The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for noise induced hearing loss was not acceptable. A hearing was held via teleconference on January 23, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In July 2012, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL"). The worker reported that his hearing loss was caused by his exposure to continuous noise in the workplace while employed as a heavy equipment operator in the construction and mining industries. The worker reported that his hearing loss came on gradually and he also had ringing in his ears. The worker provided details of his employment history from July 1958 to 1998.

The WCB obtained audiogram results and additional information from the worker related to his hearing loss difficulties and noise exposure outside of his work environment. On October 25, 2012, the WCB's ear, nose and throat ("ENT") specialist reviewed the file information and gave an opinion that there was no occupational explanation for the worker’s unilateral NIHL.

On October 26, 2012, the WCB denied the worker's claim for NIHL on the basis that:

"Occupational noise exposure is known to occur in both ears and you had hearing loss only in your left ear up until the time you retired….As you retired in 1998, we cannot say that the hearing loss in your right ear is related to your employment activities; rather the pattern of hearing loss in your right ear is indicative of age related hearing loss."

The WCB then received information from an audiologist that the worker had been exposed to a blast at work on June 16, 1982. In a decision dated February 1, 2013, the worker was advised that the WCB was unable to establish that the blast of June 16, 1982 had an effect on his hearing.

On February 19, 2013, the worker appealed the adjudicator's decision to deny his claim to Review Office.

On May 3, 2013, Review Office upheld the decision that the worker's claim was not acceptable. Review Office accepted the opinion of the WCB's ENT consultant and found that the evidence on file did not support that the worker sustained hearing loss due to the blast that occurred in June 1982. It also determined that the evidence on file did not support that there was an occupational explanation for the worker's unilateral NIHL.

On November 18, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held via teleconference.

Reasons

Applicable Legislation and Policy

In considering this appeal, the panel is 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.

Where there is a claim for hearing loss due to exposure to noise in the workplace, WCB Policy 44.20.50.20.01, Hearing Loss, sets out the criteria for acceptance of such a claim. The Policy states that noise-induced hearing loss occurs gradually and may not involve a loss of earnings. The Policy notes that not all hearing loss is caused by exposure to noise at work and sets the threshold for acceptance of a NIHL claim by the WCB as exposure to hazardous 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.

Worker’s Position

The worker represented himself at the hearing. He stated that his 22 years of employment with the employer had been in a high-noise environment. During that period, he had been exposed to high levels of noise on a regular daily basis. As a supervisor, he spent much of his days walking the floor in an environment of continuous noise. He indicated that, as a supervisor, he was diligent in his use of ear protection from the point at which such protection came to be required late in the 1970s or early 1980s.

The worker described an incident that took place in his workplace on June 16, 1982. On that date, a blast occurred in a smelter furnace. The worker stated he was walking away from the furnace and was approximately 20-25 feet from the location of the blast. He was wearing hearing protection at the time.

The worker indicated that he began losing his hearing before his retirement in 1998, noting he experienced ringing in his ears, had to turn up the volume on his television and needed to ask people to repeat what they were saying to him.

The worker took the position that there was no other explanation for his hearing loss other than the noise exposure in his workplace.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for this panel to determine is whether the worker’s claim for hearing loss is acceptable. In order to find the claim acceptable, the panel must find, on a balance of probabilities that the worker's hearing loss arose out of and in the course of his employment.

The panel heard from the worker as to the nature of his workplace exposure to noise. He described the noise as constant during that portion of his day when he was walking the floor.

The panel reviewed evidence on file indicating results of the employer’s workplace noise monitoring program. The worker explained that from time to time, he wore a personal noise monitor clipped onto his clothing, as did other employees. The results of the noise monitoring indicate that during the period of November 1, 1976 to May 31, 2000, the worker’s personal noise monitor showed results above the threshold of 85.0 dBA on one occasion. Test results based on monitors worn by other employees in the area the worker supervised showed noise levels above the threshold of 85.0 dBA on 17 occasions over the period of June 1, 1979 to May 31, 2000. The evidence on file indicates, however, that during this period, the employer required hearing protection to be worn which would have the effect of reducing a worker’s actual noise exposure from the levels monitored.

The worker did not dispute this evidence. He agreed that his noise exposure was diminished by the hearing protection worn and noted that he was diligent in using that hearing protection given his supervisory role.

The panel considered whether the worker’s exposure to the noise of the furnace blast on June 16, 1982 was related to his loss of hearing. The evidence reviewed indicates that the worker’s hearing had been tested on March 16, 1982, and was tested again on June 16 after the blast occurred, and again on August 13, 1982. Our review of the results of those tests showed no loss of hearing resulting from the worker’s exposure to the blast.

The audiogram evidence on file indicates that the worker experienced hearing loss in his left ear as early as 1982, but did not experience any loss of hearing in his right ear until 1997. While the pattern of loss of hearing in his left ear is consistent with NIHL, the pattern of loss in his right ear does not indicate NIHL. The WCB ENT consultant reviewed the worker’s file and stated that:

All the audiograms on file from 1982 to 1998 show NIHL (noise induced hearing loss) in the left ear only. The hearing in the right ear remained normal all the time until 1997 when a sensorineural dip shows up at 8000 Hz. This is secondary to presbycusis and not indicative of NIHL. There is no occupational explanation for the unilateral NIHL.

In order for this claim to be successful, we would need to find that the worker suffered from an employment-related noise induced hearing loss.

Having considered the worker's exposure history, the panel finds on a balance of probabilities that the workplace exposures identified by the worker did not meet the WCB policy threshold of two years of continuous exposure to levels of noxious noise.

The medical evidence before the panel does not support a finding, on a balance of probabilities, that the worker’s hearing loss is employment related; rather, it points to the hearing loss being due to another cause.

For the reasons noted above, we find that the worker’s claim for noise-induced hearing loss is not acceptable.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 11th day of March, 2014