Decision #61/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which confirmed that her claim for hearing loss was not acceptable as it did not meet the criteria set out in WCB Policy #44.20.50.20 Hearing Loss. A file review was held at the Appeal Commission on March 30, 2011 to consider the matter.Issue
Whether or not the worker's claim for hearing loss is acceptable.Decision
That the worker's claim for hearing loss is not acceptable.Decision: Unanimous
Background
On March 23, 2010, the worker filed a claim with the WCB for noise induced hearing loss which she related to her employment as a payroll clerk/secretary between 1970 and 1991. The worker indicated that she was exposed to noise once a day when she walked through the plant to collect time cards. The worker indicated that she first became aware of a hearing problem in 2009 and that her hearing loss came on gradually.
The Employer Hearing Loss Report indicated that the worker walked through the plant once a day and was exposed to loud noise for about 10 to 20 minutes per day. She did not wear hearing protection.
The WCB file contains audiogram reports from the employer dated March 21, 1977 to August 29, 1983. The worker's hearing was also tested on June 10, 2010 by an audiologist at which time the worker was reported to have mild sloping to severe high frequency sensorineural hearing loss bilaterally.
On June 24, 2010, the employer's plant superintendent advised the WCB that the worker went into the plant every day for timecards; however, the location of the cards was not really in the actual plant itself but in the lunchroom. He noted that the worker may have walked through the plant occasionally but it would have been very minimal. The employer also advised the WCB that it had decibel readings of the different areas of the plant but not where the worker would have had to go with the time cards.
On July 20, 2010, the worker advised the adjudicator that she may have been exposed to noise 15 minutes per day when she walked through the plant floor with the time cards. The worker referred to a person who worked alongside her in the office that had a hearing loss claim which the WCB had approved.
On July 30, 2010, the adjudicator reviewed the claim filed by the worker's co-worker. This worker worked in accounting from 1957 to 1971 and was in the foundry one hour per day. However, from 1972 to 1989 the worker was a plant manager and was responsible for overseeing the plant on a daily basis. He was exposed to electric furnace, overhead cranes, high pressure grinding, warning sirens, forced air heating, etc.
In a decision dated July 30, 2010, the worker was advised that her claim for hearing loss was not acceptable as the WCB was unable to establish that she was exposed to sufficient levels of noise based on the criteria used by the WCB ("exposure to noxious noise for a minimum period of two years, based upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels"). On August 18, 2010, the worker appealed the July 30, 2010 decision to Review Office.
Prior to considering the worker's appeal, Review Office contacted the employer and was provided with a layout of the offices and building where the worker had to go to get the time cards from the lunchroom. The noise level surveys done by the employer dated April 13, 1972 showed the background noise in the plant ranged from 83 to 92 decibels.
In a decision dated October 26, 2010, Review Office confirmed that the worker's claim was not acceptable as it was unable to establish that the worker was exposed to sufficient levels of noxious noise in her workplace as set out in the WCB's hearing loss policy. On December 12, 2010, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
Long term hearing loss claims are adjudicated under the “occupational disease” provisions of the Act. Subsection 1(1)(c) defines an “accident” as including an occupational disease. This subsection later defines occupational disease as: “a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;”
WCB Policy 44.20.50.20, Hearing Loss (the “Policy”) sets out guidelines applicable to claims for hearing loss arising from long-term exposure to occupational noise. 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.
3. 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.
Worker’s Position
The worker suffers from a loss of hearing which is documented by audiogram testing. She feels that the WCB should accept responsibility for her claim for hearing loss. Her Appeal of Claims Decision form states the following as her reason for appeal: "A person working in the same office as I did qualified for a hearing aid and I feel I should have received the same consideration from both Workers Compensation and (the accident employer)."
Analysis
The worker in this case claims that her bilateral hearing loss documented in an audiogram conducted on June 10, 2010 relates to her employment during the years 1970 to 1991. In order for the worker’s appeal to be successful, the panel must find that during the course of her employment with the accident employer, the worker was exposed to levels of noxious noise as set out in the Policy. On a balance of probabilities, we are not able to make that finding.
According to the Policy, in order to find that a hearing loss occurred at work, the worker must be exposed to average noise levels of 85 decibels for 8 hours per day, over a period of at least two years. For every increase in noise level of 3 decibels, the required exposure time will be reduced by half. In the present case, this criteria is not met.
The worker's exposure to noise at work was limited to her daily job task to walk through the plant to collect time cards. It was estimated that this task would at most take 10 to 20 minutes per day. There is a noise level survey which was conducted at the accident employer's plant on April 13, 1972 which documents that the noise in the background areas throughout the plan averaged 83 - 92 decibels. If the maximum noise level of 92 decibels is used, in order to meet the Policy criteria, the worker would have had to be exposed to the 92 decibel noise level for between 1 to 2 hours per day. The exposure of 10 to 20 minutes is not sufficient to establish that the hearing loss occurred at work.
In her submission, the worker pointed out that a co-worker from the same office had an accepted claim for work related hearing loss. It is important to note that all WCB claims are adjudicated on their own individual merits. It would appear that the co-worker did not hold the same job position as the worker and the job duties and length of exposure to noxious noise at work differed significantly. The two cases are in no way comparable.
It is therefore the panel’s decision that the worker’s hearing loss claim is not acceptable. The appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Lafond, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of May, 2011