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's claim for noise induced hearing loss has been accepted by the WCB. The worker is appealing the WCB's decision to refuse to pay for a hearing aid for his left ear.

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.

3. 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……

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.

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 attended the hearing and explained his reasons for appealing the WCB decision. He answered questions asked by the panel.

The worker noted that his claim was for a hearing aid for his left ear. He advised that he believes the hearing loss in his left ear is due to his exposure to occupational noise. He advised that at one time he was tested for noise by his employer and that test found he had a left ear hearing loss only. Unfortunately, records of this test cannot be found.

The worker advised that he has not been exposed to noise away from work. He has no hobbies or other pursuits which involve exposure to noise.

The worker advised that over a 6 year period he was subjected to noise. During this time he worked in a baggage handling position. He described the three main duties of this position as:

• Indoor baggage sorting and moving.
• Delivery of baggage to aircraft.
• Loading and unloading baggage and tarmac duties.

The worker also described the activities associated with the duties:

• When the worker worked inside his exposure was not significant. He indicated that he usually did not wear hearing protection while working indoors and that he could speak and hear co-workers normally. While there was a large door open to the outside, he could put his hearing protection on if the outdoor noise increased.
• Baggage delivery included driving a small tractor with a trailer, hauling baggage on the trailer from outside to inside the building and vice versa, assisting with unloading and loading the baggage if required and some tarmac duties. The duties were variable, and sometimes continuous for up to a couple hours. The worker used hearing protection while outside.
• Loading/unloading duties involved removing baggage from the aircraft and loading on to a trailer for transport to the building and then removing baggage from a trailer and loading it into the aircraft. Depending on the size of the aircraft, the job involved one or two teams of two workers. There were many times when only one team was available. One worker would move materials in the cargo hold and hand to another who would load the trailer and vice versa. The job also included tarmac duties. The worker used hearing protection while performing these duties.

The worker said that he preferred working at the loading/unloading duties so would work in this area for approximately 24 hours in a 40 hour work week. The amount of time spent loading and unloading varied depending on the number of aircraft that arrived. He said this was the noisiest work area with the most prolonged exposure to noise. The noise came from either the engines which are mounted on the wings, air start of the engines, or the auxiliary power unit (APU) in the tail of the aircraft. Most planes had two cargo doors, one near the middle of the plane and the second closer to the tail. The APU was mounted near the tail of the plane. It was the loudest source of noise. Loading/unloading required one member to be inside the plane while the other was outside. He would rotate with his team members, inside or out, and front or rear cargo doors.

The worker explained that in performing the loading/unloading duties his left ear would be closer to the source of the noise than his right ear. He also said that sometimes he would have to lift his hearing protection to hear his co-worker. He thought this may contribute to his left hearing loss.

In closing the worker commented that:

"Why is it in one ear? You know what? I don’t know. Maybe -- maybe one time -- maybe one time at work it did get damaged and then maybe it just got worse. I don’t know. I’m not a doctor. But I do know that when they’re talking about generally this and generally that, well, I just know my case, that I worked in a noisy environment. It was noisy all the time."

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker made a request to the WCB for a hearing aid for his left ear in respect of his hearing loss which he attributes to his years of exposure to noise in the workplace. The WCB has accepted the worker's claim but has refused to provide a hearing aid for the worker.

In order for the worker’s appeal to be successful, the panel must find that the worker requires a hearing aid as a result of his workplace hearing loss. Specifically the panel must find that the difference in the hearing loss in the worker's left ear as compared to his right ear is due to his exposure to occupational noise. The panel was not able to make this finding. The panel finds there was insufficient evidence that the exposure to occupational noise caused the significant asymmetric hearing loss in the worker's left ear.

The panel considered it necessary to deal with the issue of the difference in hearing loss between the worker's right and left ear as noted in the opinion of the WCB ENT specialist. The specialist noted that the worker had a significant asymmetric loss with the left ear being much worse. He said that information on the file indicates that occupational noise exposure would have affected both ears equally. He indicated that the worker did not require a right hearing aid and that his need for a left hearing aid would be dependant on the cause of the left ear hearing loss. The panel accepts that the WCB will only be responsible for a hearing aid for the left ear if the cause of the hearing loss in the left ear is work related.

The worker suggested that the hearing loss in his left ear was related to the fact that his left ear had greater exposure to noise than his right ear. At the hearing the panel questioned the worker extensively on his work duties, work site and exposure to noise. After hearing the worker's evidence, the panel makes the following findings of fact regarding his workplace exposure to noise:

• The worker worked in a baggage handling position between 1976 and 1982.
• The duty with the most noise exposure was baggage loading and unloading. Delivering baggage also involved significant exposure to noise. The indoor duties did not expose the worker to significant noise.
• The worker worked primarily at the loading and unloading duties.
• The exposure to noise in the various positions was essentially the same for both ears.

The panel considered the evidence that his left ear was closer to the source of the noise than the right. This explanation does not take into account that there would be many times when the right ear was closer to the source of the noise and that hearing protection was usually worn on both ears. As well, the worker's evidence was that the baggage/loading job involved rotation in and out of the plane and from the front and rear cargo doors. This would expose both ears to similar noise levels. The panel also notes that the worker's co-worker did not support the position that one ear sustained greater exposure to occupational noise than the other. Accordingly, the panel was unable to find that the worker's left ear suffered a significantly greater exposure to occupational noise than his right ear.

Given the panel's conclusion that the evidence does not demonstrate that the worker's left ear sustained a significantly greater exposure than the right ear, the panel is unable to find that the worker's asymmetric hearing loss in the left ear is due to his exposure to occupational noise.

Accordingly, the panel finds on a balance of probabilities that the worker is not entitled to a hearing aid for his left ear hearing loss. The worker's appeal is dismissed.