The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations, and policies approved by the WCB 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.

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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.

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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 was self-represented at the hearing, with his wife and daughter also in attendance to provide assistance. The worker's position was that two significant events in 2010 contributed to a worsening of his hearing loss and tinnitus condition. The first was the fall he had taken on July 14, 2010, when he hit his head on the ground after falling off the ladder. He indicated that his work helmet had fallen off as a consequence of that fall, and that he had headaches immediately thereafter. His tinnitus condition significantly worsened as a result of that fall. The second event was his return to work on the pole truck for 2.5 weeks starting in late August. He described that vehicle as the noisiest vehicle in the fleet. He indicated that his audiologist has been recommending hearing aids which will relieve his hearing loss and also the symptoms of his tinnitus condition, both of which were worsened in 2010.

In response to questions from the panel, the worker elaborated on the circumstances of the fall, the specifics of his job duties while on the pole truck, and on the types of hearing protection he was wearing at that time.

Employer's Position:

An advocate for the employer provided a written submission prior to the hearing, but did not attend the hearing. Their position supported the decisions made by Review Office. The worker had not been exposed to excessive noise on the job since 1995, and he wore appropriate hearing protection. The advocate noted that on October 17, 2010 a WCB medical advisor indicated that it was too early to consider tinnitus, and that the audiogram done shortly after the July 14, 2010 work injury showed only a slight hearing loss, that was impossible to determine was due to the compensable incident or other noise exposure.

Analysis:

The worker has made a request to the WCB for the provision of hearing aids specifically in respect of a worsening of his hearing loss and tinnitus conditions that he asserts are related to his workplace accident in July 2010 when he fell off a ladder. This claim has been accepted by the WCB in respect of other physical injuries sustained at that time.

In order for the worker’s appeal to be successful, the panel must find that he has a job-related worsening of his hearing loss in 2010 sufficient to entitle him to hearing aids. On a balance of probabilities, we are not able to make this finding. Our reasons follow.

At the outset of the hearing, the panel discussed the scope of the worker's appeal with the worker, and confirmed that the worker was only appealing with respect to the consequences of his 2010 workplace accident on his hearing or tinnitus condition. As noted in the background, the worker did have a prior 1992 noise-induced hearing loss claim that was accepted by the WCB. That claim did include a later request by the worker for hearing aids due to an ongoing deterioration of his hearing. His request was denied at both the initial adjudication level and eventually in a 2004 Review Office decision. As part of its analysis, the Review Office decision did note that the worker had been suffering an ongoing deterioration of his hearing subsequent to the 1992 injury but concluded that it was not work-related and therefore not a WCB responsibility. The worker has not appealed that decision, and the panel did discuss with the worker that it was only in a position to deal with what happened in 2010. The worker indicated that it was his intention to deal only with the 2010 events at the hearing.

In concluding that the worker is not entitled to hearing aids in respect of his 2010 work exposures, the panel has carefully assessed all the evidence on the file and from the hearing, and has made the following findings in respect of the two proposed medical diagnoses relied on by the worker, those being a noise-induced hearing loss and a worsening of his tinnitus condition.

a. Possible work-related causes:

· In our review of the July 14, 2010 fall at work, the panel has assessed the mechanism of injury to determine its severity in terms of establishing a potential traumatic hearing loss. The panel notes that the fall from the ladder did not involve a direct fall onto the worker's head. The worker's evidence is that he fell backward, landing on boxes, and eventually his chest, knee, and head. The worker was also wearing a helmet that eventually dislodged, suggesting that it had absorbed some portion of the impact. The panel has also reviewed the medical evidence right at the time of the accident. There is no indication of an external injury to the head, or of a loss of consciousness, or any concerns related to possible concussion, any of which might have suggested a traumatic head injury sufficient to cause a significant hearing loss.

· As for the pole truck job duties that the worker performed for 2.5 weeks in late August 2011, the panel similarly finds that the evidence does not support that the worker suffered an additional hearing loss or a worsening of his tinnitus at that time. The panel explored the job duties undertaken in the pole truck with the worker. He advised that the greatest noise exposure occurred when he used a chain saw to cut down poles and when the auger was used to drill new holes in the ground. The tamper that was used for the gravel around the newly installed poles did not create a noise problem for him. The panel notes that this noise exposure was occasional during the course of the day, as only a limited number of poles were replaced each day. As well, the worker only did these duties over a limited period of time, which in the panel's view would not likely have been the source of an additional hearing loss.

· This conclusion is reinforced by the worker's evidence regarding his use of hearing protection on the job. The panel finds that the worker had been substantially protected from any significant noise exposure, because of the extreme care the worker had been taking to protect himself from noise exposure at work. The worker's evidence was that he used ear plugs and hearing protection muffs that were "the best you can buy" while working on the pole truck. His evidence was that the ear plugs removed 32 hertz of noise while the muffs removed 28 hertz of noise. In the panel's view, the worker was not exposed, on a balance of probabilities, to damaging levels of noise exposure while working on the pole truck, sufficient to cause or worsen his hearing loss or cause an exacerbation of his tinnitus condition.

· As for the worker's job duties following the pole truck job duties, the worker advised that he was off work completely until November 2010. When he returned, it was to sedentary duties involving the use of a computer in a quiet indoor work environment. He continued in those job duties until his retirement in July 2011. The panel finds that this period of employment would not be causative of any hearing or tinnitus problems.

b. Review of medical evidence

· The panel reviewed the medical information and medical opinions on file to determine whether the worker has suffered a work-related deterioration of hearing loss that would justify the provision of hearing aids.

· The worker had two recent audiograms performed in 2008 and 2010, one before and one shortly after the July 14, 2010 fall. The WCB ear, nose, and throat specialist reviewed these audiograms. In his memo of October 17, 2010, he described a "minimal change" between the two audiograms, but stated that he could not specifically tie that change to the 2010 workplace accident. He also cautioned that the 2010 audiogram was done too close in time to the accident date (within two weeks) to be a reliable indicator of long term damage, stating that "a repeat audiometric assessment would be needed in one year to see if there is any other change." The panel notes that the worker did submit a later audiogram report dated November 15, 2011. This hearing test was done over a year after both the July 2010 fall from the ladder and the worker's job duties on the pole truck, and is, in the panel's view, a reliable indicator of whether the worker did or did not have a long term worsening of his hearing loss. The panel notes that the November 2011 audiogram demonstrated an actual improvement in the worker's hearing from the 2010 audiogram. Accordingly, in the panel's view, the medical information does not support that there was an additional work-related hearing loss in 2010 that would entitle the worker to hearing aids.

· The worker has also submitted that he needs the hearing aids because of a permanent worsening of his tinnitus condition as a result of the July 14, 2010 fall. The panel notes firstly that the worker did have a tinnitus condition prior to the July 14, 2010 workplace accident. The WCB has not accepted this prior condition as being a work injury. As such, the worker's prior tinnitus is considered to be a pre-existing condition, in the context of the worker's 2010 claim.

· As to the possibility of a long term worsening of the worker's pre-existing tinnitus condition, the WCB ear, nose, and throat specialist commented on October 17, 2010 that it was too early to look into tinnitus, as "we visit tinnitus 2 years after the compensable injury." Subsequent to that October 2010 observation, the worker's evidence at the hearing was that his tinnitus condition had returned to its pre-July 14, 2010 baseline by November 2010. The panel notes that the worker's evidence on this point is consistent with a November 17, 2010 medical report by his attending physician . His examination notes indicate that: "He still has some ringing in the ears, but back to baseline."