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 of the Board of Directors.

The worker is claiming hearing loss arising from his employment in Manitoba in between 1970 and 1980. During that time, the WCB considered hearing loss to be an "industrial disease." It was adjudicated under subsection 2(10) of the Act as it existed at that time.

The WCB Commissioners prior to 1990 and Board of Directors since then have enacted policies which apply to noise induced hearing loss claims. The policies all require significant exposure to noise at work with employers who are or had been registered in Manitoba.

Worker's Position

The worker attended with his spouse who served as his representative and made a presentation on his behalf.

The worker's representative said that:

"[The worker] feels that the noise induced hearing loss, decisions made by the WCB and the Review Office have been prematurely assessed and based on assumptions. WCB and the Review Office decisions focus on the dates between 1980 to present. The dates in which [the worker] is claiming his hearing loss is between ’72 and ’80, so please be -- please give fair consideration to the facts, opinions, assumptions presented in chronological order that may have affected the previous decision made by WCB and the Review Office regarding [the worker's] WCB claim for compensation for noise induced hearing loss to be declared not compensable."

The worker's representative advised that the worker is not claiming that his hearing loss is due to his current employment. She referred to his employment history that was provided by the Canada Pension Plan ("CPP").

The worker's representative also expressed concern that the WCB ENT consultant did not provide a signed medical opinion on the file.

The representative advised that the worker had "no hearing or medical issues as a toddler or youth growing up that would cause him to have any known hearing difficulties. [The worker] did not require the use of hearing aids during his early childhood or teenage years."

She noted that two teachers who taught the worker when he was young provided letters indicating that the worker did not require hearing aids when they taught him.

The representative provided a summary of the worker's work experience including a list of the equipment that he operated. She attributed his hearing loss to his employment and said:

"It was noise and vibration from the rock crusher, noise and vibration from the operation of the loaders that he operated and the extreme vibration occurred from drilling and blasting two to three times per week, [the worker] stated he could feel the vibration on his body; and not only [the worker] but other employers would have been in the area when - the time of drilling and blasting occurred. [The worker] worked fourteen hours per day, seven days a week for a month at times and sometimes longer with four days off, flying home only at Christmas."

The worker answered questions from the panel. He confirmed that he grew up on a family farm and operated farm equipment.

He said that his first employment between 1969 and 1972 involved training to operate heavy equipment with a company in Saskatchewan that did land clearing and road building. In 1971, he worked for another company in Saskatchewan where he trained to be a truck driver. He learned about driving and dumping gravel.

The worker said that in 1972 he began work for a Saskatchewan company in Manitoba. His duties involved "…working around the plant, shoveling, cleaning up and at the same time I get a chance to get on the equipment. Like, you know, cleaning up…then slowly, eventually I got to be a loader operator."

He said that he became a loader operator about 10 months after he had started with the company. While working in the quarry area he said that he was often close to the blast sites. He said "We … had to be at least, at least a quarter mile maybe, yeah, away. There’s rock flying all over the place…"

The worker said that he first noticed hearing loss in 1973. He said that he noticed that he could not hear the phone ring. He said that when he went to school he could hear the phone ring but after 1973 couldn’t hear the phone ring.

Regarding the change in his hearing from 1973 to 1980 the worker advised that "I don’t think I was missing much different…in 1980 as I was in 1973 because the damage was already done." The worker's representative advised that when she first met the worker in 1977 he had hearing problems.

After 1973, the worker said that he worked at a variety of positions that involved heavy construction and truck driving.

Employer's Position

The current employer was represented at the hearing and confirmed the worker was not attributing his hearing loss to the current employer.

Analysis

The worker claims that his bilateral hearing loss documented in an audiogram conducted in August 1980 relates to his employment during the years 1970 to 1980. In order for the worker’s appeal to be successful, the panel must find that during the course of his employment in Manitoba, the worker was exposed to levels of noxious noise sufficient to cause a noise induced hearing loss. On a balance of probabilities, the panel is not able to make that finding.

In reaching this decision the panel makes the following findings of fact based upon the evidence in the worker's claim file and the information provided at the hearing:

· The worker first noticed a significant hearing loss in 1973.

· The worker's hearing loss did not worsen significantly after 1973.

· The worker's employment in Manitoba commenced in 1972. His first employment in Manitoba was as a labourer for a road building company. He worked at a quarry and on the road construction. After about 10 months as a labourer, he began to operate a loader and occasionally operated a cat and drove a truck. He worked for the company from 1972 to 1975 and again in 1978.

· The worker usually used ear plugs and ear muffs for protection from hearing loss, although he removed the ear muffs during summers because they were too hot. He said he wore the ear muffs about 70% of the time.

· The worker was not involved in drilling or blasting. When blasting occurred, the worker was "at least a quarter mile away."

Given the above facts, the panel finds, on a balance of probabilities, that the worker's hearing loss is not related to or a result of his employment in Manitoba. By 1973 when his hearing loss was noted as significant, the worker had worked for only one employer in Manitoba and for a period of approximately one year. Considering the duties performed and equipment operated by the worker at this position, the panel finds that there was not sufficient exposure to noise to cause or worsen his hearing loss condition.

At the hearing the worker's representative attributed his hearing loss to his employment in Manitoba between 1972 and 1980. The panel finds that the hearing loss occurred before his employment in Manitoba. Regarding other employers in Manitoba, the worker said that his loss occurred by 1973 and did not vary much after that date. In the panel's view, this excludes all other work in Manitoba.

The panel accepts the opinion of the WCB ENT specialist that:

The 1980 audiogram (at age 30 yrs.) shows profound sensorineural hearing loss in the lower frequency range and no hearing above 2000 HZ. The 2006 audiogram (at age 56 yrs.) showed the same results.

This indicates that noise exposure did not have any impact on the worker's hearing since 1980.