The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that his hearing loss difficulties were not compensable. A hearing was held on September 26, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In November 2008, the worker filed a claim with the WCB for noise induced hearing loss. On his Worker Hearing Loss Report, the worker stated that his hearing loss came on gradually and that he first became aware of a hearing problem while working for a saw mill. The worker attributed his hearing loss to "running a chain saw for the past 28 years." The worker provided a Work History Summary which listed the names of his employers from 1988 to 2008 and the type of machinery he operated.

On November 20, 2008, a WCB adjudicator contacted the worker to obtain additional information regarding the nature of his hearing loss. The worker told the adjudicator that he could not hear him very well as he had lost his hearing aid and that he would have his wife call him back. Later in the day, the worker's spouse called the WCB and the following information was provided:

• her husband never had measles, scarlet fever or a head injury. He had ear surgery to try and correct his hearing loss but the surgery was unsuccessful.
• in January 2008, her husband obtained a hearing aid for his right ear.
• her husband's employment was primarily seasonal and in the off season he collected employment insurance. Her husband worked on the rigs in Saskatchewan for a while but could not recall the name of the company.
• the worker had been working since the age of 17.

Initial medical information on file was a report from a psychologist dated September 5, 2008:

"…complaints of tinnitus in both ears as well as loss of hearing associated with the use of chain saws in the logging industry even though he was using hearing protection. He gives a history that as a child he had multiple ear infections and this may have contributed to his being predisposed for deafness. He has seen otolaryngologists in Yorkton and has been told that nothing can be done for his left ear. He has a hearing aid in his right ear. Because of his tinnitus he has not been able to sleep. He has developed symptoms of depression which include decreased energy and drive, low self esteem, increased irritability, impaired concentration and attention, anhedonia, feelings of hopelessness and worthlessness…"

A hospital emergency report showed that the worker attended for treatment on September 5, 2008 with complaints of ringing and humming in his ears. The ringing had been constant since 2003 when the worker had ear surgery for hearing loss. The diagnosis was anxiety.

A report from the Department of Otolaryngology received at the WCB on December 11, 2008 noted that the worker was seen at the clinic on June 22, 2000. The otolaryngologist reported that the worker previously had a right stapedectomy and that he had a good result from the surgery. The current clinical examination showed evidence of significant hearing loss in the left ear with a marked conductive loss. A left stapedectomy was being arranged.

On August 20, 2008, an ear, nose and throat ("ENT") surgeon reported that the worker had undergone stapes surgery in the past and that he had a marked mixed hearing loss in his right ear at the 55 decibel level. On the left side, the worker had no useful hearing. A CT scan had been carried out as a precaution and there was no evidence of an acoustic neuroma. An MRI scan had not been carried out as the worker had a stainless steel wire in his ear. The surgeon stated that the worker was left with a permanent total disability on the left side and partial impairment or disability on the right side. It was suggested that the worker avoid noisy environments, heights or moving machinery. He noted that the worker's tinnitus condition was overwhelming to him.

On December 1, 2008, an audiologist submitted an audiogram dated October 29, 2007. She reported that the audiogram revealed a mild sloping to a profound hi-frequency mixed hearing loss for the right ear, moderately-severe sloping to a profound hearing loss for the left ear. It was recommended that the worker consider "amplification binaurally."

On February 5, 2009, a WCB ENT consultant reviewed the file and formed the following opinion:

"Worker was diagnosed with bilateral otosclerosis. This is not work related. He underwent right stapedectomy in 1999 and left stapedectomy in 2001. Unfortunately, he lost his hearing in the left ear postoperatively. The audiograms and medical information on file do not support noise-induced hearing loss."

On February 19, 2009, Rehabilitation and Compensation Services ("RACS") advised the worker that his hearing loss claim was denied as a WCB ENT consultant opined that the audiograms and medical information did not support that he had a noise induced hearing loss.

Following the above decision, further medical information was placed on the file concerning the worker's hearing loss difficulties. On November 12, 2009, an audiologist wrote the WCB and stated:

"As you know, he has worked in the saw mills for 30 years running power saws. He has experienced tinnitus bilaterally for many years and is extremely bothered by it.

He has had stapedectomies conducted on both ears due to fusion of the ossicles of the middle ear. However, he also has a significant sensorineural hearing loss, which would be attributable to his occupational noise exposure…the current audiogram was conducted on September 24, the right ear and bone conduction thresholds are a more accurate reflection of the sensorineural hearing loss."

On December 28, 2009, a specialist outlined the opinion that the worker's left and right sided hearing loss with tinnitus was directly related to acoustic trauma which was caused by his 25 year history of using a chain saw.

On April 12, 2010, the worker's ENT surgeon stated:

"He has two causes for his hearing loss. Firstly, he has inherited otosclerosis causing the conductive component of his hearing loss for which he has undergone previous bilateral staples surgery which was unsuccessful in his left ear (the inherited conductive component of his hearing loss is remaining in this ear) and partially successful in his right ear. The second cause of his hearing loss is a bilateral neurosensory hearing loss related to excessive noise exposure. A small amount of this hearing loss may be related to his otosclerosis since it occasionally causes slight neurosensory impairment...In summary, the combination of these causes of his hearing loss has lead to total disability on the left side with partial impairment or disability on the right side…he must not work in noisy environments, in heights or around moving machinery."

In a submission to Review Office dated February 24, 2012, a worker advisor argued that the worker's hearing loss and tinnitus conditions were caused from using a chain saw over his many years of employment and from not being instructed in the proper use of wearing either plugs or muffs. The worker advisor referred to the medical information on file dated November 12, 2009, December 28, 2009 and April 12, 2010 and WCB Policy 44.20.50.20 to support that the worker's claim for compensation should be accepted.

On March 6, 2012, Review Office directed that RACS conduct a further investigation into the claim based on the points made by the worker advisor.

On April 14, 2012, the WCB's ENT consultant reviewed the file at the request of RACS and stated that there was no change to his opinion outlined on February 5, 2009. The consultant did not agree with the statements made by some of the audiologists and doctors on file that otosclerosis caused the worker's conductive hearing loss and that the sensorineural hearing loss was caused by noise exposure. He said it was a well known fact that otosclerosis caused both conductive and sensorineural hearing loss. It was also a known fact that conductive hearing loss protects the inner ear from the harmful effects of noise exposure by reducing the amount of loud sounds entering the inner ear.

On May 9, 2012, RACS determined that there was no change to the decision of February 19, 2009 based on the comments made by the WCB ENT dated April 14, 2012. On May 14, 2012, the worker advisor appealed the decision to Review Office. She said the worker remained of the opinion that exposure to years of chain saw noise had a significant effect on his hearing loss.

On July 5, 2012, Review Office confirmed that the worker's claim for hearing loss was not acceptable. Review Office noted that the worker's employment history prior to 1999 was sporadic and seasonal and that the worker's significant history of bilateral hearing problems pre-dated 1999. It noted that the operative reports in 1999 and 2001 indicated that the worker was receiving surgery for conductive hearing loss, that the worker had a history of childhood ear infections and that the audiograms on file were not indicative of noise induced hearing loss. Review Office stated that it agreed with the opinion provided by the WCB'S ENT consultant of April 14, 2012 and the decision made by the WCB adjudicator. On July 9, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on September 26, 2012.

Following the hearing and after discussion of the case, the appeal panel requested that the worker be seen by an independent ENT specialist for the purposes of determining his current status in relation to his hearing loss complaints. On December 13, 2012, the worker was seen by the ENT consultant and the consultant's report of March 20, 2013 was forwarded to the worker for comment. On April 22, 2013, the panel met further to discuss the case and rendered its final decision.

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 appealing the WCB decision that his claim for hearing loss is not acceptable. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

Long term hearing loss claims are adjudicated under the “occupational disease” provisions of the Act. Subsection 1(1)(c) defines an “accident” as including an occupational disease. This subsection later defines occupational disease as: “a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;”

The Board established Policy 44.20.50.20, Hearing Loss (the “Hearing Loss Policy”) which sets out guidelines applicable to claims for hearing loss arising from long-term exposure to occupational noise. 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.

4. Tinnitus is a perception of sound in the absence of acoustic stimulus…Claims for tinnitus are rateable if the tinnitus is associated with the noise induced hearing loss and there is a history of 2 or more years of continuous tinnitus.

Worker's Position

The worker attended the hearing with his spouse. The worker read his presentation to the panel. With the assistance of his spouse, he answered questions from the panel.

The worker told the panel that his hearing was good until he started working in a sawmill. He said one of his duties at the saw mill was to pull steel plates out of an edger and straighten them with a ball/peen hammer. In addition to the sawmill, the worker also worked for many years in the logging industry using a chainsaw. He estimated that he spent 80% of his time cutting trees and 20% in a mill.

In answer to a question the worker advised that he worked as a tree topper and that he worked from 8 to 10 hours a day, five days a week. He said that usually he worked about 9 months each year but sometimes worked for the full year.

The worker advised that his work included limbing trees. The trees were knocked down by a machine and put into piles of 5 to 10 trees. He would then remove the branches with a chainsaw. He cut softwood and hardwood.

The worker advised that he used ear plugs for protection in the mill and later, when chain sawing, used ear muffs.

The worker's main concern is ringing in his ears. He said ringing is present 24 hours a day. The ringing is very loud and prevents him from sleeping. This in turn is leading to depression. The worker advised that the ringing started in his right ear and then moved to his left ear. He said it started about 10 to 15 years ago.

The worker advised that his physician says that the ringing is work-related. He said he needs hearing aids to help with the ringing. He asked the panel to accept his claim.

He also advised that he had surgery around 2003 but that the surgery was not successful.

The worker advised that he is not currently working and has not worked since 2007.

Employer's Position

The worker was employed by several employers over his working career in Manitoba. None of the employers attended the hearing.

Analysis

The issue before the panel is whether the worker's claim is acceptable. For the worker's appeal to be approved, 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 the worker claimed that his hearing loss is the result of exposure to occupational noise in Manitoba. The evidence establishes that the worker worked for many years in Manitoba in the lumber industry. His career began in 1980 and concluded in 2007. His primary duties involved the use of a chain saw. While the worker wore hearing protection, we are satisfied that it did not prevent his noise induced hearing loss. The panel concludes that the worker has met the exposure requirements set-out in paragraph 3 of the Hearing Loss Policy.

The panel notes there is a difference of opinion on the file between the worker's treating physicians and the WCB ENT specialist regarding the cause of the worker's hearing loss. To assist in the adjudication of the claim, the panel obtained an opinion from an independent medical examiner ("IME"). In accepting this appeal, the panel attaches significant weight to the IME report which is summarized as follows:

I believe that the patient's current diagnosis is bilateral otosclerosis. [The worker] has had a complication of his left stapedectomy with a deaf left ear. In addition, he has a noise induced hearing loss that is likely the main cause of his right-sided tinnitus. The left ear is somewhat more challenging to pin down because of the above-mentioned complication post-stapedectomy. I do believe that had he had a successful stapedectomy there would also be a significant degree of tinnitus and high frequency hearing loss due to noise exposure on the left. I base my opinion on the fact that it is more likely that noise induced hearing loss is causing the tinnitus. This is based on acceptable world literature and current practice in otolaryngology. It is understood that otosclerosis will cause a mainly conductive hearing loss and that noise exposure to the level that was experienced by [the worker] can certainly cause a noise induced hearing loss with associated tinnitus. However, I do agree that his tinnitus is multi-factorial, especially on the left side due to the extent of the complication post left stapedectomy. I believe it is impossible to measure to what extent each factor a) the otosclerosis b) noise induced hearing loss c) the damage to the cochlea post stapedectomy, are causing.

We are satisfied, on a balance of probabilities, that worker has sustained a noise induced hearing loss due to his exposure to noise while employed in Manitoba.

The worker's appeal is accordingly approved.

Panel Members

A. Scramstad, Presiding Officer
M. Bencharski, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of May, 2013