The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his hearing loss did not meet the criteria outlined in WCB Policy 44.20.50.20 Hearing Loss. Hearings were held on May 1, 2013 and July 17, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In September 2011, the worker filed a claim with the WCB for noise induced hearing loss that he related to his years of employment as a welder. The worker reported that he first became aware of a hearing problem in July 2006 and that his hearing loss came on gradually. The worker reported that he had no hearing problems when he immigrated to Canada in 2001 but noticed that something was wrong after two to three years.

The WCB contacted the employers identified by the worker to gather information related to the worker's noise exposure while in their employ. The WCB also gathered information from the worker regarding his hearing loss difficulties which included details of his work history prior to immigrating to Canada and details related to his military service. The file also contains audiology results dated November 10, 2011 which reported signs of noise-induced hearing loss.

On December 22, 2011, the worker was advised by Rehabilitation and Compensation Services that his claim for noise induced hearing loss was not compensable. The case manager referred to the information he obtained from the various employers. He stated:

…the available information does not establish work related exposure to noise at or above 85 decibels for a sufficient period of time to meet the WCB threshold for noise induced hearing loss. Although noise level testing was not available from two of your former employers…the available testing at other employers shows an industry average noise level for a welder that is below 85 decibels. On a balance of probabilities the exposure at these firms would have been similar to those at your other employers, which are below the noxious threshold of 85 decibels. Therefore, your claim for compensation is denied.

On November 9, 2012, Review Office considered an appeal submission from the worker who disagreed with the WCB decision that his hearing loss was not sufficient to accept his claim. Following a review of all the file information, Review Office concluded that the evidence did not establish that the worker was exposed to sound levels at or above 85 decibels for the time periods required to meet the criteria outlined in the WCB's hearing loss policy, and therefore his claim for noise induced hearing loss was not acceptable. On December 12, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on May 1, 2013.

The May 1, 2013 hearing was adjourned to provide notice to a number of employers noted on the worker's compensation claim. The appeal panel subsequently determined that inviting the worker's prior employers was not required. The hearing was then rescheduled and took place on July 17, 2013.

Following the hearing, the appeal panel requested information from Manitoba Workplace Safety and Health Branch related to noise level surveys pertaining to an aluminum MIG welder and from a particular employer. The information was later received and was provided to the worker for comment. On September 10, 2013, the panel met further to discuss the case further and considered a submission from the worker dated September 8, 2013.

Reasons

Applicable Legislation and Policy

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act. Hearing loss claims are adjudicated by the WCB as occupational disease claims.

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, in part:

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.

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.

The worker disagrees with the WCB and Review Office decisions that his claim is not acceptable. The key issue to be determined by the panel deals with causation and whether the worker’s hearing loss arose out of and in the course of his employment.

Worker's Position

The worker explained the reasons for his appeal. The worker told the panel that he worked in the welding industry since he moved to Manitoba in 2001.

The worker attributed his hearing loss to his work as a welder between 2001 and 2006. The worker identified and answered questions about each workplace where he was employed in Manitoba during this period.

The worker advised that he primarily welded aluminum materials. He welded I-beams, sheets and tubing. The worker stated that hearing protection was not provided at the workplaces and that safety meetings were not convened.

With respect to his employment, the worker provided the following information:

• First employer: April 2001 to April 2002 approximately 15 months (note employer reports March 2001 to June 2001 and September 2001 to July 2002), the worker advised that he worked between 7 and 10 hours each day and frequently worked on Saturdays. The worker did MIG welding. His work bench was close to the grinding area which was very noisy.

• Second employer: July 2001 to April 2003, approximately 20 months. The worker worked concurrently with the first and second employer doing MIG welding. There was welding, grinding and hammering in the workplace but the noise was not continuous. His shifts were 8 hours. He did not work weekends.

• Third employer: November 2004 to June 2005, approximately 7 months. The worker worked 8 hour shifts. There was noise from welding, hammering, grinding, and movement of pallet jacks. The noise was not continuous.

• Fourth employer: July 2005 to June 2006, approximately 12 months. The worker worked 10 hour shifts. Noise sources included welding machines and grinders.

The worker said that in 2006 he began working for his fifth employer. He said this employer was very safety oriented, supplied proper protection, held hearing safety meetings and did regular testing. He said he had his first hearing test shortly after starting work at the fifth employer.

Employer's Position

The worker's employer from July 2006 to January 2011 provided a report to the WCB. The employer said that the worker had deteriorated hearing when he started work with the employer and that the level of his hearing deterioration did not change during his employment with the employer as noted in his hearing tests. The employer submitted that it is not responsible or accountable for any resultant WCB claim with respect to any deterioration of the worker's hearing.

Analysis

The issue for the panel to determine is whether the worker’s claim is acceptable.

In this case, the worker claimed an injury caused by prolonged exposure to occupational noise. In order to find the claim acceptable, the panel must find, on a balance of probabilities, that during his employment in Manitoba the worker was exposed to levels of noxious noise as set out in Paragraph 3 of WCB Policy 44.20.50.20, Hearing Loss. The panel was able to make this finding based on the evidence on file and presented at the hearing.

In addressing this appeal, the panel notes that the worker was tested by a doctor of audiology in November 2011 who opined that the worker's hearing loss is "consistent with prolonged excessive noise exposure."

The panel is aware that the worker has worked as a welder in other jurisdictions, but finds that worker was exposed to noise in his employment in Manitoba sufficient to cause a hearing loss. The panel notes that the worker began working as a welder in Manitoba in 2001. Unfortunately, information on the noise levels in the various workplaces when the worker was employed is not available. The panel therefore relies upon the worker's evidence regarding the equipment used in the various workplaces, the materials used, the type of welding performed, the proximity/placement of other welding stations, the dimensions of the room in which the welding took place, the availability of hearing protection and the hours worked by the worker.

The panel notes that the worker was primarily involved in MIG welding. To assist with its deliberations, the panel asked Manitoba Workplace Safety and Health for information regarding the operation of an aluminum MIG welder. Workplace Safety and Health advised that:

"Respecting noise exposure levels/surveys relating to the operation of an aluminum MIG welder, based on our data, it is reasonable to state that "the welders in general are likely exposed to noise above 85 dBA. The levels could be varied significantly depending on environment (physical size of the workplace) as well as numbers of workers performing noisy activities in the area as well as the type of other related processes such as hammering and grinding etc. In addition, our LEX data for welders ranged between 87-97 dBA."

Based on the worker's employment history, the panel concludes that the worker suffered a hearing loss in the workplace in Manitoba where he was exposed to noxious noise for a minimum of two years, at an average level equal to 85 decibels for eight hours of exposure on a daily basis.

The panel notes the worker had his first hearing test in Manitoba in July 2006 which demonstrated a hearing loss. He does not attribute his hearing loss to this employment with his employer at that time; rather, he feels that his loss primarily resulted from exposure between April 2001 and June 2006.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of September, 2013