Decision #40/13 - Type: Workers Compensation

Preamble

This case was previously the subject of a file review at the Appeal Commission to determine whether the worker was entitled to the replacement of his lost hearing aid. Under Appeal Commission Decision No. 15/13 dated January 30, 2013, it was determined by the appeal panel that the worker was not entitled to the replacement of his lost hearing aid. The panel stated, in part:

"…we have no evidence to show that the loss of the worker's right hearing aid created a safety hazard or in any way prevented him from functioning well in his employment. The facts before us are that when the worker lost his right hearing aid, the worker still had a functioning and effective hearing aid in his left ear. The panel finds that the use of one hearing aid would allow the worker to properly hear instructions and workplace terms. The panel notes that it found no other safety issues related to the loss of one hearing aid."

The worker is currently appealing the decision made by Review Office of the Workers Compensation Board ("WCB") dated December 7, 2012 which determined that he was not entitled to replacement of his hearing aids. A hearing was held on February 20, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to replacement of his hearing aids at this time.

Decision

That the worker is not entitled to replacement of his hearing aids at this time.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for noise induced hearing loss in both ears.

On November 8, 2011, the worker spoke with a WCB case manager about replacing his hearing aids. The worker indicated that there was a hearing aid on the market that was better suited for him and he wanted the WCB to cover the costs of the hearing aid. The case manager advised the worker that if there had been a significant decline in his hearing which his current hearing aids could not compensate for, then the WCB would consider a request for new hearing aids. The worker was advised to have his hearing tested and to submit the audiogram to the WCB for consideration.

On March 9, 2012, the worker's treating audiologist advised the WCB that the worker was seen for a full audiological evaluation. The worker reported that his current hearing ability was limiting him socially but in his mind, he felt restricted at work in terms of safety and job effectiveness. Often, the worker was unable to understand the speech he does hear and had difficulty hearing safety alarms. The audiologist reported:

Pure tone testing results:

A bilateral symmetrical moderate to severe high frequency sensorineural hearing loss is measured. There is a slight decrease in thresholds when compared to previous audiometric testing.

Word recognition ability:

Speech discrimination testing revealed good word recognition ability bilaterally.

SRT/PTA Agreement:

Results of pure tone audiometry are in good agreement with speech audiometry. This is indicative of good test reliability. In addition to this, client responses were consistent and reliable.

Immitance Results:

Immitance audiometry reveals type A tympanograms bilaterally indicative of normal middle pressure and compliance bilaterally.

There is a high degree of likelihood that the inclusion of binaural speech processing by way of the Oticon Agil Pro (Rise 2) chip will dramatically increase [the worker's] speech comprehension and overall hearing abilities. I am recommending these hearing aids in order to improve communication and socialization ability, and to minimize the effect of auditory deprivation. In addition, [the worker] is still in the workforce and would benefit greatly from improved auditory resolution, both from a safety perspective and from a perspective of job effectiveness.

A WCB ear, nose and throat ("ENT") consultant stated on March 27, 2012:

Comparison between 2006 and 2012 audiograms show 9 dB deterioration in the right ear (when using air conduction thresholds) and 3.0 dB improvement (when using bone conduction thresholds). The left ear shows 6.7 dB deterioration. The deterioration in the right ear is primarily conductive in nature (15-20 dB conductive component). This conductive component is not related to noise exposure and was not present in the audiogram of 2006. The audiologist did not do impedence audiometry. Impedence audiometry can help explain problems with the middle ear system that can result in conductive hearing loss…Hearing Centre indicated that there is a slight decrease in thresholds when compared to previous audiometric testing. Based on the above the deterioration in the hearing in both ears is minimal and does not justify replacement of the hearing aids. The request from…Hearing Centre for replacement of the hearing aids is clearly on the basis of newer technology and not on the basis of further deterioration.

In a decision dated April 12, 2012, the worker was advised that his file had been reviewed by the WCB's ENT consultant who compared his 2006 audiogram to the 2012 audiogram. Comparisons between the two audiograms showed minimal deterioration in his right and left ear and the change was not significant. Therefore he did not qualify for early replacement of his hearing aids.

On October 31, 2012, the Worker Advisor Office requested Review Office to reconsider the April 12, 2012 adjudicative decision. Attached with the submission was a letter from the worker outlining his position on the matter.

On December 7, 2012, Review Office determined that the worker was not entitled to replacement of his hearing aids at this time. In making its decision Review Office referred to the findings of the audiologist in his report of March 9, 2012 and the opinion expressed by the WCB's ENT consultant dated March 27, 2012. Review Office found:

  • there was little deterioration in the worker's hearing for sound and that he was able to recognize words.
  • the degree of deterioration related to noise exposure was minimal.
  • the audiologist's request for replacement of hearing aids was not on the basis of further deterioration in the worker's hearing.
  • there was no evidence that one or both hearing aids were faulty.
  • newer technology was not justification for replacement aids.
  • the Medical Aid policy did not provide a worker with replacement aid(s) for safety reasons (i.e. to distinguish safety alarms).
  • there was no evidence that the worker's current aids were placing the worker at an increased safety risk.

On January 7, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on February 20, 2013.

Reasons

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 seeking the replacement of his hearing aids. The Act provides that the WCB may make any purchases that it considers necessary to cure and provide relief from an injury.

In accordance with the Act, the WCB Board of Directors established WCB Policy No. 44.120.10, Medical Aid. This policy deals with the provision of medical aid services to workers.

Worker's Position

The worker attended the hearing with his wife. He explained his reasons for appealing and answered questions by the panel.

The worker advised that he has been working in construction for more than 40 years. He is a skilled tradesman and works at industrial sites, often in remote areas. He advised that his hearing loss is the result of working in noisy workplaces. He also suffered hearing loss in his right ear due to a specific accident.

The worker referred to the March 23, 2007 letter he received from the WCB. The letter advised that the WCB ENT specialist found that the worker would benefit from the use of 2 hearing aids. The letter also advised that the WCB would "…provide coverage of all hearing aids ordered from the WCB Approved Product List…" Page 3 attached to the letter advised that "Replacement of hearing aids will only be considered if there has been further deterioration in your hearing or your current hearing aids are not providing adequate help."

The worker told the panel that his hearing aids are not providing adequate help. He advised that he has difficulty hearing. He said this creates a safety problem in that he cannot hear certain alarms in the workplace and cannot participate in workplace discussions. In answer to a question, the worker said that he is a certified plumber and pipe fitter. He travels. He also said that his hearing affects his quality of life including his ability to watch television, speak with his wife and grandchildren and socialize with others.

The worker advised that WCB provided him with hearing aids in July 2007, as authorized in the March 23, 2007 letter. He said that in July 2008 he lost his right hearing aid while working. He asked the WCB to cover the cost of a replacement hearing aid, but the WCB refused to pay for a replacement hearing aid. He appealed this decision to the Appeal Commission but it dismissed his appeal.

The worker said that in 2009 he obtained a pair of new hearing aids under his home insurance to replace the lost hearing aid. The new hearing aids were inferior to the hearing aids provided by the WCB. He said that his audiologist told him he must replace both hearing aids because they work in "sync" with one another. The original left hearing aid, provided in 2007, is in his possession.

The worker said that the decision should not be made on the difference between hearing tests but rather on the impact that it has on his life. He said his audiologist advised that there is a new hearing aid that will improve his hearing. He feels the WCB should provide the better hearing aids as his loss of hearing is due to his workplace exposure. The worker also advised that he was told that the WCB paid for a pair of replacement hearing aids every five years.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker is entitled to replacement of his hearing aids. For the worker's appeal to be successful, the panel must find that there has been a significant deterioration in the worker's hearing due to noise in the workplace or that the hearing aids are not providing adequate assistance. The panel is not able to make this finding.

The panel finds that there has not been a significant deterioration in the worker's hearing since he was tested in 2006. In reaching this conclusion the panel relies upon the opinion of the WCB ENT consultant dated March 27, 2012. The consultant compared the 2006 audiogram with the 2012 audiogram and concluded that the deterioration in hearing in both ears is minimal and does not justify replacement of the hearing aids. He also commented that the recommendation for replacement of the hearing aids is clearly on the basis of newer technology and not on the basis of further deterioration.

The panel also considered the worker's audiologist's report of March 9, 2012. The audiologist noted that:

· "There is a slight decrease in thresholds when compared to previous audiometric testing."

· "Speech discrimination testing revealed good word recognition ability bilaterally."

The audiologist's findings appear to conflict with the worker's complaints of an inability to hear when people speak to him.

In dealing with the question of whether the hearing aids are providing adequate help, the panel has considered whether the hearing aids work as intended. If the hearing aids are defective or provide no relief, the WCB may replace the hearing aids. The issue of adequacy is not intended to be a comparison between the results provided by the original hearing aids and the results offered by new hearing aids featuring the newest technology. In this case, the evidence does not establish that the worker's original hearing aids did not work as intended. The worker advised that the hearing aids provided by the WCB in 2007 provided superior hearing assistance compared to those he purchased in 2009 after he lost one of the WCB provided hearing aids. The unfortunate loss of the right hearing aid and the replacement with inferior products is not the responsibility of the WCB.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of March, 2013

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