Decision #133/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to for a permanent partial impairment/permanent partial disability rating for his tinnitus condition. A file review was held on October 15, 2013 to consider the matter.Issue
Whether or not the worker's tinnitus condition qualifies for a permanent partial impairment/permanent partial disability rating.Decision
That the worker's tinnitus condition does not qualify for a permanent partial impairment/permanent partial disability rating.Decision: Unanimous
Background
On April 18, 2007, the worker filed a claim with the WCB for noise induced hearing loss that he related to his employment as a traffic serviceman. The worker reported that he first became aware of a hearing problem in 1982 and that his hearing loss came on gradually. The worker also reported on his hearing loss form that he experienced ringing in both ears periodically.
On August 29, 2007, the worker was advised that his claim for compensation was accepted for noise induced hearing loss with the accident date being April 26, 1985, the date of the first hearing test where there was evidence of a hearing loss. The WCB also advised the worker that a WCB ear, nose and throat ("ENT") consultant had reviewed the audiograms on file and determined that the average loss of hearing in his right ear was 16.25 decibels while the average loss of hearing in his left ear was 21.25 decibels. This showed that the worker's hearing loss was not considered to be rateable and therefore he did not qualify for a permanent partial impairment ("PPI") award. The worker was also advised that it was the opinion of the WCB's ENT consultant that he would benefit from the use of 2 hearing aids and that the WCB would provide full coverage for his hearing aids.
In March 2013, the worker contacted the WCB to advise that he was having trouble with his hearing aids and also enquired about compensation for tinnitus. The worker indicated that his tinnitus condition was now constant and had been so for about two years.
On March 20, 2013, the worker was advised that the WCB was unable to issue an impairment award for his tinnitus based on his accident date of April 26, 1985. The case manager stated:
Based on the deemed accident date, we must apply the legislation which was in effect at that time. Board Policy 44.90.10.02, Permanent Impairment Rating Schedule, is used for hearing loss claims arising from accidents on or before March 31, 2000. This policy does not allow for compensation for tinnitus. Changes were made to the WCB's Permanent Impairment Rating Schedule for accidents on or after April 1, 2000 which allowed for a 2% permanent impairment rating for tinnitus related to noise induced hearing loss.
On April 8, 2013 the worker appealed the above decision to Review Office. The worker outlined his position as follows:
My hearing loss was dated from 1985 even though my claim was not accepted by WCB until Aug. 2007. Hearing loss, as well as tinnitus is not necessarily caused by an accident on a certain date, but as in my case over many years of being exposed to excessive noise in the work place. It clearly states that tinnitus could not be claimed until April 1st 2000. Prior to my claim in Aug. 26, 2007 there was never anything said to me…about tinnitus. Tinnitus first shows up on evaluation done by Winnipeg hearing centres on May 30, 2007, which is well after 2000. I am surprised that WCB did not evaluate…My tinnitus is now a full time high pitched ringing in both my ears. I have been told that it will never improve. I will have to live with this for the rest of my life, and for that I feel I should be compensated for tinnitus as well as my hearing loss.
In a decision dated May 22, 2013, Review Office determined that the worker's tinnitus does not qualify for a PPI award. Review Office confirmed that the correct date of accident for the worker's noise induced hearing loss was April 26, 1985. Review Office stated that the WCB's policy used for hearing loss claims do not allow compensation for tinnitus for accidents arising on or before March 31, 2000. Review Office noted that changes had been made to the WCB's rating schedule to acknowledge claims involving tinnitus and provide for compensation in the form of a 2% PPI. These changes were not retroactive and only applied to claims established on April 1, 2000 or later. On June 25, 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.
The worker has an accepted claim for noise induced hearing loss. He is seeking compensation for tinnitus which he experiences as a result of his noise induced hearing loss.
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.
Section 2(10) of the Act, in effect in 1985, provides:
2(10) Deemed of accident in case of disease
Where a disablement of a workman is caused by an industrial disease, the date of the beginning of the disablement shall be deemed to be the date of the accident.
In accordance with the Act, the Board of Directors established WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule, which applies to claims for permanent impairments, including hearing loss claims, arising from accidents on or before March 31, 2000.
Worker's Position
The worker provided a written submission to the panel dated June 25, 2013. He submitted that:
"The workers compensation board has denied my claim for tinnitus, stating that I do not qualify for benefits because they are using the date of first finding hearing loss in 1985. This is when my employer started doing annual hearing tests, and has nothing to do with WCB at this time. After monitoring my on the job hearing loss for many years, the [employer's] nurse advised me to put in a claim for hearing loss. This claim was accepted in 2007 not in 1985. My tinnitus was documented by [name] in 2007. The workers compensation board stated to me that they started recognizing claims for tinnitus in the year 2000. My claim for hearing loss was accepted by the WCB in 2007. I feel that my claim started in 2007 not in 1985 as they state. As time has gone by the tinnitus has gotten louder and is now a constant ringing in my ears. This, because of my on the job hearing loss, will never go away or lessen. I now have to live with annoyance for the rest of my life. For these reasons I feel that my claim should be accepted."
Employer's Position
The employer did not provide a submission to the panel but advised that "we have reviewed the issue under appeal and are of the opinion that the Appeal Commission is bound by Board Policy and, as such, see no purpose in making a submission in this regard."
Analysis
The issue before the panel is whether the worker's tinnitus condition qualifies for a permanent impairment/permanent partial disability rating.
For the worker's claim to be successful, the panel must find that the worker's tinnitus condition is permitted under the applicable statutory and policy provisions. The panel was not able to make this finding. The panel finds that the worker's claim for tinnitus is not allowed, as the WCB policies applicable to his claim do not recognize tinnitus as a compensable permanent impairment.
The worker said that the date of accident in his claim ought to be 2007 as this is when he first filed a claim for hearing loss. The panel notes that in establishing the date of accident for hearing loss claims, the WCB looks to the date of the audiogram that first confirms evidence of noise-induced hearing loss. The evidence confirms that the first audiogram establishing the worker’s hearing loss was conducted on April 26, 1985 and showed a pattern indicating a noise induced hearing loss. Therefore, we find that the date of accident in this particular case is April 26, 1985.
The panel notes that WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule, applies to claims for hearing loss for accidents on or before March 31, 2000. This policy does not provide for compensation for tinnitus. The panel finds this policy applies to the worker's claim and that accordingly the worker is not entitled to compensation for his tinnitus condition.
The panel acknowledges that the WCB commenced awarding compensation for tinnitus for claims arising on or after April 1, 2000. As the worker's claim arose in 1985, the worker's claim is not included in the policy change. Unfortunately for the worker, his noise-induced tinnitus arose prior to the effective date of the policy change regardless of when his tinnitus became constant. Accordingly, there is no entitlement to an award for tinnitus.
The worker’s appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 22nd day of October, 2013