective date of the hearing loss claim, provides as follows:
Worker must submit to medical examination
21(1) Every worker who applies for, or is in receipt of, compensation under this Part, if required by the board, shall submit himself to medical examination in accordance with the regulations at a place to be fixed by the board, and reasonably convenient for the worker.
Failure to be examined.
21(2) Where a worker fails to submit himself to the examination, or obstructs his examination, his right to compensation is suspended until the examination has taken place; and no compensation is payable during the period of the suspension unless the board otherwise orders.
The WCB medical advisor has indicated that specialized testing is required because the worker’s responses on conventional testing were inconsistent. The panel is of the view that the medical advisor’s recommendation for the specialized testing is reasonable to provide a full and objective measurement of the worker’s true hearing loss. The test results could then be used to determine what, if any, further entitlement the worker has to benefits for compensable hearing loss.
The panel agrees with the Review Office comments that until the specialized testing is done, there can be no change in entitlement to benefits. There is simply no evidence which would allow a reconsideration of providing the worker with additional benefits at this time. When such evidence becomes available, the worker’s entitlement can be revisited. Until then, no change can be supported.
The panel notes the worker’s concerns about his ability to travel to Saskatoon but is of the view that it is possible to make travel arrangements which would accommodate the difficulties the worker has with his back. This could include dividing the travel into smaller legs, or traveling by air to Saskatoon.
It is therefore the panel’s decision that since there is no reliable measurement of the worker’s current hearing loss, there is no evidence to support a finding that the worker is entitled to additional benefits at this time. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 3rd day of May, 2010