Decision #19/11 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker was not entitled to hearing aids for the portion of his noise induced hearing loss attributable to his employment. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on November 25, 2010 to consider the matter.Issue
Whether or not the worker is entitled to hearing aids.Decision
That the worker is entitled to hearing aids.Decision: Unanimous
Background
On June 30, 2008, the worker filed a hearing loss claim with the WCB. The worker reported that he first became aware of a hearing problem in the early 1990's and that the hearing loss came on gradually. The worker attributed his hearing loss to his exposure to loud noises in the workplace between 1984 and 1995. When he started working for the employer in 1984, his hearing was perfect.
An Employer Hearing Loss report signed on August 18, 2008 provided the following information:
- the worker did not report any hearing difficulties to the company.
- the worker did not relate any hearing loss to his employment nor did he ascribe it to any particular part of work or the work place.
- the worker began employment on May 16, 1984 and worked until July 28, 2007. Between 1984 to 1992 the worker worked as a labourer/watchman and from 1992 to 2007 he worked as an office clerk.
- protective hearing devices were issued to the worker and were worn regularly.
When speaking with a WCB adjudicator on July 20, 2008, the worker stated that he worked approximately 11 years as a labourer in a car shop, motive power shop and diesel shop. He was exposed to hammering on steel and engines "firing up." From 1996 to 2007 he worked as a customer service representative/crew dispatcher in the office and was exposed to minimal noise. He currently works with another company and is not exposed to noise.
On March 15, 2009, a WCB ear, nose and throat ("ENT") consultant commented as follows:
"Comparison between 1984 and 2008 audiograms, across all frequencies, shows 10 dB tererioration (sic) in the right ear and 11.6dB deterioration in the left ear. This deterioration is minimal and does not justify hearing aids. Worker needed hearing aids in 1984."
On April 5, 2009, the worker was advised by a WCB adjudicator that no responsibility could be accepted for his hearing loss claim as the WCB was unable to confirm that his hearing loss and the requirement for hearing aids was related to his noise exposure with the accident employer. The adjudicator referred to the opinion expressed by the WCB ENT consultant dated March 15, 2009 in reaching her decision. On August 11, 2009, the worker appealed this decision to Review Office.
On October 21, 2009, Review Office determined that the worker's claim for hearing aids was not acceptable. Review Office noted that the worker had bilateral sensorineural hearing loss in 1984, before he was exposed to noxious noise. The need for hearing aids in 1984 was therefore not due to an employment related cause. The worker's hearing then deteriorated between 1984 and 1992 due to noise exposure in the workplace but the deterioration was minimal and would not in and of itself require hearing aids. Review Office accepted that the worker had some noise exposure in his place of employment that contributed to the deterioration in his hearing, however, the employment related loss was minimal and would not have required any hearing aids.
On April 6, 2010, the worker submitted that the information from his employer was inaccurate and that he had extensive testing done by an independent hearing centre that would substantiate his claim.
On March 5, 2010, an audiologist reported that worker was seen for hearing tests on March 3, 2010. The results showed that the configuration of the worker's loss was very consistent with a noise-induced impairment. "As there is no other history of noise exposure other than in the workplace, it would seem that his impairment can be attributed to occupational noise exposure. At his request, I reviewed screening results obtained on two occasions during his employment with (accident employer). The results are inconsistent and reliability questionable. A screening test is just that and does not confirm the impairment, its degree of nature. A diagnostic assessment at that time would have been appropriate."
On March 15, 2010, Review Office asked the WCB ENT consultant to review the submission from the audiologist and to provide an opinion as to whether there was any change in his medical opinion regarding a pre-existing hearing loss requiring hearing aids based on the 1984 hearing test.
On April 8, 2010, the WCB ENT consultant stated that he did not know what the audiologist based his opinion on. The consultant noted that there were two audiograms on file dated 1984 and 1987. The two audiograms were fairly similar and consistent except for 6000 Hz in the left ear. The worker told the employer's doctor that he had a hearing problem when he joined the company in 1984. The consultant said there was no change in his opinion regarding the pre-existing hearing loss.
In e-mail correspondence addressed to the worker dated May 18, 2010, the audiologist stated:
"I questioned the validity of the screening tests done at [accident employer] because of the following: there was an apparent shift of 55dB at 6000 Hz in the left ear between the 1984 and 1987 tests. Both screening tests indicated a moderately-severe loss in the high frequencies in the right ear; you would have been 19 years old at the time of the first screen and 22 at the second; very unlikely that a loss of this severity would not have been identified earlier and the configuration is not typical of a noise induced impairment."
On June 3, 2010, the WCB's ENT consultant provided the following opinion:
"…The audiologist questioned the reliability of the 1984 and 1987 audiograms because of a shift in one frequency only in one ear (55dB at 6000Hz in the left ear.) All other frequencies in the left ear are consistent between 1984 and 1987. The right ear thresholds were consistent across all frequencies between 1984 and 1987. The audiologist labelled this loss as moderately severe. The worker was informed by [company] doctor in 1984 that he has hearing loss (as per the worker's correspondence fax date of August 11, 2009). Based on the audiogram of 1984, the worker would have benefited from the use of hearing aids. There has been an average of 10 dB deterioration in the hearing in both ears between 1984 and now. This deterioration is very minimal and does not justify the need for hearing aids."
On June 6, 2010, Review Office determined that no change would be made to its earlier decision of October 21, 2009. Review Office found that the worker needed hearing aids before he started working with the accident employer. It accepted that the worker had an increase in his hearing loss as a result of the work with the accident employer but that the increase in the worker's hearing loss did not materially impact his hearing. The decrease in the worker's hearing would not, on its own, have been sufficient to warrant hearing aids nor did the incremental increase in loss change the worker's hearing status. It concluded that the worker's hearing loss was such that he needed hearing aids both before and after the incremental work related loss. The worker disagreed with the decision made by Review Office and a hearing was arranged.
Following the hearing, the appeal panel sought additional information from the accident employer which consisted of examination notes and findings from the company physician who examined the worker for work related purposes in 1984 and 1987. The requested information was later received and forwarded to the worker for comment. On January 4, 2011, the panel met further to discuss the case and render its final decision.
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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
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.
…
6. Claimants who have had an established hearing loss prior to commencing employment in Manitoba will only be compensated for any increased impairment caused by exposure to Manitoba employment.
…
7. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board.
Worker’s Position
The worker’s evidence was that growing up, he was not exposed to loud noise. There was really no avenue in his younger life where he could have lost his hearing. He submitted that when he started working for the accident employer at age 19, his hearing was fine and he did not need hearing aids. The worker noted that he had been approved for a certain position with the accident employer and if either his vision or hearing had been impaired, he never would have been accepted for that position. The worker challenged the accuracy of the audiograms provided by the accident employer and noted discrepancies with the information. He also stated that he had no recollection of being retested in 1987 for his hearing. Once he started working for the accident employer, he was exposed to loud sudden noises and, at the time, there was no hearing conservation program and no education on hearing. Earplugs were available, but only if a worker requested them. Overall, it was submitted that his hearing loss was entirely due to exposure to loud noises at work during his early years with the employer.
Analysis
The worker has made a request to the WCB for the provision of hearing aids. While the WCB accepted that the worker suffered some work induced hearing loss, it also determined that the worker had a pre-existing hearing loss and that his employment-related loss was minimal such that it would not, in and of itself, require hearing aids. The worker's claim for hearing aids was therefore denied.
In order for the worker’s appeal to be successful, the panel must find that he has an employment related hearing loss sufficient to entitle him to hearing aids. On a balance of probabilities, we are able to make that finding.
At the hearing, the worker challenged the accuracy of the hearing test information which was provided by the employer to the WCB. He noted that the employer had only provided a computer summary page entitled "Audiogram History" which looked like it was cut and pasted.
He also questioned why there were two entries for the date 1984/04/05. Overall, the worker submitted that the information should not be considered reliable.
Of particular relevance to this case are the test results from April 1984 which suggested that the worker already had a significant degree of hearing loss when he first commenced his employment. The worker strongly denied that he had any problems with his hearing when he started his job. When asked by the panel about his letter to the WCB sent August 11, 2009 wherein he wrote: "when I received my work entry physical with [accident employer] in 1984 the doctor did say I had a 'very slight hearing loss'" the worker was at a loss to explain this statement. He had no clear independent memories of discussions regarding his hearing loss in 1984.
Following the hearing, the panel requested from the employer the worker's full medical file for the period 1984-1987. The information subsequently provided by the employer confirmed the audiogram results of April 1984 and October 1987. The information also disclosed, however, that a further audiogram was conducted on October 25, 1984. These audiogram results were not previously on the WCB file and had not been considered by the WCB ENT specialist. The October 1984 audiogram produced the following results:
Ear |
250 |
500 |
1000 |
2000 |
3000 |
4000 |
6000 |
8000 |
Right |
5 |
5 |
0 |
5 |
25 |
35 |
35 |
35 |
Left |
10 |
5 |
0 |
0 |
10 |
25 |
15 |
5 |
Also of interest in the information provided by the employer was a letter dated October 16, 1987 addressed from the employer's medical officer to the worker. It states: "Your recent audiometric examination reveals a hearing loss of which you are probably aware…."
The hearing test results from October 1984 are significantly better than the results from April 1984, and there is a notation on the test page which indicates "normal". Generally speaking, where there are inconsistent hearing test results, the test results which indicate superior hearing are preferred, as they are more likely to be accurate. The panel therefore finds that the October 1984 audiogram is to be considered the best evidence of the condition of the worker's hearing when he commenced his employment.
Based on the October 1984 audiogram, the panel finds that the worker did not have as significant a hearing loss when he started work as was initially believed and opined upon by the WCB ENT specialist. The panel finds that the worker's hearing was essentially normal when he first started work and that the first indication of abnormal hearing was in 1987 when he was sent a letter by the employer's medical officer.
Given that the WCB has already accepted that the worker had sufficient exposure to occupational noise so as to give rise to an acceptable claim, the panel finds that his hearing loss and need for hearing aids is primarily attributable to his work exposure. When he started working, his hearing was essentially normal. We therefore find that the worker is entitled to hearing aids under the Policy. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 14th day of February, 2011