The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker's widow is appealing the decision made by the Workers Compensation Board ("WCB") that there was no entitlement to a Permanent Partial Disability award with respect to the worker's claim for traumatic hearing loss of the right ear. A file review was held on February 12, 2014 to consider this matter.

Issue

Whether or not the worker is entitled to a permanent partial disability award.

Decision

That the worker is not entitled to a permanent partial disability award.

Decision: Unanimous

Background

On May 23, 1979 the worker suffered a traumatic right ear injury during the course of his employment as a power engineer. He was later diagnosed with a traumatic perforation of the right tympanic membrane. On August 27, 1979 the worker underwent a right fascia graft myringoplasty to repair the perforation. On June 23, 1980, the worker underwent a right fascia graft myringoplasty revision. In January 2008, the worker underwent further ear surgery, a right tympanoplasty.

On March 19, 2013, a WCB ear, nose and throat ("ENT") consultant reviewed the worker's claim to determine whether there was entitlement to a permanent partial disability ("PPD") award. The consultant stated:

"The worker had a traumatic perforation of the right tympanic membrane in 1979. He underwent a right tympanoplasty in 1980. According to [doctor], the surgery was successful for many years. The perforation recurred after ear syringing for wax removal and subsequent infection. This is not work related.

The worker saw [doctor] in 2005 for vertigo and the right tympanic membrane perforation. [doctor's name] advised against right tympanoplasty.

The worker underwent a right tympanoplasty by [doctor] in 2008. The surgery was not successful and the hearing deteriorated further in the right ear. This 2008 surgery was not authorised (sic) by WCB. Based on 2005 audiogram (last audiogram before the unauthorised (sic) surgery), the worker's hearing loss in the right ear, secondary to the traumatic perforation, is not ratable."

In a decision dated April 3, 2013, the WCB determined that based on the August 30, 2005 audiogram results (the last audiogram before the unauthorized surgery), the worker's hearing loss in the right ear, secondary to the traumatic perforation, was not rateable. On June 13, 2013, the worker's widow appealed the decision to Review Office.

On August 9, 2013, Review Office concluded that there was no entitlement to a PPD award. Review Office referred to and agreed with the opinion outlined by the WCB ENT consultant that the worker did not have a rateable impairment based on the 2005 audiogram results, which was the last audiogram before the non-compensable 2008 surgery. Review Office noted that the August 2005 audiogram showed that the worker's average loss of hearing between his right and left ears were not greater than 30 decibels (levels need to be 35 decibels in each ear before a PPD is awarded) and therefore the hearing loss was not ratable. The worker's widow disagreed with the decision and an appeal was filed with the Appeal Commission.

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.

At the outset, the panel notes that as the worker’s claim dates back to 1979, his benefits are to be assessed under the Act as it existed at that time. The panel finds that the worker should be considered for a "PPD" award under the pre-1992 legislation.

For hearing loss claims arising on or before March 31, 2000, WCB Policy 44.90.10.02 (the “Policy”) provides guidelines for calculating impairment awards. Attached to the Policy is a Permanent Impairment Rating Schedule (the "Schedule"). The Policy provides that impairment ratings are to be established strictly in accordance with the Schedule whenever possible and reasonable. The “Impairment of Hearing” section of the Schedule provides that:

When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz. In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear and the hearing loss in decibels is converted into percentage of impairment…. (emphasis added)

Worker's Position

The panel notes that the worker contacted the WCB about this claim in November 2012 and passed away on December 21, 2012. The appeal is being advanced by the late worker's widow.

On January 27, 2014 the Appeal Commission received correspondence from the worker's widow. She pointed out that the worker was an engineer and that the "… operating engineer must be able to hear the machinery so as to tell if there are any changes in sound. These changes alert the operating engineer to possible problems. Therefore they do not even leave the area to have lunch. As there is only one engineer on shift this means he or she is in close proximity to the noise the full 8 and ½ hours he is there."

Employer's Position

Various employers provided hearing test results.

Analysis

The issue before the panel is whether the worker is entitled to a PPD award in recognition of his hearing deficit, from a perforation of his eardrum and the subsequent surgical repair in 1980. The panel notes that the WCB has been able to confirm the worker's employment and exposure to loud noise.

In order for the worker's appeal to succeed, the panel must find that the hearing loss caused by workplace noise exposure and injury (including the 1980 surgery to repair same) has an average of 35 decibels in each ear over the four speech frequency levels, as per the Schedule.

As noted by the WCB in its prior decisions, the WCB is only responsible for hearing loss related to exposure to loud noise at work even within the surgical repair. Deterioration after retirement is not generally compensable by the WCB. The panel agrees that in this case the calculation should be based on the August 30, 2005 audiogram as it is the audiogram closest to the worker's departure from the work force and before the unauthorized surgery in 2008.

The August 30, 2005 audiogram showed that the worker's average loss of hearing in his right ear was 53.00 decibels and the average loss of hearing in his left ear was 29.50 decibels. The policy requires that the average loss of hearing in both ears must be above 35 decibels and the panel notes that this requirement was not met. As well, the difference in the average loss of hearing between his right and left ears was not greater than 30 decibels (right ear 53.00 minus left ear 25.50 equals 23.50) which would also not meet the policy requirements. Therefore, this level of hearing loss experienced by the worker is not rateable under the Schedule. The panel notes that the 2005 audiogram also includes any hearing loss associated with the 1980 surgery.

The panel notes that an audiogram was performed on January 10, 2010 after the worker's retirement. However, even this audiogram does not demonstrate a rateable impairment.

The panel finds that the worker's hearing loss does not meet the requirements of the policy, is not rateable under the Schedule and accordingly the worker is not entitled to a PPD award for his noise induced hearing loss.

The appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of March, 2014