The Appeal CommissionThe Workers Compensation Act of Manitoba

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 1992, his benefits are assessed under the Act as it existed at that time. Payment of compensation for permanent disability (referred to in the 1992 Act as permanent impairment) was provided for under subsections 4(9) and 38(1) of the Act, which read as follows:

Compensation for impairment

4(9) The board may award compensation in respect of an impairment that does not result in a loss of earning capacity.

…

Determination of Impairment

38(1) The board shall determine the degree of a worker's impairment expressed as a percentage of total impairment.

For hearing loss claims arising on or before March 31, 2000, WCB policy 44.90.10.02 (the “Policy”) provides guidelines for calculating impairment awards. Attached to the Policy is a Permanent Impairment Rating Schedule (the "Schedule"). The Policy provides that impairment ratings are to be established strictly in accordance with the Schedule whenever possible and reasonable. The “Impairment of Hearing” section of the Schedule provides that:

When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz.

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…. (emphasis added)

Analysis

The issue before the panel is whether the worker is entitled to a permanent partial disability/impairment (“PPI”) award in recognition of his hearing deficit. Under the Act, workers may be entitled to a PPI award for hearing loss which results from workplace exposure to noise.

In the present case, the worker first filed his claim for hearing loss in 1992. According to the December 20, 1991 audiological test results, the worker’s average hearing loss at that time was 20 decibels in his right ear, and 30 decibels in his left ear. The Schedule provides that in order to merit a PPI award, the average of the four speech frequency levels must be 35 decibels in each ear. As the average hearing loss in both the worker's ears did not exceed 35 decibels, he did not qualify for a PPI award. This was the determination of the Appeal Commission in its decision dated October 27, 1992.

In this reconsideration, the worker relies on new audiograms conducted on November 26, 1992, December 21, 1995, April 24, 1998, December 11, 1998, July 22, 1999, November 16, 2000, April 5, 2001, April 30, 2007 and February 5, 2009, which were not previously before the Appeal Commission panel when it made its decision in October 1992.

The information on file indicates that the worker retired from his employment with the accident employer on September 13, 2001. After that date, the worker was removed from exposure to workplace noise, and therefore any deterioration in hearing loss after September, 2001 cannot be considered to be work-related. Accordingly, the panel's consideration of the audiograms will be limited to tests which were conducted prior to the worker's retirement.