Decision #50/10 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board
(“WCB”) which determined that he was not entitled to an increase in his Permanent Partial Disability (“PPD”) award related to noise induced hearing loss. A file review was held on April 22, 2010 to consider the matter.
Issue
Whether or not the worker is entitled to an increase in his permanent partial disability award for deterioration in his hearing loss condition.Decision
That the worker is not entitled to an increase in his permanent partial disability award for deterioration in his hearing loss condition.Decision: Unanimous
Background
The worker filed a claim with the WCB for noise induced hearing loss in 1990. His claim for compensation was accepted and the worker was awarded a PPD award in recognition of his work related hearing loss difficulties. The worker’s PPD award was increased by the WCB on two occasions. In May 1994, it was increased from 7.8% to 9.8% based on the results of audiogram test results. In July 1999, the PPD award was further increased to 12.4% based on an audiogram conducted on May 25, 1999.
File records showed that the worker stopped working with the accident employer in September 1999 and his case was referred to the WCB’s vocational rehabilitation branch to assess his employability status. The vocational rehabilitation branch determined on November 8, 2000, that the worker was unemployable and would receive full wage loss benefits until he reached the age of 65 years.
On June 3, 2008, an audiologist reported that the worker was seen for hearing tests on March 11, 2008. He commented that “A minor deterioration in his right ear low frequency thresholds is evident on his recent audiogram.”
On August 26, 2008, the worker’s daughter spoke with a WCB adjudicator about increasing her father’s PPD award based on the new hearing test results. The adjudicator advised that the worker would not be entitled to an increase in his pension award given that he had not been exposed to noise as he had been out of the workforce since 1999. The adjudicator indicated that any deterioration in hearing loss after a worker retired or left employment where there was exposure to noise could be related to the aging process, outside noise, etc.
In a letter dated August 29, 2008, the worker was advised that he was not entitled to an increase in his impairment award related to his hearing loss. The worker disagreed with the decision and appealed to Review Office on February 8, 2010.
On February 12, 2010, Review Office determined that the worker’s PPD award rating should remain at 12.4%. Review Office stated, in part, that noise induced hearing loss stops worsening once a worker is no longer exposed to noxious noise. In the worker’s case, his PPD rating was increased twice as hearing tests showed an increase in hearing loss while he was still exposed to noxious noise in the workplace. A hearing test done after he ceased working in 1999 showed no increased loss from the previous test. As the worker had no workplace exposure to noxious noise after that date, any increase in his hearing loss would be due to reasons other than work. Review Office considered that any deterioration in the worker’s hearing since September 27, 1999 was not related to his employment.
On March 17, 2010, the worker asked the Appeal Commission to overturn Review Office’s recent decision based on the following reasons:
“My hearing loss has continued to worsen even after I was removed from the workforce as evidenced by the recent hearing tests submitted. I believe that my ongoing deterioration is directly related to my workplace injury. I am requesting a review of my impairment award. This is I believe, in accordance with the Workers Compensation Act which allows a review of the impairment every two years.”
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.
As the worker’s claim was made in 1990, his benefits are assessed under the Act as it existed at that time. Payment of compensation for permanent disability was provided for under subsections 4(9) and 40(1) of the Act, which read as follows:
Permanent disability
4(9) The board may award compensation under this Part in respect of the permanent disability suffered by a worker but without temporary total disability.
…
Permanent partial disability
40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.
Worker’s Position
As noted in the background, the worker had previously been granted a PPD award for his hearing loss, which was subsequently increased in 1994, and again in 1999 to reflect the further deterioration in his hearing. In this appeal, the worker provided hearing test results from January 2010 which indicate that his hearing loss has continued to worsen. He submits that this ongoing deterioration is directly related to his workplace injury and therefore asks that his PPD award be reviewed.
Analysis
The issue before the panel is whether the worker is entitled to an increase in his PPD award in recognition of his increased hearing loss. Under the Act, workers may be entitled to a PPD award for hearing loss which is induced by noise in the workplace. It is important to note that the WCB will only accept responsibility for injuries caused by work, and in the case of noise induced hearing loss, the hearing loss and ongoing deterioration must be caused by exposure to hazardous levels of noise while at work.
The worker relies on 2010 audiological tests which show increased deterioration in his hearing since the tests conducted on May 25, 1999. While the hearing loss is significant and is clearly worse than it was in 1999, we are unable to attribute the additional hearing loss to the worker’s employment. It is generally accepted in the medical literature that further deterioration in noise induced hearing loss will not happen once an individual is removed from the noxious noise levels. There is no ongoing “degeneration” from that point. The worker stopped working for the accident employer in September, 1999 and has been away from that environment since that time. He did not return to the workforce and therefore had no further exposure to hazardous workplace noise from September 1999 to present. We are therefore unable to find that the worker’s increased impairment resulted from his employment. As a result, the further hearing loss after 1999 is not compensable and does not result in an increase in the worker’s PPD award.
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 16th day of June, 2010