Public Decisions | The Appeal Commission

Decision #104/13 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a permanent partial impairment rating for tinnitus resulting from a workplace accident on May 1, 2001. A file review was held on June 25, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to a permanent partial impairment rating related to tinnitus.

Decision

That the worker is entitled to a 1% permanent partial impairment rating for acute enhancement of tinnitus.

Decision: Unanimous

Background

In February 2008, the worker contacted the WCB to make a claim for hearing loss and tinnitus sustained over many years of workplace exposure. The claim for long term exposure with an accident date of April 6, 1982 was accepted and full coverage for two hearing aids was provided. The worker did not qualify for a permanent partial impairment rating as his average loss of hearing did not reach the minimum level of 35 decibels in each ear. He also did not qualify for a permanent partial impairment rating for his tinnitus as the legislation applicable to the injury date for this claim (April 6, 1982) did not provide for an impairment award for tinnitus.

The claim which forms the subject of this appeal was opened in respect of a workplace accident which occurred on May 1, 2001. On that date, the worker was working on a coach when a co-worker sounded an air horn. The worker's left ear was in close proximity to the horn and the sound caused ringing in his ears (tinnitus).

A review of previous medical records showed that in a referral letter to an ear, nose and throat ("ENT") specialist dated May 10, 2001, an occupational health physician noted that the worker had changes in his hearing tests over the years and had reported tinnitus since 1990. The physician noted that the worker noticed more sensitivity to loud sounds since the May 1, 2001 incident where an air horn was sounded and the tinnitus had increased since then. The worker also had a difficult time hearing conversations in noisy environments.

On May 23, 2001, the ENT consultant reported that the worker felt an increase in tinnitus, primarily in his left ear, since the air horn incident. This was superimposed upon longstanding bilateral tinnitus. She reported that an audiogram showed a mild high tone sensorineural loss to the right ear, and a more moderate to severe loss in the left ear. These results were consistent with those obtained in April 2001. The ENT consultant indicated that it could not be predicted whether or not the worker's tinnitus would resolve. If it did, it would do so spontaneously.

In a March 27, 2008 report, a Doctor of Audiology reported that a comprehensive audiological evaluation was conducted. The worker reported a history of occupational noise exposure and bilateral long-standing tinnitus was also reported. The audiological history was otherwise unremarkable. The specialist outlined his test results and noted that the worker's hearing loss and tinnitus for both ears was consistent with the reported history of occupational noise exposure. Recommendations were then made for hearing conservation and a trial binaural fitting.

On July 10, 2008, a WCB adjudicator referred the worker's case to the WCB's ENT consultant for an opinion as to whether or not the worker was entitled to a permanent partial impairment award for his tinnitus in regards to his compensable injury of May 1, 2001. The adjudicator noted that the worker had a 1982 claim with the WCB for noise induced hearing loss and had bilateral tinnitus prior to the accident on May 1, 2001.

On December 2, 2008, the WCB's ENT consultant stated:

"Comparison between April, 2001 (pre-accident) and May 16, 2001 (post-accident) audiograms shows essentially no change in hearing (average of 2.5 dB deterioration in both ears). This was also confirmed by [ENT consultant] in her report of May 23, 2001. As for tinnitus, according to [ENT consultant's] report, worker had long-standing bilateral tinnitus before the incident of May, 2001."

In a decision dated December 5, 2008, the worker was advised that he was not entitled to a permanent partial impairment rating as a result of his accident. The decision stated that under WCB Policy 44.20.50.20 a condition called tinnitus or ringing in the ears was compensable if the tinnitus was associated with the noise induced hearing loss and there was a history of 2 or more years of continuous tinnitus post 2000. According to his ENT consultant's report, the worker had a long-standing bilateral tinnitus prior to 2000. As such, his condition was not rateable and he was not entitled to a PPI award.

In a further decision dated May 1, 2012, the worker was advised that:

Medical documentation indicates a history of tinnitus pre dating the May 1, 2001 event. Although you have reported an increase in the tinnitus post May 1, 2001 there are no medical findings to confirm an increase in tinnitus.

Based on the available information there is no basis to change the prior decision as outlined in the decision letter of December 5, 2008.

On June 20, 2012, the worker appealed the decision to Review Office. The worker noted that his tinnitus became much worse after the incident which occurred on May 1, 2001. He noted that the air horn went off at 140 decibels within inches of his ears. He said he obtained hearing aids which help but the ringing in his ears was constant.

On August 3, 2012, Review Office considered the hearing test results from April to May 2001. It stated that the tests did not demonstrate a change in the worker's hearing loss. Based on this fact, Review Office was unable to confirm that a hearing loss occurred as a result of the May 1, 2001 accident. The worker was therefore not entitled to a permanent partial impairment award and the associated monetary award as the result of tinnitus. On May 9, 2013 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 and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Payment of compensation for an impairment is provided for under section 38 of the Act, which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award ….

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.01

Permanent Impairment Rating Schedule (the “PPI Policy”) which provides guidelines on how impairment awards are to be calculated for injuries from accidents occurring between April 1, 2000 to January 30, 2003, inclusive. The PPI Policy, in part, states:

1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the Executive or Senior Director responsible subject to the normal appeal process.

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A.

3. In the event that the Healthcare Services Department feels that strict adherence would create an injustice, or if it is felt that an impairment exists that is not covered by the schedule, Healthcare Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule. In such cases, it may use information other than the schedule such as the American Medical Association's Guides to the Evaluation of Permanent Impairment, established for a similar purpose….

WCB Policy 44.20.50.20, Hearing Loss (the “Hearing Loss Policy”) applies to claims arising from accidents on or after April 1, 2000. The first paragraphs of the Hearing Loss Policy state as follows:

GENERAL INFORMATION

Permanent hearing loss can be caused either by acute acoustic trauma or prolonged exposure to excessive noise. This policy applies to claims arising from long-term exposure to occupational noise that causes hearing loss. Any permanent partial impairment arising from such exposure will be provided for in Policy 44.90.10, Permanent Impairment Rating Schedule.

Claims arising from instantaneous noise-induced hearing loss resulting from a single exposure at close range are adjudicated in the same manner as other workplace accidents, and, if a permanent impairment results, an award is provided in accordance with the Permanent Impairment Rating Schedule.

With respect to tinnitus, the Hearing Loss Policy provides as follows:

4. Tinnitus is a perception of sound in the absence of acoustic stimulus. It may be of a buzzing, ringing, rushing, whistling or hissing quality. It may be intermittent or continuous.

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’s Appeal of Claims Decision form submitted that the WCB's interpretation of WCB Policy 44.90.10.01 (i.e. the PPI Policy) was an unjustifiable interpretation of the phrase "secondary to." He felt that there should not have to be a requirement for an increase in his noise-induced occupational hearing loss in order for the tinnitus to be rated. The worker pointed out that the statement in the ENT's medical report which indicated that: "undoubtedly the blast of sound has led to an increase in his tinnitus" had not been contested. He therefore asked that he be entitled to a permanent partial impairment rating in respect of his tinnitus.

Analysis

In order for the worker’s appeal to be successful, the panel must find that there is provision under the Act and/or WCB policies for a permanent partial impairment rating in relation to the increase in his tinnitus resulting from the May 1, 2001 accident. On a balance of probabilities, we are able to make that finding.

The workplace accident which gave rise to the worker's claim was an acute acoustic trauma. This claim does not arise from long-term exposure to occupational noise and therefore the panel finds that the adjudicative guidelines contained in the Hearing Loss Policy do not apply to this claim. Importantly, section 4 of the Hearing Loss Policy which limits claims for tinnitus to cases where the tinnitus is secondary to noise-induced hearing loss does not apply to the present case. The WCB's decision to disallow the worker's request for a permanent partial impairment rating was based on section 4 of the Hearing Loss Policy.

In the panel's opinion, this claim should be adjudicated as directed in the second paragraph of the General Information section of the Hearing Loss Policy which states:

The Appendix A of the Permanent Impairment Rating Schedule only provides an impairment rating for tinnitus where it is secondary to noise-induced hearing loss. It reads as follows:

D. Tinnitus

12. Tinnitus, when secondary to noise-induced occupational hearing loss, is rated as a 2% impairment of the whole person.

Appendix A contains no specific provision for tinnitus which is not secondary to noise-induced hearing loss. Accordingly, as per section 3 of the PPI Policy, the panel may use other information to establish an impairment rating. The American Medical Association's Guides to the Evaluation of Permanent Impairment, sixth edition (the "AMA Guidelines") states as follows:

The major problem with evaluating tinnitus is that it is primarily a subjective phenomenon. Consequently, it is frequently difficult to verify even the presence of tinnitus, let alone its consequences. Nonetheless, if the tinnitus interferes with ADL's, including sleep, reading (and other tasks requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to 5% may be added to a measurable binaural hearing impairment.

In this case, the worker suffered an acute enhancement to his pre-existing tinnitus. Although he had reported experiencing tinnitus prior to May 1, 2001, after the workplace accident, the tinnitus became more pronounced. According to the May 10, 2001 letter from the occupational health physician, the worker's tinnitus had increased post-accident and he was much more sensitive to loud sounds and had difficulty hearing conversations in noisy environments. The May 23, 2001 letter from the ENT reported that there was an increase in tinnitus, primarily in the left ear. The panel is of the view that the worker ought to be entitled to a permanent partial impairment rating for this acute enhancement of his tinnitus, which is an injury in and of itself, and need not be secondary to a long-term exposure hearing loss.

In a conversation with a case manager on November 27, 2007, the worker indicated that: "When he is in a quiet place both his ears ring." In his Request for Review form dated June 20, 2012, the worker indicated that: "The ringing is constant 24/7 - 365 days a year." The AMA Guidelines allow for a maximum rating of up to 5% for tinnitus. The scheduled rating for tinnitus secondary to noise-induced occupational hearing loss is 2%. The worker's acute enhancement of tinnitus is relatively mild and there is no evidence that it significantly affects his activities of daily living (ADLs). Nevertheless, it is constantly present, and therefore the panel finds that the worker is entitled to a permanent impairment rating of 1% for this permanent injury.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 21st day of August, 2013

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