The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors.

This appeal deals with a hearing loss claim. There are two issues raised by the worker. The first issue is whether the date of accident has been correctly established. Subsection 1(12) of the Act provides that where an impairment is caused by an occupational disease, the day on which the impairment began is deemed to be the day of the accident.

The second issue is whether the permanent partial impairment has been correctly calculated. Subsection 4(9) provides that the board may award compensation in respect of an impairment that does not result in a loss of earning. Subsection 38(1) provides that the board shall determine the degree of a worker’s permanent impairment expressed as a percentage of total impairment. Subsection 38(2), provides a formula to determine the monetary value of an impairment award. Subsection 38(3) provides for a reduction of the impairment award in certain cases.

The Board of Directors has enacted policy 44.90.10.01, the Permanent Impairment Rating Schedule. In accordance with this schedule, impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the policy. Pages 21 to 25 of the schedule set out the method for measuring a hearing loss impairment.

Worker's Position

The worker provided a written submission dated December 14, 2010. In his submission the worker disagrees with the determination that the date of the accident is May 16, 2002.

He notes that it is apparently based on an audiogram completed by his physician on that date. He submitted that:

"I never attended Dr. [name] office on that date because I suspected that I had noise induced hearing loss or any other hearing problems. I attended Dr. [name] office because of serious otitis media in the left ear. It was never revealed to me that I had noise induced hearing loss at that time and hearing aids were not even recommended to me. I submit that the audiogram was completed related to that condition and not for the purpose of determining noise induced hearing loss. My understanding is that hearing loss, of this nature, is progressive and gradual and to conclude that the date of the accident is May 16, 2002 seems to me to be unfair. I never pursued compensation for my hearing impairment until July, 2008, when it became obvious to me that my hearing loss had become problematic. If I experienced the same problems in 2002, as I eventually did in 2008, and if the diagnosis was consistent with noise induced hearing loss, I would have submitted a claim at that time."

Employer's Position

The employer provided a written submission dated May 16, 2011. The submission detailed the Act and relevant policies that was felt to apply to the claim. They note the evidence is clear that the worker's hearing loss was tested and recorded in 2002. Further, the applicable sections of the Act in effect at the time support the permanent impairment award had been properly established.

Analysis

The first issue deals with the date of the hearing loss. The worker feels the loss should be attributed to July 2008 when he applied to the WCB and not May 16, 2002 as determined by the WCB.

For the appeal to be successful, the panel must find that the date of accident assigned to the claim is incorrect. The panel was not able to reach this conclusion. The panel finds on a balance of probabilities that the hearing loss began on May 16, 2002, the date of the audiogram which first showed that the worker had a noise induced hearing loss.

The worker argued that he did not attend the physician in relation to a hearing loss in 2002 and was not aware he had a hearing loss. Nonetheless an audiogram was conducted which found a noise induced hearing loss. The panel notes the audiogram was conducted at a recognized audio testing facility on May 16, 2002 and established evidence of noise induced hearing loss. The panel is required to apply Subsection 1(12) and finds that the loss of hearing began on the date of the audiogram.

The worker's appeal of the first issue is denied.

The second issue is whether the worker's permanent partial impairment has been correctly calculated. For the appeal to be successful on this issue, the panel must find that an error was made in calculating the permanent impairment. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the impairment was correctly calculated.

The date of accident for the hearing loss is May 16, 2002. Subsection 38(4) of the Act provides that in determining the amount of an impairment award, the amount in subsection 38(2) in effect the day of the accident is to be used. This amount has been adjusted annually and in May 2002 the sum was $600.00 for an impairment 1% or more, and less than 5%. For an impairment of 5% or more and less than 10% the amount was $1,200.00.

Under subsection 38(3) the amount of the impairment is reduced by 2% for each year of age the worker is over 45 years at the time the board determines that the worker has an impairment. On May 16, 2002 the worker was 55 years old.

In this case the it was determined that the worker had a 6% impairment. The amount of the award was $1,200.00 less the reduction for age resulting in an impairment award of $960.00. The panel finds the calculation made by the case manager to be correct and in accordance with the Act and policies in place on May 16, 2002.