Decision #61/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not entitled to a permanent partial disability award related to his hearing loss claim. A hearing was held on March 15, 2012 to consider the matter.Issue
Whether or not the worker is entitled to a permanent partial disability award.Decision
That the worker is not entitled to a permanent partial disability award.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for noise induced hearing loss.
The worker commenced working for the employer in 1965. The worker's first position with the employer was in a high noise area and he worked there for approximately 15 years until 1980 when he transferred to a different shop. At the new location, the worker was not exposed to high levels of noise. The worker continued to work for the employer until he retired at the end of 1994. His last day in the workplace was September 30, 1994.
In 1984, the worker first started to become aware that he had a hearing problem. On April 18, 1985 his doctor wrote a note which indicated: "This patient is showing evidence of industrial noise deafness and should avoid further noise exposure." Subsequently, the worker filed a claim with the WCB for work related hearing loss. On July 11, 1990, his claim for noise induced hearing loss was accepted. At that time, the average hearing loss in his right ear was calculated at 30 decibels and the average loss of hearing in his left ear was calculated at 30 decibels. This was determined to be below the standard minimum level at which the WCB would consider hearing losses to be rateable, and therefore the worker was not entitled to a disability award at that time.
In August, 2011, the worker contacted the WCB to inquire whether he was entitled to a financial award for his hearing loss. The WCB then undertook a review of the worker's claim.
On September 12, 2011, the worker was advised by the WCB that he was not entitled to a permanent partial disability ("PPD") award based on the following rationale:
The Workers Compensation Board has established a minimum level at which hearing loss is considered rateable. The standard is a deficit of 35 decibels or over in each ear. This is arrived at by taking the average hearing loss as recorded at the 500, 1000, and 3000 hertz frequencies.
An audiogram from September 2, 1994, was reviewed by a WCB Ear Nose and Throat Specialist (ENT) for re-rating purposes. Due to the fact that this audiogram was closer to your retirement in 1995, it can be considered a better representation of you (sic) total hearing loss at the [employer]. After review the WCB ENT determined that in 1994 your average hearing loss in the right ear was 28.75 db, and the average in the left ear was 30.0 db. As such, your condition is not considered rateable and you do not qualify for a permanent partial impairment award.
On September 16, 2011, the worker appealed the above decision to Review Office. The worker submitted that he had industrial deafness due to excessive noise in the workplace. The worker provided a medical certificate from an otolaryngologist dated April 1985 to support his position.
A submission was made by the employer to Review Office dated October 24, 2011. The employer outlined their position that the worker should not be entitled to a PPD award.
On October 31, 2011, Review Office determined that the worker was not entitled to a PPD award. Review Office agreed that it was correct to use the September 2, 1994 audiogram to assess the worker's hearing as it was conducted shortly before the worker retired from the accident employer.
Review Office held that based on WCB policy that was in effect at the time the worker's noise induced hearing loss was established in 1989, a worker would be entitled to a hearing loss impairment award if he had a 35 db loss or greater in each ear. Based on the 1994 audiogram results, the worker's hearing deficit had been averaged at 28.75 decibels in the right ear and 30 decibels in the left ear; therefore, he did not meet the minimum requirements of the WCB policy and was not entitled to a PPD award.
On December 7, 2011, the worker appealed the decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
As the worker’s claim for hearing loss was first made in 1989, his benefits are assessed under The Workers Compensation Act (the “Act”) as it existed at that time. Payment of compensation for permanent disability was provided for under subsections 4(9) and 40(1) of the Act, which read as follows:
Permanent disability
4(9) The board may award compensation under this Part in respect of the permanent disability suffered by a worker but without temporary total disability.
…
Permanent partial disability
40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.
For hearing loss claims arising on or before March 31, 2000, WCB policy 44.90.10.02 (the “Policy”) provides guidelines for calculating impairment awards. Attached to the Policy is a Permanent Impairment Rating Schedule. The Policy provides that impairment ratings are to be established strictly in accordance with the schedule whenever possible and reasonable. The “Impairment of Hearing” section of the Permanent Impairment Rating Schedule provides that:
When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz.
In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear and the hearing loss in decibels is converted into percentage of impairment…. (emphasis added)
Worker’s Position
The worker was self represented at the hearing. The Appeal of Claims Decision form submitted by the worker outlines the reasons why he believes the Review Office decision should be overturned. It states:
- The times I am appealing are from 1965 thru early 80's, not after.
- The damage I had with my hearing was caused by excessive noise at (the employer) during the time period of 1965 thru early 1980's.
At the hearing, the worker also raised concerns about the WCB Policy in place at the time of his hearing loss. The worker noted that the policy relied upon by the WCB required a noise level of 35 decibels, but the worker questioned whether that policy was in effect at the time he was exposed to the highest level of workplace noise, which was from 1965 through to the early 1980's.
Employer's Position
An employer advocate and the employer's risk management officer appeared at the hearing on behalf of the employer. It was submitted that the worker did not meet the minimum requirements of the applicable policy to qualify for a permanent partial disability award. It was established in 1990 that the worker did have hearing loss due to work-related exposure, but it did not meet the minimum level of an average of 35 decibels in each ear, which was required to be ratable. In a July 11, 1990 decision, the worker's claim was accepted but he was advised that he was not entitled to a disability award at that time. Should his hearing loss deteriorate while he continued to work in a noisy environment, the worker had been advised to contact the WCB and they would review his claim at that time. The worker retired in 1995 and did not continue to work in a noisy environment. It was submitted that the September 2, 1994 audiogram which was taken shortly before his retirement was the best measure of his hearing loss and these results were below the threshold required for an impairment rating. While the employer sympathized with the worker that he did have some hearing loss, his hearing loss did not meet the minimum requirement in effect at the time in order to qualify for a permanent partial disability award. The panel was therefore asked to affirm the decisions made on the WCB file.
Analysis
The issue before the panel is whether the worker is entitled to a permanent partial disability (“PPD”) award in recognition of his noise induced hearing loss. Under the Act, workers may be entitled to a PPD award for hearing loss which results from workplace exposure to noise. In order for the worker's appeal to succeed, the panel must find that the worker meets the minimum level of hearing loss required under WCB policy to qualify for a PPD award.
The panel had before it audiograms taken on September 2, 1994. The worker's evidence was that his last day in the workplace was September 30, 1994 and during the month of September, he was not exposed to any high levels of noise while at work. The panel therefore considers the September 2, 1994 audiogram to be the best evidence of the extent of the worker's occupationally induced hearing loss. The worker submitted that most of his hearing loss was incurred during the early years between 1965 and the early 1980s, and this may well be the case, but the panel feels that the 1994 audiogram encompasses all the worker's years of employment with the employer and therefore is the best measure of his work related hearing loss. This type of hearing loss is permanent and his hearing tests would not have improved between the early 1980s and September 1994.
The 1994 audiogram shows an average hearing loss of 28.75 decibels on the right and 30.0 decibels on the left. These numbers fall below the minimum requirement of an average of 35 decibels or greater in each ear, and therefore the worker does not qualify for a PPD award under the Policy.
The panel gave consideration to the worker's argument that the Policy may have been different at the time when his hearing loss was first identified by his doctor in 1985. In that regard, the panel was able to ascertain that the Permanent Impairment Rating Schedule which sets out the 35 decibel level was initially adopted by the WCB in March 1946. Through the years, the WCB adopted a number of policies, directives and practices, which were complied with the Permanent Impairment Rating Schedule into one document and approved by Board Order 152/86. Board Order 152/86 incorporates the Permanent Impairment Rating Schedule "in effect as of April 18, 1985." In that version, the minimum average level remains at 35 decibels.
The result is that the worker would not have qualified for a PPD award regardless of whether we use the policy in place in 1985 or 1994. His level of occupationally induced hearing loss never averaged over 35 decibels in each ear.
We therefore find that the worker is not entitled to a permanent partial disability award. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 10th day of May, 2012