The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a permanent partial impairment award with respect to his hearing loss difficulties. A hearing was held on June 3, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to a permanent partial disability award.

Decision

That the worker is not entitled to a permanent partial disability award.

Decision: Unanimous

Background

On December 11, 2003, the WCB accepted the worker's claim for work related noise induced hearing loss dating back to 1990. At the time, the worker's loss of hearing was 11.25 db on the right and 17.5 db on the left and he did not qualify for a permanent partial disability ("PPD") award. The WCB did provide the worker with hearing aids for both ears.

On July 31, 2011, the worker retired.

On November 17, 2011, the worker contacted the WCB to inquire about the status of his claim with regard to a disability award.

On September 11, 2012, the WCB's ear, nose and throat ("ENT") consultant reviewed the file to determine whether the worker was entitled to a PPD award with respect to his hearing loss. The consultant determined that the worker was not entitled to a PPI award, as the conductive component of his hearing loss was secondary to chronic ear disease and tympanic membrane perforations which were not work-related. On October 1, 2012, the worker was advised by the WCB that he was not entitled to a PPD based on the consultant's opinion.

On October 20, 2012, the worker appealed the decision that he was not entitled to a PPD award. The worker indicated that he saw an ENT specialist on October 18, 2012 who felt that 50% of his hearing loss was due to chronic ear disease and 50% was related to noise exposure from work.

On October 23, 2012, Review Office advised the worker that his claim was being referred back to the adjudicator to obtain the specialist's report and render a new decision.

In a report to the adjudicator dated October 31, 2012, the treating ENT specialist stated:

Enclosed is a copy of this patient's audiogram. This illustrates a medical condition in his affected (sic) as a cause for his hearing loss. However, I do suspect that part of his hearing loss, the sensorineural component, is related to occupational noise exposure. Certainly, the trouble in his left ear is likely related to occupational noise exposure as well.

In a note to file dated November 6, 2012, the adjudicator documented discussing the worker's claim with the WCB's ENT consultant and wrote:

Bone conduction thresholds were used for PPI (sic) calculations as they represent the sensorineural portion of the hearing loss. [The ENT specialist] submitted the audiogram of July 2012 which was the audiogram used in calculating the impairment award.

[The ENT specialist] confirms the presence of another medical condition which has affected his hearing. He also confirms that the sensorineural portion of the hearing loss is the part related to noise exposure.

Based on this information, there is no change in the PPI (sic) calculation and decision to deny entitlement to an impairment award.

In a second decision dated November 6, 2012, the worker was advised that there would be no change to the original decision to deny entitlement to a PPD award. The adjudicator advised the worker of the method used by the WCB to calculate PPD awards with respect to hearing loss claims. In the worker's case, his average loss of hearing in his right ear was 29.75 decibels while the average loss of hearing in his left ear was 29.75 decibels. His hearing condition was not considered rateable as it did not meet the minimum level at which hearing loss was considered rateable. On November 20, 2012, the worker appealed the decision to Review Office.

On December 20, 2012, Review Office determined that the worker was not entitled to a PPD award for his noise induced hearing loss. Review Office indicated that the worker had a long standing history of bilateral chronic ear disease and bilateral perforations which were not accepted on the claim. Any impairment due to this loss was not considered when determining impairment awards.

Review Office noted that the worker's hearing deficit had been tested over four frequency levels and they averaged 29.75 decibels in his right ear and 29.75 decibels in his left ear. As the minimum requirements of the applicable WCB policy had not been met, the worker was not entitled to a PPD award for his noise induced hearing loss. On January 8, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

At the outset, the panel notes that as the worker’s claim dates back to 1990, his benefits are to be assessed under the Act as it existed at that time. When adjudicating the worker's claim, the WCB made reference to post-January 1, 1992 legislation which provides for a "PPI" award for permanent disability. The panel finds that the worker should properly have been considered for a "PPD" award under the pre-1992 legislation. This change in terminology does not significantly affect the analysis of whether the worker is entitled to an award. The larger effect would be on the type of compensation awarded.

Payment of compensation for permanent disability under the Act in effect in 1990 was provided for under subsections 4(9) and 40(1), which read as follows:

Permanent disability

4(9) The board may award compensation under this Part in respect of the permanent disability suffered by a worker but without temporary total disability.

…

Permanent partial disability

40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.

For hearing loss claims arising on or before March 31, 2000, WCB Policy 44.90.10.02 (the “Policy”) provides guidelines for calculating impairment awards. Attached to the Policy is a Permanent Impairment Rating Schedule (the "Schedule"). The Policy provides that impairment ratings are to be established strictly in accordance with the Schedule whenever possible and reasonable. The “Impairment of Hearing” section of the Schedule provides that:

When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz.

In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear and the hearing loss in decibels is converted into percentage of impairment…. (emphasis added)

The worker's position

The worker was self-represented at the hearing and the services of an interpreter were provided. The worker's evidence was that when he removes his hearing aids, he has only ten percent hearing in his right ear and twenty percent hearing in his left ear. His treating ENT specialist confirmed that the hearing loss on both sides was related to working in a noisy environment. The worker stated that his ENT specialist told him that fifty percent of his hearing loss was related to work, and fifty percent was related to the piercing of his eardrum and not work-related. The worker felt that he should be entitled to an award for hearing loss, given that it was so severe.

Analysis

The issue before the panel is whether the worker is entitled to a PPD award in recognition of his hearing deficit. In order for the worker's appeal to succeed, the panel must find that the hearing loss caused by workplace noise exposure has an average of 35 decibels in each ear over the four speech frequency levels, as per the Schedule.

In the present case, the audiometric records indicate that the first signs of noise induced hearing loss were present in 1990. Based on a hearing assessment performed on June 9, 2003, the worker’s average hearing loss at that time was 11.25 decibels in his right ear, and 17.5 decibels in his left ear. The Schedule provides that in order to merit a PPD award, the average of the four speech frequency levels must be 35 decibels in each ear. As the average hearing loss in both the worker's ears did not exceed 35 decibels, he did not qualify for a PPD award in 2003.

In this appeal, there is an audiogram dated July 18, 2012. This hearing assessment was performed using bone conduction thresholds, which measures the sensorineural portion of hearing loss, which is the type of hearing loss caused by exposure to noxious levels of noise. The worker's average hearing loss at that time was 28.75 decibels in his right ear, and 29.75 decibels in his left ear. As the average hearing loss in both the worker's ears does not exceed 35 decibels, he still does not qualify for a PPD award.

The information on file indicates that the worker has been out of the workplace since May 2010 and he retired on July 31, 2011. As the worker is no longer exposed to workplace noise, any future deterioration the worker may experience after this date cannot be considered to be work-related. At the hearing, the worker indicated that he had recently had a hearing assessment performed in 2013. As this was done post-retirement, these test results will not be relevant for the purposes of assessing the worker's entitlement to a PPD award. Basically, absent a return to the workplace and exposure to noxious levels of noise, the worker will not be eligible for a PPD award for his hearing loss.

At the hearing, the worker demonstrated that without his hearing aids, he is unable to hear. The panel acknowledges that the worker's overall hearing loss is severe, but information on file indicates that work-related sensorineural hearing loss is not the only component of the worker's hearing deficits. The medical reports indicate that chronic ear disease and tympanic membrane perforations are also contributors to his hearing deficit. As these conditions are not work-related, the hearing loss associated with these other factors is not taken into account when assessing whether the worker qualifies for a PPD award. The worker advised that his ENT specialist told him that his hearing loss is fifty percent due to work and fifty percent due to his pierced eardrum. The PPD assessment is based solely on sensorineural hearing loss, which was measured by the July 18, 2012 bone conduction hearing assessment. This is supported by the October 31, 2012 report from the worker's ENT specialist which states: "I do suspect that part of his hearing loss, the sensorineural component, is related to occupational noise exposure." As stated earlier, the sensorineural measurements do not meet the threshold of 35 decibels in any event, and therefore the worker does not qualify for a PPD award.

For the foregoing reasons, the worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of July, 2013