Decision #170/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for noise induced hearing loss was not acceptable. A hearing was held on November 25, 2013 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for hearing loss difficulties which she attributed to her years of employment as a factory worker. The worker provided the WCB with her employment history from 1985 onwards and stated that her hearing loss came on gradually.
In January 2013, a WCB adjudicator spoke with the worker and the employers identified by the worker to obtain additional information related to the worker's job duties and hearing loss difficulties.
In a decision dated March 6, 2013, the WCB determined that the worker's claim for hearing loss was not acceptable as the available information "did not establish a work related exposure to noise levels at or above 85 decibels for a sufficient period of time to establish a claim for noise induced hearing loss." To support her decision, the adjudicator noted that the worker was employed with a specific company between 1985 and 1991 and that the information provided was that the noise levels in Carburetor Assembly varied from 76 to 77.5 decibels. Another employer confirmed that the worker had been their employee but they could not confirm the duration of employment, duties or noise exposure. Three other companies also stated that the worker had been in their employ but were unable to confirm that the worker had been exposed to loud noise during her employment.
On March 18, 2013, the worker appealed the adjudicator's decision to Review Office. The worker stated that she had been employed in sewing factories from the age of 14 and she was not given any form of hearing protection. Most of the factories she worked in either closed down or the managers/supervisors were deceased. The sewing/embroidery machines were not like the current ones and were extremely loud when all were being operated together. The noise exposure was at least 85 decibels. The worker noted that she had support from her audiologist that her hearing loss was related to her employment with the various sewing factories.
On April 29, 2013, Review Office determined that the worker's claim was not acceptable for noise induced hearing loss. Review Office considered the worker's employment history and the various types of sewing machines that the worker used during her employment. After weighing all the evidence, Review Office was unable to establish that the worker was exposed to occupational noise levels to support acceptance of a noise induced hearing loss as defined by the WCB's Hearing Loss Policy. On October 8, 2013, the worker appealed the 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.
The worker is appealing the WCB decision that her claim for hearing loss is not acceptable. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
Long term hearing loss claims are adjudicated under the “occupational disease” provisions of the Act. Subsection 1(1)(c) defines an “accident” as including an occupational disease. This subsection later defines occupational disease as: “a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;”
The Board established Policy 44.20.50.20, Hearing Loss (the “Hearing Loss Policy”) which sets out guidelines applicable to claims for hearing loss arising from long-term exposure to occupational noise.
The Policy states in part that:
1. Noise induced hearing loss occurs gradually - often over many 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…
2. Claims for long-term exposure to noxious noise may be considered and paid on the basis of a claimant’s exposure with employers who are or had been registered in Manitoba.
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…
4. Tinnitus is a perception of sound in the absence of acoustic stimulus…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 was self-represented. She answered questions asked by the panel.
The worker said that she noticed a hearing problem while she worked for a parts manufacturer in 1985. While working on an air machine, she noticed that she could not hear the foreman. She described an incident, very soon after starting that employment, where the foreman spoke to her while standing behind her, and she had not heard him. She said she was packaging assembled carburetors. There was some machine noise but it was really noisy at the end of the cycle when she was heat sealing. This noise lasted for a few seconds.
She discussed her other employment. She said that between 1994 and 1997 she operated a zigzag sewing machine which was noisy. She explained the work process which involved other duties besides operating the sewing machine. She worked for other clothing manufacturers over many years but used a single needle sewing machine which she did not consider to be noisy.
She was asked if she ever worked where there was loud sharp noise or very high noise. She responded "no."
Employer's Position
The worker was employed by several firms during the time period considered in this claim. The employers did not participate in the appeal.
Analysis
The issue before the panel is whether the worker's claim is acceptable. For the worker's appeal to be approved, the panel must find on a balance of probabilities, that the worker was injured as a result of an accident arising out of and in the course of her employment.
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 her 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 not able to make this finding based on the evidence on file and presented at the hearing.
The worker's evidence, at the hearing, was that her work prior to 1985 was not in a noisy environment. She also explained that she was not in the paid workforce for significant periods of time prior to 1985. She attributed her hearing loss to exposure which began in 1985 soon after starting with an auto parts manufacturer. The panel then considered the worker's exposure from 1985 and forward:
- 1985 to 1991- worker worked at a parts company. Sound level records from this company do not establish exposure to 85db per day or more for the required time period. The panel also notes that the worker first noted a hearing loss near the start of that job, suggesting that her hearing loss had occurred prior to that job, rather from that particular job.
- 1992 - no employment is established from the worker's record of employment.
- 1992 - attended a career college.
- 1994 - worked in a sewing factory.
- 1994 to 1997 - worker worked in a sewing factory. The employer was unable to confirm sound levels in the factory. The worker told the panel that she was exposed to noise when using a zigzag sewing machine. She explained the work process and in particular the amount of time spent sewing versus handling materials and other tasks in the work cycle. The panel finds that her evidence did not demonstrate continuous exposure to loud noise as required by the policy.
- 1997 to 2008 - worker advised WCB that she was not exposed to noxious noise during this period.
The panel finds that the worker's hearing loss claim is not acceptable as the evidence does not establish that the worker was 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.
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 11th day of December, 2013