The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny his claim for noise induced hearing loss ("NIHL"). A hearing was held on March 6, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable for bilateral noise induced hearing loss; and

That the claim is acceptable for an acute injury to the left ear resulting from an accident arising out of and in the course of employment.

Decision: Unanimous

Background

On June 1, 2010, the worker filed a Worker Hearing Loss Report with the WCB which indicated that he first became aware of a hearing problem on February 10, 2010 which came on gradually. The worker reported that his hearing loss was due to loud banging at work and an injury at work. The worker provided the WCB with a work history summary which showed that he had been employed as a mechanic since 2004. When speaking with a WCB adjudicator on June 10, 2010, the worker indicated that slag entered his ear while welding and that his ear became infected.

File records showed that the WCB obtained additional information which consisted of the following:

• correspondence from the worker's current employer dated July 5, 2010 stating that the worker's hearing loss was not a result of his employment with their company but was due to factors outside the control of the company.
• memorandum dated July 22, 2010 regarding a phone call with the worker regarding his use of hearing protection, the tools he used during his employment as a mechanic and his work environment. The worker indicated that he worked next to welders who were always banging with sledge hammers.
• correspondence from Service Canada dated November 26, 2010 outlining the worker's employment history from 1984 onwards.
• memorandum dated January 10, 2011 regarding a phone call with the worker regarding his use of hearing protection during his employment with different tire companies.
• audiogram results and reports from various ear, nose and throat ("ENT") specialists.
• December 15, 2011 opinion from the WCB's ENT specialist that the worker's hearing loss was consistent with the history of chronic ear disease and not diagnostic of NIHL.

On January 20, 2012, Rehabilitation and Compensation Services ("RACS") determined that no responsibility would be accepted for the worker's claim based on the following factors:

• the WCB medical opinion that the worker's type of hearing loss was consistent with a history of chronic ear disease (chronic ear infections) and was not indicative of NIHL.

• there was no evidence that the worker's left ear hearing loss was the result of a piece of welding slag entering his ear on February 10, 2010. The following information was used to make this determination:

a) the worker did not report the slag incident until approximately February 24, 2010;

b) the medical examination of February 17, 2010 provided evidence of an ear infection but not of a burn;

c) the worker had a history of ear infections based on his medical history;

d) the worker had hearing loss in both ears prior to this incident as shown in a 2007 hearing test;

e) the current testing showed that the worker's hearing loss was worse in his right ear.

• the WCB was unable to establish that the worker's hearing loss was associated with noxious noise exposure as the type of hearing loss was not consistent with NIHL.

On February 27, 2012, the worker's treating physician opined that the worker's hearing loss was a combination of NIHL and the slag burn that the worker sustained at work.

On May 29, 2012, RACS advised the worker that after reviewing his entire file and the new information, it was unable to determine that his hearing loss was the result of a burn at work or an occupational noise exposure. On August 16, 2012, the worker appealed the decision to Review Office.

On October 31, 2012, Review Office referred to specific file information to support its position that the worker's claim was not acceptable as it was unable to establish that the worker sustained an accident as a result of a piece of welding slag entering his left ear on February 10, 2010 and was unable to establish that the worker's bilateral hearing loss was an accident caused by exposure to levels of noxious noise as set out in the WCB's Hearing Loss Policy.

On September 5, 2013, the Worker Advisor Office submitted new information for Review Office's consideration and advanced the following position:

…[the worker] had a bilateral pre-existing ear condition prior to his employment with (employer) in 2006. [The worker] did not report any hearing difficulty until 2010 approximately 4 years after his employment. It has been confirmed that noise levels in the workshop can exceed 85 decibels and that [the worker] is exposed to hammering without ear protection. Hearing assessments confirm that [the worker] suffers from mixed bilateral hearing loss. Literature on Sensorineural hearing loss states that this condition can result from prolonged exposure to very loud noise in the workplace. There is no clinical evidence to confirm that [the worker's] sensorineural hearing loss is "mimicking" noise induced hearing loss.

It is our position that the stated information supports on a balance of probabilities that [the worker's] bilateral hearing loss is related to exposure to noxious noise in the workplace. Therefore his claim should be acceptable.

In a decision dated November 18, 2013, Review Office stated that no change would be made to its decision of October 31, 2012 based on the following factors:

• it gave little weight to the co-worker's statement of July 13, 2013 that the worker yelled saying that a piece of slag had flown into his left ear while they were trying to remove a drive sprocket that had a broken bolt. Review Office preferred the evidence in proximity to February 10, 2012 as outlined in their October 31, 2012 decision.

• the September 19, 2013 surgical report indicated a history of tympanic membrane perforation secondary to trauma. It did not find the evidence to support that the left ear tympanoplasty surgery was a result of an incident that occurred at the workplace on February 10, 2010 and therefore it could not substantiate that an accident occurred as defined in the Act.

• the literature provided by the worker regarding sensorineural hearing loss was considered but Review Office found that the literature did not substantiate that the worker's hearing loss resulted from exposure to noxious noise in the workplace.

On November 21, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing 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.

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.

With respect to claims for hearing loss, the injury can be caused by either a workplace event (trauma or a single exposure to occupational noise) or long term exposure to excessive noise.

WCB Policy 44.20.50.20, Hearing Loss (the “Policy”) sets out guidelines applicable to claims for hearing loss arising from long-term exposure to occupational noise. The Policy states in part that:

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.

Worker’s Position

The worker was self-represented at the hearing and was accompanied by his spouse. The worker stated that he had been employed in the automotive industry for twenty-three years and during that time he was exposed to loud noise from heavy equipment. While hearing protection was provided, there were many situations where using the protective equipment was not practical. The worker had suffered a significant decrease in his hearing and it was frustrating to him that the WCB would not cover the cost of hearing aids.

The worker also spoke about chronic problems with ear infections. He stated that since he had left ear tympanoplasty surgery in 2012, he had not had any more infections. The worker felt that working underneath vehicles caused him to suffer ear infections. The worker also identified an incident in February 2010 when a piece of slag flew into his ear which caused him to suffer a severe ear infection. The worker felt that his hearing loss was also caused by the repeated ear infections.

Analysis

This issue in this case is whether or not the worker's claim is acceptable. In order for the worker’s appeal to be successful, the panel must find that either:

(a) The worker suffered a single workplace trauma (ie. an acute injury); or

(b) during the long term course of his employment, the worker was exposed to levels of noxious noise as set out in the Policy (i.e. long-term hearing loss).

After reviewing the information on file and considering the evidence given by the worker at the hearing, the panel finds, on a balance of probabilities, that the worker does have a claim for an acute injury but he does not have a claim for a long-term hearing loss injury.

Claim for an acute injury

One of the issues for the panel to consider was whether or not the evidence supported the finding that the worker suffered an accident at work in February 2010 when a piece of welding slag flew into his left ear.

At the hearing, the worker described an incident which occurred at work in mid-February 2010. It was near the end of the day when he was under a semi-trailer performing welding. He suddenly felt a burning sensation in his left ear. He yelled out, got up from under the truck, and went to the restroom where he tried to rinse out his ear with cold water. The worker indicated that a co-worker was present and that the incident was reported to the worker's supervisor.

A letter from the co-worker dated July 13, 2013 confirmed that he heard the worker yell when he was heating a broken bolt and that the worker told him that a piece of slag had flown into his left ear. Similarly, on January 18, 2012, the supervisor confirmed that the worker had reported the slag incident, albeit approximately two weeks after the incident had occurred.

Although his ear was sore, the worker did not feel he had to go to see a doctor and was anxious to leave on a previously planned trip to Minneapolis for the Valentine's Day weekend. Over the weekend, his ear became increasingly painful and began to pus. The worker's spouse was present at the hearing and she confirmed that they had to cut their trip short due to the condition of the worker's ear.

When they got back, the worker's evidence was that he went to see his family doctor. A report dated January 1, 2012 from the family doctor confirmed that the worker was seen on February 17, 2010 at which time he reported: "(The worker) was torching some exhast (sic) system bolts at work. He reported that a spark from the torched material flew up and went into his ear canal. He reported a burning sensation and a lot of pain in the ear canal." In earlier reports, the family doctor indicated that the worker had presented on February 17, 2010 complaining of decreased hearing in the left ear which appeared to be otitis externa. The worker tested positive for Staph Aureus which was treated with antibiotics. After the infection cleared, there was still a blocked feeling and decreased hearing so the worker was referred to a specialist.

The panel observes that the worker was not a very good historian. He had a tendency to simplify the facts and required prompting to provide full responses. Nevertheless, in view of the corroborating information from the co-worker, supervisor, family physician, and the worker's spouse, the panel is satisfied that an incident occurred in mid-February 2010 whereby a piece of welding slag flew into the worker's ear and caused him to suffer an ear infection. We therefore find that he has an acceptable claim for this acute injury. In making this decision, however, the panel does not make any determination as to the amount of benefits to which the worker is entitled as a result of this acute injury. Although we have found that the worker suffered a Staph Aureus infection as a result of the slag in his ear, there is not enough information on file to determine whether the worker suffered any permanent hearing loss or required the 2012 left tympanoplasty surgery because of the infection. The panel specifically notes that the worker has a history of chronic ear infections so further investigation is needed to determine the extent to which the February 2010 infection caused any permanent damage to his ear.

At the hearing, the worker also submitted that working under trailers caused him to become more susceptible to ear infections as salt and water would drip into his ears. The panel finds that there is not sufficient evidence to support this position as proposed by the worker.

Claim for long-term hearing loss

It is the panel's understanding that NIHL is typically identified by a very distinctive notched pattern in an audiogram. The WCB ENT specialist reviewed the worker's audiograms and in a memo dated December 15, 2011 stated: "All his audiograms show bilateral mixed hearing loss. This hearing loss is consistent with the history of chronic ear disease and not diagnostic of noise induced hearing loss."

The panel accepts the WCB specialist's opinion and we therefore find that the worker does not have an acceptable claim for bilateral long-term NIHL.

Accordingly, the panel finds that the worker has an acceptable claim which is limited to an acute injury to the left ear. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

- Presiding Officer

Signed at Winnipeg this 14th day of April, 2014