Decision #57/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to a permanent partial disability award for his hearing loss or for his tinnitus condition. A file review was held on March 27, 2014 to consider the 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 July 23, 1991, the worker filed a claim with the WCB for noise induced hearing loss which he attributed to his work duties.
On September 27, 1991, the worker's file was reviewed by a WCB ear, nose and throat ("ENT") specialist to determine whether or not he was entitled to a disability award based on the results of an audiogram dated June 6, 1991. The ENT specialist noted that the worker's average loss of the four frequency levels was 3.75 decibels in the right ear and 10 decibels in the left ear.
On October 4, 1991, the WCB advised the worker that his claim for noise induced hearing loss had been accepted, however, he was not entitled to a disability award as his hearing loss did not fall into the rateable range.
On August 4, 1995, the worker's file was again reviewed to determine whether or not he was entitled to a disability award based on the results of an audiogram dated July 13, 1995. The WCB's ENT specialist noted that the worker's average loss of hearing in his right ear was 3.75 decibels and 11.25 decibels in his left ear. Based on the ENT's findings, the worker was advised by letter dated September 7, 1995, that his hearing loss did not fall within the rateable range for a disability award as the average decibel loss was below the minimum 35 decibels.
On November 1, 2013, the WCB determined that the worker was not entitled to a permanent partial impairment award for his tinnitus condition. The WCB adjudicator noted that the date of accident related to the worker's claim was July 23, 1991, which was the first audiogram which showed evidence of loss of hearing. Prior to April 1, 2000, tinnitus was not considered rateable under WCB policy relating to impairment awards. As the worker's date of accident was July 23, 1991, which was prior to April 1, 2000, he was not eligible to receive an impairment award for his tinnitus condition. On November 13, 2013, the worker appealed the decision to Review Office.
On January 14, 2014, Review Office confirmed there was no entitlement to a permanent partial disability ("PPD") award for the worker's hearing loss or tinnitus condition and that the worker's date of accident of 1991 was correct and in keeping with subsection 1(12) of the Act.
Review Office accepted the findings of the WCB's ENT specialist dated September 27, 1991 and August 4, 1995 that the worker's average decibel loss was below the minimum 35 decibels as is required by policy and therefore he was not entitled to a PPD award for his hearing loss.
Review Office also noted that the worker moved outside the province of Manitoba in February 1996 and based on the WCB's hearing loss policy, any changes to the worker's hearing after February 1996 was not considered by the WCB with regards to a PPD award.
Review Office further indicated that the worker did not qualify for a PPD rating for tinnitus as the date of his accident was prior to April 1, 2000. On January 22, 2014, the worker appealed Review Office's decision to the Appeal Commission and a file review 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.
WCB Policy 44.20.50.20.02, Hearing Loss (the “Hearing Loss Policy”) applies to claims arising from accidents between May 29, 1985 and March 31, 2000 inclusive. The Hearing Loss Policy states as follows:
GENERAL INFORMATION
Permanent hearing loss can be caused either by acute acoustic trauma or prolonged exposure to excessive noise. This policy applies to claims arising from long-term exposure to occupational noise that causes hearing loss. Any permanent partial impairment arising from such exposure will be provided for in Policy 44.90.10, Permanent Impairment Rating Schedule.
The Permanent Impairment Rating Schedule applicable to the worker's claim (WCB Policy 44.90.10.02, applicable to all new decisions on accidents occurring on or before March 31, 2000) provides as follows:
Impairment of Hearing
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 ....
Worker’s Position
The worker’s Appeal of Claims Decision form stated that his loss of hearing and associated tinnitus was a gradual ongoing process due to workplace noise exposure both before and after April 1, 2000. It was submitted that to exclude injured workers from an impairment award based on the date of a current WCB Policy that would otherwise compensate them was demeaning, unfair and grossly discriminating, the effect of which was to reduce WCB compensation payouts at the expense of workers. Contrary to the WCB's decisions, it was submitted that workers suffering tinnitus from before April 1, 2000 were more deserving of an impairment award due to having suffered a longer period of time with the workplace related injuries and resulting permanent, life changing disabilities of hearing loss and tinnitus. The panel was therefore asked to find that the worker was entitled to a PPD award.
Analysis
In order for the worker’s appeal to be successful, the panel must find on a balance of probabilities that there is provision under the Act and/or WCB policies for a PPD award in relation to the worker's hearing loss. We are not able to make that finding.
The Permanent Impairment Rating Schedule provides that in order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear. The worker's audiograms indicate that at the time of his last exposure to noxious work-related noise in Manitoba, the worker's hearing loss did not meet the 35 decibel threshold.
The worker was transferred out of Manitoba by his employer in February 1997 (previously identified as February 1996 by Review Office). The specific year is not material to our consideration of this appeal. The last audiogram prior to this transfer was performed on July 13, 1995 and indicated an average hearing loss of 3.75 on the right side and 11.25 on the left. This loss did not warrant a PPD award.
The next audiogram on file is dated October 30, 1998. At this point, the worker would have been out of Manitoba for over one year. The test results indicated an average hearing loss of 7.5 on the right and 15 on the left. This still fell below the threshold for entitlement to a PPD award.
Since the 1998 audiogram, the worker has not been exposed to work-related noise in Manitoba. As such, any further decline in the worker's hearing loss cannot be attributed to his Manitoba employment and is not to be factored into the worker's entitlement for a PPD award under the worker's compensation benefit scheme in Manitoba.
With respect to the worker's claim for tinnitus, the Hearing Loss Policy applicable to the worker's claim makes no provision for tinnitus. Unfortunately, there is no provision in the Act or WCB Policy for a PPD award for tinnitus until April 1, 2000. The panel acknowledges the worker's frustration at being excluded from a tinnitus PPD award based solely on the date of injury, but we have no remedy for him. The worker is only entitled to benefits under the legislation relevant to the time of the worker's injury, and unfortunately, there was no provision for an award for tinnitus which was suffered prior to April 1, 2000. The medical record shows that the worker has been suffering from tinnitus since at least 1991.
We therefore find that the worker is not entitled to a PPD award. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 12th day of May, 2014