Decision #41/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined the evidence did not support he sustained an accident. A file review was held on February 13, 2013 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On October 24, 2011, the worker filed a hearing loss claim with the WCB. The worker reported that he first became aware of a hearing problem about 10 years earlier and that it came on gradually. The worker attributed his hearing loss to his employment activities as a helper and manager at a grain elevator.
On December 28, 2011, a WCB adjudicator spoke with the worker by telephone with respect to his hearing difficulties. The worker reported that he worked for his employer from 1959 to 2001 and was now retired. For 1 to 2 years of his employment, he was a helper. Some of his job duties involved loading grain, cleaning grain, running cleaners and learning how to run them. The work was right in the elevator working with diesel engines that ran all day long. The worker indicated that he did not wear hearing protection. After the helper position, he became a manager at the grain elevator. The job duties were the same as a helper but he also operated hoppers to load the railway cars, etc. In the 1970s, they used grain augers which had the engines on them which they had to start. The worker was of the view that the majority of his noise exposure was from the cleaner. Loading cars was also noisy because of the grain coming down the slides to the car. He also felt that shutting and dumping the grain into the hoppers contributed to his hearing loss. The worker reported that he was involved in the armed forces from 1958 to 1964 during the weekends only. He fired the tanks in the tank core and always wore ear muffs. He also fired a regular issue rifle but very rarely.
In a note to file dated February 23, 2012, the adjudicator stated that she reviewed 3 prior claims which involved individuals who worked with the accident employer in the helper/manager positions during 1960 to 2001. She was able to confirm that an elevator manager would have been exposed to loud noise from using the augers, graders, air compressors, diesel engines to clear grain and trucks running. The equipment/machinery was loud enough to cause a hearing loss. No hearing protection was worn as it was not enforced with the company until 2002. Based on this information, the adjudicator felt that the claim was acceptable for noise induced hearing loss related to the worker's employment.
The file contains audiology reports dated September 11, 2008 and October 24, 2011. On October 24, 2011, the registered audiologist stated the worker's hearing loss was consistent with history of noise exposure.
On March 15, 2012, a WCB otolaryngologist [(Ear, Nose and Throat ("ENT")] specialist noted to the file:
The worker retired in 2001. The earliest audiogram we have on file is … 2008. This audiogram is diagnostic of presbycusis and not typical of NIHL [noise induced hearing loss]. Based on this audiogram hearing aids are not needed. The audiogram of 2011 shows further deterioration. This deterioration is not work related.
In a decision dated May 10, 2012, the WCB advised the worker that despite a confirmation of noise exposure between 1959 and 2001, the available information did not show a pattern of hearing loss that was consistent with noise exposure. The adjudicator stated that workplace noise exposure had not been confirmed after 2001. "If your confirmed noise exposure was the dominant cause of the hearing loss, it is probable that your hearing difficulties would have developed earlier. Based on the above information on file, on the balance of probabilities, your hearing loss is related to presbycusis rather than noise exposure. Therefore, your claim for compensation is denied." On May 29, 2012, the worker appealed the decision to Review Office.
On July 31, 2012, Review Office confirmed that the worker's claim was not acceptable for noise induced hearing loss. Review Office noted that the worker provided further details of his noise exposure at the workplace. Review Office found there was evidence to support that the worker was exposed to loud noise in and outside of the workplace; however, it was unable to establish that the type of hearing loss the worker experienced was noise induced hearing loss. Review Office placed weight on the opinion expressed by the WCB ENT consultant outlined on March 15, 2012. Review Office did not find the worker sustained an injury as a result of an accident.
On October 29, 2012, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy:
The Appeal Commission is bound to follow The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors.
The Act, in section 1, defines an accident as “…a chance event occasioned by a physical or natural cause; and includes…an occupational disease, and as a result of which a worker is injured.”
The Act goes on in section 4 to provide when compensation shall be paid for an injury caused by an accident arising out of and in the course of employment:
Compensation payable out of accident fund
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
4(4) Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.
The Board has established Policy 44.20.50.20 Hearing Loss (the “Hearing Loss Policy”) to address claims arising from long-term exposure to occupational noise that causes hearing loss. The Hearing Loss Policy states that:
1. Noise induced hearing loss occurs gradually – often over several years – and most hearing-loss claims do not involve a loss of earnings. For these reasons, it can be difficult to determine when the impairment began. For the purposes of this policy, the date of accident will be:
a) The date a loss of earnings has occurred, or
b) The date of an audiogram which shows evidence of noise-induced hearing loss.
Worker’s Position:
The worker appealed the decision of Review Office setting out his reasons for appeal, summarized as follows:
· The audiologist stated that his type of hearing loss is consistent with a long history of daily noise exposure.
· The worker was exposed to noxious noise in the workplace; in his private life, the worker’s exposure to noise was irregular and brief. In his time serving in the military reserves, the worker used proper protection during exposure to gunfire.
· The worker had his hearing tested in 2001 and the audiologist at that time noted hearing loss consistent with long-term noise exposure, but the worker is unable to provide a copy of that report.
· Other workers at the same place of employment had accepted claims with respect to noise exposure.
· The hearing loss meets the definition of accident under the Act.
Employer’s Position:
The employer did not participate in the appeal.
Analysis:
The issue for the panel to determine is whether the worker’s claim is acceptable. In order to find the claim acceptable, the panel must find on a balance of probabilities that the worker was injured as a result of an accident arising out of and in the course of his employment.
In this case, where the worker has claimed an injury caused by occupational disease (permanent hearing loss caused by prolonged exposure to occupational noise), in order to find the claim acceptable, we must determine that the noise exposure was the dominant cause of the injury to the worker. We are unable to do so based on the evidence before us.
The evidence is that the worker functioned without hearing protection in a noisy workplace environment between 1959 and his retirement in 2001. The WCB adjudicator was able to confirm the worker’s information that, in the course of his employment, he was regularly exposed to loud noise from using the augers, graders, air compressors, diesel engines to clear grain and idling trucks with engines running. Based upon the information obtained, the adjudicator concluded that the equipment/machinery was loud enough to cause a hearing loss.
The worker has experienced hearing loss in both ears. Although the worker indicates he had his hearing tested in 2001, we do not have before us any evidence of hearing loss dated earlier than the September 11, 2008 audiogram. In the 2008 report, the audiologist comments that the worker has “Normal hearing sloping to moderate high frequency sensorineural hearing loss, bilaterally” but does not make any comment as to the cause of the hearing loss.
We have reviewed a second audiologist’s report based on an examination conducted on October 24, 2011. In the 2011 report, the audiologist indicates “Normal hearing sloping to moderate high frequency sensorineural hearing loss, binaurally” and goes on to note the impression that the worker’s hearing loss is consistent with history of noise exposure.
The results of both audiology reports were reviewed by the WCB’s otolaryngologist ("ENT") specialist, who noted in a brief report to file dated March 15, 2012, that the 2008 audiogram “…is diagnostic of presbycusis and not typical of NIHL [noise induced hearing loss]…. The audiogram of 2011 shows further deterioration. This deterioration is not work related.”
Based on our review of the file and the evidence before us, it is clear that the worker was employed and functioned in a noisy environment. But exposure to noise does not in every case result in noise-induced hearing loss and not all loss of hearing is caused by exposure to noise at work.
We rely on the September 11, 2008 and October 24, 2011 audiogram results as providing specific evidence of the worker’s hearing loss.
The October 24, 2011 report of the audiologist notes an impression that the worker’s hearing loss is consistent with the history of noise exposure. This opinion is challenged by the opinion of the WCB ENT specialist of March 15, 2012 that the audiogram readings are not consistent with noise-induced hearing loss, but rather are consistent with presbycusis. The panel notes that presbycusis is age-related hearing loss, which is a non-compensable type of hearing loss.
We are not convinced on a balance of probabilities that the cause of the worker’s hearing loss is noise exposure. In this case, we give greater weight to the opinion of the WCB otolaryngologist that the audiogram readings are not consistent with noise-induced hearing loss than we give to the impression of the audiologist to the contrary.
The WCB ENT consultant also notes that deterioration in the worker’s hearing after he left his employment is not related to the workplace environment. This further supports the finding that the worker’s hearing loss is not the result of noise exposure in the workplace.
Having concluded that the dominant cause of the worker’s hearing loss was not noise exposure in the workplace, we cannot find there was an injury resulting from an accident arising out of and in the course of employment and the claim, is therefore, not acceptable.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 26th day of March, 2013