The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding his permanent partial impairment rating with respect to his claim for noise induced hearing loss. A file review was held on May 13, 2014 to consider the matter.

Issue

Whether or not the worker's permanent impairment rating has been correctly established; and

Whether or not the permanent partial impairment award has been correctly calculated.

Decision

That the worker's permanent impairment rating has been correctly established; and

That the permanent partial impairment award has been correctly calculated.

Decision: Unanimous

Background

In September 2011, the worker filed a claim with the WCB for noise induced hearing loss. His claim for compensation was initially denied by the WCB but the decision was overturned by the Appeal Commission and the worker's claim for noise induced hearing loss was accepted. Specific details regarding the appeal panel's decision may be found at Appeal Commission Decision No. 114/13 dated September 13, 2013.

Following the Appeal Commission's decision, the WCB created a new hearing loss claim with the same information and an injury date of July 25, 2006 was established.

On November 21, 2013, the WCB determined that the worker was entitled to a permanent partial impairment ("PPI") rating of 3% with respect to his hearing loss difficulties and an award was issued to the worker in the amount of $3,090.00. These decisions were based on the WCB's impairment rating schedule and the opinion expressed by a WCB ear, nose and throat specialist

("ENT") consultant who had reviewed 2006 audiological information on the worker's claim file. The ENT consultant stated that the sum of the hearing loss in the worker's right ear was 150 decibels while the sum of the hearing loss in his left ear was 115 decibels. On January 11, 2014, the worker appealed the amount of his PPI rating and the monetary award to Review Office.

On March 10, 2014, Review Office confirmed that the worker's impairment rating and the corresponding financial award were correctly calculated in accordance with WCB policy and The Workers Compensation Act (the "Act"). On March 20, 2014, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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.

Payment of compensation for an impairment is provided for under section 38 of the Act, which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 30%: $1,030. for each full 1% of impairment;

(b) 30% or greater: $30,900. plus $1,240. for each full 1% of impairment in excess of 30%.

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10

Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states

1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the Executive or Senior Director responsible subject to the normal appeal process.

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A.

With respect to impairment of hearing, the schedule attached as Appendix A (the "Schedule") provides as follows under the heading General Information:

A. General Information

Calculating impairment due to loss of hearing involves three steps:

1. Calculating the percentage of hearing loss in each ear.

2. Calculating the combined percentage of hearing loss.

3. Converting the loss of hearing to an impairment of the whole person.

Worker’s Position

The worker's Appeal of Claim Decision form submitted that the decision by the WCB was wrong and illogical. In an earlier submission, the worker indicated that he completely disagreed with the amount of compensation that was assessed to be paid to him due to the work-related hearing loss that he suffered. The worker described how much the hearing loss impacted his life and his health. He often experienced sharp shooting pain in his ear and every step that he took was followed by a painful vibration in his cranium which upset his mental well-being and distorted his balance. The pain also affected his ability to eat and swallow. Walking was difficult due to concern about the extreme shooting pain he often experienced when stepping down.

The worker could not understand why the WCB's reasons for calculating his PPI award seemed to have nothing to do with his situation. He asked that his case be reviewed and that he be given an explanation as to how the WCB decided upon the compensation amount paid to him.

Analysis

The issue before the panel is whether or not the worker's PPI rating has been correctly established and whether or not the PPI award has been correctly calculated. In order for the worker's appeal to succeed, the panel must find that the Act or Policy was incorrectly applied in his case. We are not able to make that finding.

The panel acknowledges the worker's submission that the reasons given in the March 10, 2014 Review Office decision could not be understood by him and looked "absolutely illogical." It is true that the methods set out in the Act and WCB Policy for establishing a PPI rating and PPI award are complex and difficult to understand. We have, however, read the reasons given by Review Office and find them to be correct. We agree that the explanation is technical and difficult to read, but we feel that is because of the complexity of the process rather than an indication of incorrect reasoning on the part of the WCB.

PPI Rating

With respect to the PPI rating, as outlined earlier, calculating impairment due to loss of hearing involves three steps:

1. Calculating the percentage of hearing loss in each ear.

2. Calculating the combined percentage of hearing loss.

3. Converting the loss of hearing to an impairment of the whole person.

Step 1: In this case, the percentage of hearing loss in each ear was calculated by the WCB ENT consultant from the audiogram reading at 500 hertz, 1000 hertz, 2000 hertz and 3000 hertz. These are added, then divided by 4 arriving at the average loss in each ear of 37.5 decibels for the right ear and 28.75 decibels for the left ear. Based on tables contained in the Schedule, the ENT consultant then determined the percentage of hearing loss and impairment was 18.8 in the right ear and 5.6 on the left. The ENT consultant is a medical doctor specializing in hearing loss and we accept his calculations in this regard.

Step 2: The combined percentage of hearing loss was then added together using a technical formula to determine binaural hearing impairment. The formula is set out in the Schedule and reads as follows: "Total % = ([5 x % hearing impairment in better ear] + % hearing impairment in poorer ear) /6." This is a very technical formula which is difficult to comprehend, but the panel understands that what it is intended to do is to convert the two separate readings for the right and left ear into one single combined hearing impairment percentage for both ears. In this case, the result was to establish a binaural hearing loss (i.e. combined hearing loss related to both ears) of 7.8%. This means that the worker had an overall reduction in his hearing of 7.8%.

Step 3: The binaural hearing loss of 7.8% was then converted to a whole person impairment percentage. Hearing loss is only one component of overall bodily function. The Schedule provides a table which converts hearing impairment to whole person impairment. By way of example, complete deafness as a result of sudden and complete traumatic loss of hearing would be rated at 60% impairment of the whole person. According to the table, the worker's hearing impairment of 7.8% converted to a whole person impairment of 3%.

The panel finds that the Policy and Schedule was correctly applied to arrive at a total PPI rating of 3%. While the worker's submission referred to the painful effects of his injury on his life and health, unfortunately, the Policy does not provide for any compensation for pain and suffering. The calculation of the PPI rating is based solely on the loss of hearing as measured by audiogram.

The panel therefore finds that the worker's PPI rating of 3% has been correctly established.

PPI Award

The calculation of a PPI award is governed by subsection 38(2) of the Act. For PPI ratings up to 30%, subsection 38(2)(a) provides that the worker is entitled to $1,030 for each full 1% of impairment.

In this case, the worker's PPI rating of 3% multiplied by $1,030 results in a PPI award of $3,090. This is the PPI award which was previously determined by the WCB. The panel therefore finds that the worker's PPI award has been correctly calculated.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of July, 2014