Decision #42/12 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board ("WCB") for noise induced hearing loss. He is appealing the decision made by Review Office that he was not entitled to the costs associated with hearing aids. A file review was held on October 4, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to hearing aids.

Decision

That the worker is entitled to a right ear hearing aid.

Background

On February 24, 2010, the worker filed a claim with the WCB for noise induced hearing loss that he related to his employment as a butcher/meat cutter. The worker reported that he first became aware of a hearing problem in 2003 and that his hearing loss came on gradually. The worker advised the WCB that he was exposed to loud noise eight hours per day in his work environment which was caused from the butchering equipment. The worker noted that his hearing was good when he started working for the employer in 1990.

Primary adjudication confirmed with the accident employer that the worker began employment with the company in 1990. The employer indicated that the noise levels ranged between 80 and 87 decibels and that the worker was provided with hearing protection.

On August 28, 2010, primary adjudication determined that there was insufficient evidence to support that the worker's hearing loss was the result of work related noise exposure. In making its decision, primary adjudication referred to the following evidence:

  • hearing tests done by the accident employer which showed that there was significant deterioration in the worker's hearing in his left ear between 1990 and 1998 with minimal change in his right ear;
  • a September 11, 1998 report from an ear, nose and throat ("ENT") specialist stating that the worker had sudden onset of left sided hearing loss in May or June 1998 which was associated with tinnitus. The sudden idiopathic hearing loss was likely related to either a viral or vascular episode; and
  • a January 22, 2010 report from a second ENT specialist stating that the worker's left ear had a significant hearing loss that was probably related to some type of inner ear infection.

On December 14, 2010, a worker advisor submitted additional evidence to support that the worker's hearing loss resulted from his exposure to noise in the workplace.

On January 20, 2011, primary adjudication reversed its earlier decision and accepted the worker's claim for noise induced hearing loss but determined that he did not qualify for a permanent impairment award or hearing aids. Primary adjudication noted that the worker wore hearing protection since 1994 according to audiometric records and based on this evidence, he would not have been exposed to noise levels of 85 decibels or greater after 1994. Primary adjudication also noted that a WCB ENT consultant reviewed the audiogram dated September 29, 1998 and it was his opinion that the worker's hearing loss was not rateable. The worker did not require a right hearing aid and the need for a left aid (if required) was not work-related.

On March 9, 2011, the worker advisor asked Review Office to reconsider the decision made by primary adjudication. The worker advisor contended that the decision was contrary to WCB policy and was based on a false presumption that the worker had no exposure to excess noise after 1994. On April 11, 2011, the employer's representative submitted a rebuttal to Review Office.

On April 26, 2011, Review Office determined that there was no entitlement to hearing aids. Review Office noted that the worker's exposure to noise after 1994 would have been less than 85 decibels as the worker stated that he wore hearing protection.

Review Office acknowledged the worker advisor's submission that the hearing aid should be the responsibility of the WCB given that the worker's ENT specialist said in a report dated April 6, 2010 that the worker would benefit from a hearing aid and that this was in part due to his noise induced hearing loss. Review Office noted that the April report did not indicate whether the ENT specialist was aware of the extent of the worker's recent noise exposure or whether hearing protection was worn. As such, it was the practice of the WCB to obtain a medical opinion from the WCB ENT consultant to determine if the need for hearing aids was due to a compensable hearing loss. Review Office indicated that it accepted the February 15, 2011 opinion of the WCB ENT consultant which stated that the worker's need for a hearing aid for his left ear was due to the sudden onset of hearing loss the worker experienced in 1998. Therefore, there was no entitlement to hearing aids. On May 17, 2011, the worker advisor appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Following discussion of the worker's appeal, the appeal panel decided to write to the treating ENT consultant for additional information regarding his recommendations for the worker to have hearing aids. A response from the consultant was received dated January 16, 2012 and was forwarded to the interested parties for comment. On February 14, 2012, the panel met further to discuss the case and rendered its decision.

Reasons

Chairperson Choy and Commissioner Walker:

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.

WCB Policy 44.20.50.20.01, Hearing Loss (the “Policy”) outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The effective date for the Policy is for claims arising from accidents on or before March 31, 2000. The Policy further states that it applies to all claims for which the date of accident is on or after May 29, 1985, where the initial decision regarding hearing loss is made on or after October 1, 1995. The relevant time period for this claim falls between these dates and as such, the Policy applies to the present case.

The Policy states in part that:

1. 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.

2. For a claim to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half).

…

4. Claimants who have had an established hearing loss prior to commencing employment in Manitoba will only be given consideration for any increased impairment caused by exposure to Manitoba employment.

…

5. Where 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 represented by a worker advisor in the appeal. The worker's position was that he is entitled to a hearing aid as a result of his compensable noise-induced hearing loss. It was submitted that despite personal protective equipment, the worker continued to have exposure to noise and as a result, his hearing loss became worse. The combined effect of his compensable bilateral noise-induced hearing loss, which continued to progress after 1994 due to ongoing occupational exposure to noise, and the idiopathic left-sided hearing loss that developed in 1998, resulted in the worker now requiring a hearing aid.

The worker relied on the terms of the Policy and submitted that his situation met the criteria of the Policy: he had confirmed noise-induced hearing loss, which had been accepted by the WCB as compensable, and his specialist had recommended use of a hearing aid. Although the WCB ENT consultant took the position that the worker did not require a hearing aid based on the loss recorded in 1998, the Policy made no distinction with respect to a threshold of loss required for the WCB to be responsible for a hearing aid, or how to apportion compensable and non-compensable impairments. While the need for a hearing aid was not solely due to compensable loss, it was submitted that the combined effect of the non-compensable left-sided hearing loss and the bilateral noise-induced hearing loss resulted in the worker's need for a hearing aid.

Employer’s Position

An advocate made a written submission on behalf of the employer. The employer's position was that for the worker's appeal to be successful, the evidence must support that the need for hearing aids was due to a compensable hearing loss. The medical reports failed to confirm this. It was submitted that the hearing loss in the left ear was idiopathic and not related to any workplace exposure. The availability of hearing protection since 1994 and the hearing assessment of 1998 confirmed that the minimal loss in the right ear was not significant enough to warrant a hearing aid. The employer concurred with the assessment and professional opinion of the WCB ENT specialist.

Overall, it was submitted that there was no evidence provided to support the entitlement of hearing aids through the WCB and as such the appeal ought to be dismissed.

Analysis

This appeal concerns whether or not the WCB is responsible for the provision of hearing aids to the worker for employment related hearing loss. Determination of the appeal requires the panel to interpret the worker's entitlement pursuant to the terms of the Policy. Although the majority and minority differ in our interpretations of the Policy, we agree that the following evidence is relevant to this case:

  • The worker worked in a noxious noise environment since 1985. From 1990 to 1994, he worked for the accident employer and the noise levels in the area where he worked were between 80 and 87 decibels. Based on this exposure to noxious noise, the WCB accepted the worker's claim for noise induced hearing loss.
  • Since 1994, the worker wore hearing protection and was no longer exposed to noxious levels of noise while at work.
  • The best available evidence is that the pre-1994 workplace noise exposures caused the worker to suffer a 3.75 db hearing loss in his right ear. This comes from a September 29, 1998 audiogram, which was later interpreted by a WCB ENT consultant on February 15, 2011.
  • With respect to the left ear, file information indicates that the worker suffered a sudden and profound hearing loss in May or June 1998, which was considered by ENT specialists to be related to non-compensable causes not associated with work, namely a viral or vascular episode or an inner ear infection. In his February 15, 2011 assessment, the WCB ENT consultant attributed only 3.75 db of the worker's 55 db left sided hearing loss to the work related noise exposure.
  • In 2010, the worker approached the WCB about getting hearing aids, because of his worsening hearing loss. This is the basis of this appeal.
  • In support of his request for hearing aids, the worker relied on reports dated February 1, 2010 and April 6, 2010 from his treating ENT specialist who recommended a hearing aid for the worker.
  • The panel requested clarification from the treating ENT specialist regarding the recommendation for a hearing aid. By letter dated January 16, 2012, the treating ENT specialist advised that: "I do not recommend bilateral hearing aids and I recommend only a hearing aid for the right ear. The hearing loss is quite significant in the left ear and I don't think the patient will appreciate much end improvement in the left ear with amplification." As the specialist's recommendation was limited to a hearing aid for the right ear, pursuant to the terms of the Policy, the worker's potential entitlement to a hearing aid can be considered for the right ear only.
  • The treating ENT specialist also confirmed in his January 16, 2012 correspondence that the worker has: "a high tone loss in his right ear that averages throughout the high frequencies in the neighborhood of 45 db. He also has a mild to moderate loss in his low frequencies."
  • The treating ENT specialist's threshold for recommending hearing aids is: "generally a hearing loss in excess of 30 db on at least two frequencies."

From the foregoing, the panel makes the following findings of fact:

  1. The worker's right sided work related hearing loss is an average of 3.75 db.
  2. Currently, the worker's total right sided hearing loss at high frequencies is an average of 45 db.
  3. The worker's specialist recommends a hearing aid for the right ear and would have recommended the hearing aid at the level of 30 db average.
  4. The worker's increase in hearing loss since the 1998 audiogram of approximately 41.25 db is not work-related.

The question for the panel is whether or not there is entitlement to a hearing aid for the right ear under the terms of the Policy. The fact situation is difficult because even though the WCB has acknowledged that the worker has an acceptable claim for hearing loss, the extent of the work related hearing loss is minimal and well below the general threshold for recommendation of a hearing aid. Indeed, the worker's post-1994 non-work related hearing loss alone would cause his specialist to recommend a hearing aid, even in the absence of any work-related hearing loss.

The relevant portion of the Policy is paragraph 5 and bears repeating:

5 Where 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.

Paragraph 5 contains mandatory language ("shall") and outlines two prerequisites for entitlement: an accepted claim for hearing loss and a specialist's recommendation. While the usual expectation would be that the specialist's recommendation must relate to the hearing loss for which the claim was accepted (i.e. the work related hearing loss must necessitate the need for a hearing aid), the wording of the Policy does not explicitly state this. In the majority's opinion, the Policy wording can equally be interpreted to create entitlement to a hearing aid, regardless of the extent of the work related hearing loss, so long as there is at least some degree of hearing loss caused by exposure at work, which forms the basis of an accepted claim.

When faced with two equally justifiable interpretations, the majority is of the view that the version which favours coverage ought to be applied. This is in keeping with a remedial approach to interpretation which is fair, large and liberal. If the WCB Board of Directors had intended to limit entitlement to work-related hearing loss only, the phrase "in respect of the compensable hearing loss" could have been inserted after the words "hearing aid(s)" in paragraph 5. In the absence of this type of clear direction, the majority finds that the Policy entitles the worker to a hearing aid, as there is an accepted claim and his specialist has recommended use of a hearing aid for the worker's right ear.

The worker's appeal is therefore allowed.

Panel Members

L. Choy, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of March, 2012

Commissioner's Dissent

Commissioner Finkel's dissent:

This case deals with the worker's entitlement to hearing aids, on an accepted WCB claim that has already acknowledged that he has a work-related noise-induced hearing loss ("NIHL"). As noted in the majority reasons, the panel agrees fully on the facts of the case and on the specific policy to apply, but the majority and I have different views on how the policy is to be interpreted. Based on my differing interpretation of the policy, it leads me to find that the WCB is not responsible for providing hearing aids to the worker, and I would deny the worker's appeal. My reasons follow.

As noted in the reasons of the majority, the panel agrees on the evidence and findings of fact that are relevant to this appeal. This evidence has been recited in the majority decision and form part of my dissenting reasons as well.

Analysis

Dealing firstly with the worker's request for a left ear hearing aid, I agree with the majority that the worker's treating ENT specialist has not recommended a hearing aid for the worker's left-sided hearing loss. Therefore, I find that there is no medical evidence to support the worker's entitlement to a left ear hearing aid, and I concur in the decision to deny the worker's appeal for a left ear hearing aid.

Dealing next with the worker's request for a right ear hearing aid, WCB policy 44.20.50.20.01, Hearing Loss provides:

5. 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

There are two possible interpretations of this policy.

1. That once a claim has been accepted for a NIHL, then, regardless of the actual level of the compensable hearing loss at the outset, a worker will always be entitled to hearing aids down the road once the total hearing loss exceeds the appropriate medical prescription threshold as recommended by a specialist. Under this interpretation, there is no consideration given to the source of the added hearing loss or to the significance (small or large) of the original work-related NIHL.

2. That once a claim has been accepted for a NIHL, a worker will be entitled to hearing aids where the compensable hearing loss exceeds the appropriate medical prescription threshold as recommended by a specialist.

The facts of this case are that the worker had a 3.75 db hearing loss that was work-related. It was sufficient to trigger an accepted WCB claim. Much like a no time loss claim, the acceptance of any claim, including a NIHL claim, does not necessarily trigger immediate (or any) benefits or entitlements. However, the establishment of that claim can be important down the road, either for benefits within the claim or, for example, to establish a discrete hearing loss at a particular work place which might later be added to other claims from other workplaces/exposures in the future.

The challenge in this case is that the worker has now approached the WCB for hearing aids at a time when his current level of hearing loss is 45 db, meaning that 41.25 db of his hearing loss is not work-related (recalling that the original accepted claim established a 3.75 db hearing loss as being work-related). Even if I was to compare the suggested threshold of 30 db for prescribing hearing aids against the worker's original work-related hearing loss of 3.75 db, this calculation establishes that the original work-related NIHL has been augmented by 26.25 db of non-work-related hearing loss to get him to the hearing aid threshold. Under either circumstance, the compensable hearing loss is wildly overshadowed by the worker's non-compensable hearing loss, all of which took place well after the worker's removal from toxic noise exposure in 1994.

In applying the WCB policy on hearing loss to this case (or in general), I prefer to interpret it in a manner consistent with how the Act is generally applied. As a starting principle, the Act compensates workers for compensable injuries, and generally provides medical aid only for compensable injuries. This is embodied in Section 27(1) of the Act which provides that "the board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident." [emphasis mine]

WCB Policy 44.120.10, Medical Aid, provides the broad framework, guidance, and direction for what will and won't be covered. Section 2 (a) is particularly instructive on this point, and has helped guide my interpretation of the hearing loss policy. It provides as follows:

a. Medically Prescribed Treatments and Prosthetic Devices

i) The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prostheses when required by reason of a compensable injury, and the treatment or device is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury. [emphasis mine]

In my view, the Hearing Aid policy should be interpreted in a manner consistent with the above-noted general medical aid policy on the provision of prosthetic devices.

Looking now at the Hearing Loss policy, the section dealing with hearing aids states: "When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), the worker shall be entitled…"

This is the point of departure in policy interpretation. In my view, given the general framework of the Act and the general Medical Aid Policy, the Hearing Loss Policy would best reasonably be interpreted as follows: "When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid (when required by reason of a compensable injury…), the worker shall be entitled…"

This interpretation simply "reads in" wording used in the general Medical Aid policy for prosthetic devices. To do so otherwise, introduces an inconsistency between the general policy provision on medical prosthetics and a specific hearing aid prosthetic that simply does not make sense.

Further support for this particular interpretation comes from my observations of how WCB generally interprets the Act. For example, under the guidance of the Act, WCB generally does not pay for non-compensable or "pre-existing" conditions, and is especially careful in adjudicating medical aid entitlements where non-compensable and compensable conditions are present in the same part of the body. I see no compelling reason to introduce a different standard of adjudication for hearing loss/hearing aids, or to interpret this particular policy on hearing loss in a manner that varies from this standard approach.

For these reasons, I prefer the second interpretive approach that I noted above, namely: "That once a claim has been accepted for a noise-induced hearing loss, a worker will be entitled to hearing aids where the compensable hearing loss exceeds the appropriate medical prescription threshold as recommended by a specialist "

In my view, this interpretation is consistent with how medical aid benefits are generally assessed. I also note that this interpretation is consistent with the manner in which this claim had been adjudicated at the adjudicative and Review Office levels, which suggests that the current practice of the WCB is to interpret this policy in the same manner as I have done.

With this policy interpretation in mind, I find that the facts of this case clearly identify that the worker's compensable work-related hearing loss comprises only a tiny portion of the worker's overall hearing loss and even of the threshold standard for hearing aids. The threshold (30 db loss) and the actual hearing loss on the right side (45 db) are far above the accepted work-related 3.75 db hearing loss. I find that the worker's medical need for a prescribed right hearing aid is overwhelmingly based on his non-compensable hearing loss that occurred between 1998 and now, and that the worker's compensable NIHL of 3.75 db was not a material factor in the worker's current need for a right ear hearing aid.

I would therefore deny the worker's appeal.

A. Finkel
Appeal Commissioner

Signed at Winnipeg, this 26th day of March, 2012.

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