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 an increase of his Permanent Partial Disability ("PPD") award with respect to his hearing loss claim. A hearing was held via teleconference hearing on October 10, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to an increase in his permanent partial disability award for hearing loss.

Decision

That the worker is not entitled to an increase in his permanent partial disability award for hearing loss.

Decision: Unanimous

Background

The worker filed a claim for noise induced hearing loss in 1984 and that claim was accepted. The worker was awarded a 6.8% PPD effective December 15, 1984. His hearing aids were covered by the WCB. It is to be noted that the worker worked as a supervisor in a construction setting (heavy equipment operating around him) for many years. Prior to this he also worked as a general labourer in construction for a short period of time.

In 1999 the worker's claim was re-evaluated for noise induced hearing loss and his Permanent Partial Disability (“PPD”) was adjusted to 13.8% with an effective date of April 23, 1999. In 2005 the worker's claim was re-evaluated for noise induced hearing loss and his PPD was again adjusted to 20.4% with an effective date of December 2, 2004. The WCB continued to cover the worker's hearing aids throughout his claim. In or around January 2011 the worker's spouse contacted the WCB to report further deterioration in the worker's hearing loss and requested a re-assessment of his PPD.

When speaking with a WCB case manager on March 16, 2011, the worker advised that he was unable to wear his hearing protection with his hearing aids as it caused him ear infections. The worker stated that the hearing aids which the WCB purchased for him in 2006 gave him ear infections all the time so the hearing centre supplied a loaner set a few years back and they seemed to help. The worker said he wore his hearing aids at work mainly for safety reasons. When he wore his hearing aids at the work site, they amplified the decibel levels that he was exposed to and it was causing him more hearing loss. He can be anywhere from standing next to equipment to over 20 feet away. The case manager advised the worker to have an audiologist submit a request to the WCB for new hearing aids and that the WCB would then decide on a PPD increase.

On July 20, 2011, the worker contacted his WCB case manager to advise that he was planning to go on disability due to his hearing loss.

On August 5, 2011, the worker was advised that the WCB accepted responsibility for two new hearing aids from the WCB's approved product list.

Upon consulting with the WCB's ear, nose and throat consultant, the WCB case manager requested that the worker undergo genetic testing to determine the etiology of his hearing loss and to determine whether or not it may be genetic in nature. A report was received from a physician specializing in medical genetics dated August 13, 2012. This report was reviewed by the WCB's ear, nose and throat consultant on November 5, 2012 where it was noted that the medical genetics specialist:

"…agreed with the worker that there is no need to proceed with the genetic testing, as we requested, since the results will have no impact on the worker's further management. We clearly indicated in our request that the testing is for the purpose of determining the etiology of the hearing loss. She indicated that the possibility of a genetic hearing loss is still a possibility despite the negative family history of hearing loss. Also, she stated the following:

'In view of there being absolutely no other family history and the knowledge that some of the late onset sensorineural hearing loss is often autosomal dominant, I would venture to think that this may be a possibility in [the worker], i.e. it is possible that he is the first one who presents with an autosomal dominant type of late onset sensorineural hearing loss in this family.'

The only genetic testing that is available at this time is testing for mutations in connexin 26 genes. If the results are positive, then a genetic hearing loss is confirmed. Negative results do not mean that genetic hearing loss does not exist. Genetic testing for hearing loss is still in its infancy and testing is not available for all the genes that are responsible for hearing loss.

…

Despite using hearing protection and hearing aids with noise suppressors at work, the worker continues to have severe deterioration in his hearing. Now he has profound hearing loss. The audiograms of 2010 and 2011 show no hearing above 2000 Hz in the right ear and no hearing above 4000 Hz in the left ear.

Given the physical structure of the inner ear and related cochlear mechanics, occupational noise exposure would not cause a profound hearing loss. Occupational noise exposure may cause sensorineural hearing loss of up to 75 dB in the high frequencies…Although the worker denied any family history of hearing loss, he may well still have genetic hearing loss, in the manner reported by [physician specializing in genetics] on August 13, 2012, as mentioned above.

In conclusion, the history and all the medical information on file indicate that the worker's hearing loss is not caused by occupational noise exposure alone. There is a major co-existing condition that is causing degenerative changes in the hearing organ, most probably genetic."

In a decision dated November 8, 2012, the WCB case manager determined that a relationship between the deterioration in the worker's hearing and his occupational noise exposure had not been established. The WCB case manager noted that the worker's hearing tests, including the earliest hearing tests, were not consistent with noise induced hearing loss but rather were consistent with genetic hearing loss. In conclusion, the WCB case manager determined that the medical evidence on file did not support that the deterioration in his hearing was due to occupational noise exposure.

In January 2013, the worker provided a submission to Review Office that contained a letter from an independent ear, nose and throat physician who stated that the worker had "bilateral hearing loss consistent with noise exposure." The worker stated that he did not have a genetic basis for his hearing loss and that the information provided by the WCB's ear, nose and throat specialist was inaccurate and misleading. In February 2013, the worker provided Review Office with a further submission which indicated that he had suffered additional damage and impairment to his hearing as a result of the amplification from his WCB approved hearing aids while working in construction.

On April 4, 2013, the WCB's ear, nose and throat specialist reviewed the worker's file at the request of Review Office. The specialist stated that the additional hearing loss since 2004 was not in keeping with noise induced hearing loss. In addition, the manufacturer of the workers’ hearing aids confirmed that the worker was provided with hearing aids with noise suppressors, therefore the worker's further deterioration in his hearing cannot be attributed to the use of hearing aids at the workplace.

On April 15, 2013, the worker called Review Office to advise that he was submitting additional information with respect to his appeal. The worker indicated to Review Office that his hearing aids did not have noise suppressors. Review Office noted to the worker that they had contacted the manufacturer of his hearing aids and had also contacted the lab and that they pulled his records which indicated that the pair he kept in 2006 had noise suppressors built-in.

In its decision dated May 6, 2013, Review Office determined that the worker was not entitled to an increase in his PPD award for hearing loss as it was unable to establish that the worker had suffered additional noise induced hearing loss since his PPD award was last reviewed in 2005. Review Office stated that it accepted the comments made by the WCB's ear, nose and throat specialist on November 5, 2012 and April 4, 2013.

Review Office did not accept the worker's position that his hearing aids amplified the noises at his place of work which caused further hearing loss. It noted that the worker's hearing aids were equipped with sound suppressors and this fact would have negated the possibility of his hearing aids amplifying the workplace thereby causing further hearing loss.

On May 25, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Worker’s Position

The worker’s position is that there is no evidence to substantiate the Review Office’s decision that he is not entitled to an increase in his PPD, and referenced the submission he had made to Review Office.

Employer’s Position

The employer was not present at the hearing.

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. As the worker’s date of accident was established as December 15, 1984, his benefits are assessed under the Act as it existed at that time. Payment of compensation for permanent disability was provided for under subsections 4(10), which reads as follows:

Permanent disability

4(10) The board may award compensation under this Part in respect of the permanent disability suffered by a workman but without temporary total disability.

In addition, WCB Policy 44.10.20.10, Pre-Existing Conditions, (the “Policy”) provides that:

The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the court of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Analysis

In order for the worker's appeal to be successful, the panel must find through the evidence that on a balance of probabilities, the worker suffered additional noise induced hearing loss since his PPD award was last reviewed in 2005. Following a review of the evidence, the panel was unable to make this finding. In reaching this decision, the Panel places weight on the following points:

1. On September 27, 2011 it was indicated that earlier audiograms were not typical of those seen in noise induced hearing loss, but rather suggestive of a genetic or hereditary type of hearing loss. In that regard, the worker was then referred to genetic testing;

2. On November 5, 2012 the WCB consultant indicated the only genetic testing that was available at this time was testing for mutations in connexin 26 genes. If the results are positive, then a genetic hearing loss is confirmed. Negative results do not mean that genetic hearing loss does not exist. Genetic testing for hearing loss is still in its infancy and testing is not available for all the genes that are responsible for hearing loss;

3. The WCB consultant further stated that the history and medical information on file indicates the worker's hearing loss is not caused by occupational noise exposure alone. There is a major co-existing condition that is causing degenerative changes in the hearing organ, most probably genetic;

4. The audiograms show progressive deterioration involving all the frequencies. It was noted that current audiograms show profound sensorineural hearing loss and that the worker's hearing loss had accelerated over the last ten (10) years; and,

5. Contrary to what the worker stated, his hearing aids were equipped with sound suppressors and the panel does not find sufficient evidence to support the worker's position that suppressors were turned down.

The panel considered the worker's position that his use of hearing aids amplified the decibel levels of his exposures. The panel notes there is insufficient evidence or opinion from a health care provider or ENT specialist to lead us to such a finding. Given the panel's finding in regard to the presence of noise suppression in the worker's hearing aids, we are unable to accept the worker's position.

Based on the whole of evidence, the panel finds on a balance of probabilities the worker is not entitled to an increase in his PPD for hearing loss. The worker's appeal is therefore denied.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 3rd day of December, 2013