The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions made by the Workers Compensation Board ("WCB") with respect to his claim for hearing loss. A hearing was held on May 20, 2014 to consider these matters.

Issue

Whether or not the claim is acceptable for noise induced hearing loss; and

Whether or not the worker is entitled to a hearing aid for his right ear.

Decision

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

That the worker is not entitled to a hearing aid for his right ear.

Decision: Unanimous

Background

The worker filed a claim with the WCB for noise induced hearing loss ("NIHL") that he attributed to his employment during the years 1967 to May 1994.

In May and June 2005, the worker provided the WCB with information related to his noise exposure at work. This included exposure to gunfire, firearms training, loud music at rock concerts, motorcycle and traffic noises.

On September 29, 2005, the WCB accepted the worker's claim as it was able to establish that the worker had suffered NIHL at work. Based on audiogram results and consultation with a WCB ear, nose and throat ("ENT") consultant, the WCB determined that the worker was entitled to the costs associated with a left hearing aid but that he did not qualify for a permanent partial impairment rating as his hearing loss was not rateable.

In a report from a hearing facility dated September 16, 2010, it was indicated that the worker required replacement of his left hearing aid. The report also stated that the worker required a right hearing aid as he incurred a significant drop of hearing in his right ear since 2005.

On September 29, 2010, the WCB advised the worker that he was entitled to replacement of his left hearing aid but was not entitled to a right hearing aid. The WCB's position was that the deterioration of hearing in the worker's right ear was related to natural aging, rather than the result of employment related NIHL.

On June 5, 2013, the worker advised the WCB that he had undergone further testing and that his right ear hearing had deteriorated and that his left hearing loss was stable. The audiologist who did the testing believed that the deterioration was from his past noise exposure and not to another cause.

In a decision dated July 12, 2013, the worker was advised that he was not entitled to coverage of a right hearing aid based on the opinion expressed by a WCB ENT consultant dated July 4, 2013.

On August 21, 2013, the WCB received a report from an audiologist dated April 30, 2013. The audiologist referred to an apparent notch in the May 2, 2005 hearing test results and stated "His loss in both ears is most likely due to noise exposure while employed with [the employer] since he has not been exposed to any noxious noise since 1994." The audiologist further stated:

By 2008, right ear "notch" at 4K Hz dropped to moderate loss (50 dB HL): which is within test re-test variability from results in 2005. No significant drop in hearing from 2010 to 2013.

His decrease in hearing thresholds has probably been due to natural aging. Once hearing is damaged, it is easily affected by natural aging and or any further noise exposure.

The argument is that it is highly possible [the worker's] hearing loss in his right ear, which was documented May 2, 2005, would not be to this degree if he did not already have damage due to noise exposure from his employment with...."

On September 26, 2013, the Worker Advisor Office requested reconsideration of the WCB's decision to deny responsibility for the worker's right hearing aid. The worker advisor stated:

In accordance with these policies, we submit [the worker] is entitled to a hearing aid because he has confirmed bilateral hearing loss which the WCB accepted in relation to his occupational exposure to noise. While the WCB concluded the current need for a second hearing aid is solely due to age-related loss, this position is contradicted by the very fact that [the worker's] injury only became apparent well after his retirement when his noise related loss was compounded with the effects of time. His audiologist has recommended the use of a hearing aid for his right ear to minimize the impact of his current hearing loss, which we submit is a combined effect of his compensable injury and a natural effect of time.

On November 8, 2013, Review Office wrote the worker and the Worker Advisor Office to advise that it was expanding the issue under appeal to include whether the claim is acceptable. This was based on information from the employer's representative and additional medical notes dated September 7 and 27, 2001.

On November 14, 2013, the Worker Advisor Office provided an additional submission to Review Office which stated:

We submit the evidence on file supports the acceptance of [the worker's] claim for bilateral noise induced hearing loss. He was routinely exposed to extreme sound levels without hearing protection while in the course of his employment, which - according to both his audiologists, and the WCB's medical advisor - likely resulted in noise-induced hearing loss.

In addition, as argued in our prior submission, it is our position [the worker] is entitled to hearing aids for both his right and left ears because the provision of this medical aid is supported by the applicable WCB policy. While his degree of hearing impairment has increased since his retirement from (the employer), we submit the need for hearing amplification is due the (sic) compensable noise-induced hearing loss combined with the effects of time.

On November 15, 2013, Review Office asked the WCB ENT consultant to review the worker's file and respond to four questions related to the worker's hearing loss. The ENT's response dated January 13, 2014 was referred to the Worker Advisor Office for comment. A response from the Worker Advisor Office is on file dated January 29, 2014.

On February 10, 2014, Review Office determined that the worker's claim was acceptable for bilateral NIHL but that the worker was not entitled to a right hearing aid.

Review Office stated that although the worker described times when he was potentially exposed through his 27 years of employment to noxious noise levels, these levels did not meet the decibel level or sustained time required to induce hearing loss. As it was unable to confirm exposure to meet the requirements under the hearing loss policy, the worker's claim was to be adjudicated using the principles of "arising out of and in the course of employment."

Review Office referred to the events that occurred on March 14, 1981 when the worker was exposed to sudden levels of noxious noise (above 140 decibels). It stated that the one-time noxious noise exposure could lead to permanent hearing loss. Review Office found that the worker's claim was acceptable as an event arising out of and in the course of employment as a traumatic accident occurring on March 14, 1981 in which the worker suffered bilateral NIHL.

With respect to the right hearing aid, Review Office noted that the worker was exposed to noxious noise in 1981 and the first evidence of loss was documented 24 years later. In the eight years since the first audiogram, the worker's hearing loss in his left ear had remained stable and he experienced an appreciable loss in his right ear. As there was no further reduction in the worker's left ear since 2005, but documented reduction in the right ear, the right ear reduction was not related to the compensable accident. With no causal relationship between the compensable accident and the reduction in the right ear, the recent requirement for a right ear hearing aid was not considered compensable.

On February 25, 2012, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

WCB Policy 44.20.50.20.01, Hearing Loss (the “Policy”) sets out guidelines related to claims for hearing loss arising from long-term exposure to occupational noise. The Policy states in part that:

2. Claims for long-term exposure to noxious noise may be considered and paid on the basis of a claimant’s exposure with employers who are or had been registered in Manitoba.

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 assisted by a worker advisor at the hearing. It was submitted that over the worker's career with the employer, he was routinely exposed to many different examples of extreme noise, including noise from traffic, motorcycles, bars, nightclubs, sporting events, concerts, and firearms. For most of these exposures, the worker did not wear any hearing protection. It was submitted that while it was difficult to fit the worker's experience into the requirements set out in the WCB's policies, the worker's exposure was within the bounds of probability to accept the claim for NIHL.

It was the worker's position that his present hearing loss was the result of exposure to excessive noise during his course of employment with the employer, consisting of a combination of long-term exposures and acute exposures, and in addition to that, the subsequent effects of aging on top of the worker's already incurred NIHL. WCB policy provided entitlement to a hearing aid: "when a claim is accepted for noise-induced hearing loss and when a specialist recommends a hearing aid." It was submitted that this criteria was met and that the worker was therefore entitled to a hearing aid for the right ear.

In the alternative, it was submitted that there was NIHL that was caused by work exposure, but was made worse with the effects of aging. This was still the WCB's responsibility because the legislation did not differentiate whether it was a severe loss or a minor loss. There simply had to be a work-related NIHL.

Finally, it was submitted that regardless of whether or not responsibility was accepted for the right ear loss, the injury to the left ear was sufficiently significant that, under the Medical Aid Policy, the worker should be entitled to a right ear hearing aid because the left ear was so impaired that the worker needed two hearing aids to allow him to properly function.

Employer's Position

A compensation coordinator appeared on behalf of the employer at the hearing. The employer's position was that the WCB's position was well founded based on the evidence. It was noted, however, that the audiologist's report of April 30, 2013 had limited commentary by the WCB ENT consultant and it was suggested that further clarification may be useful to obtain. Generally speaking, the employer advised that its practice was to rely on the WCB and its ENT consultant's expertise in assessing hearing loss claims and it was submitted that based on the evidence which was presently available, the ENT consultant's opinion that the worker's hearing loss and need for a right ear hearing aid is not related to the worker's occupational noise exposure should be accepted as valid.

Analysis

The issues in this appeal are whether or not the claim is acceptable for NIHL and whether or not the worker is entitled to a hearing aid for his right ear. There are two ways in which a worker may sustain compensable NIHL as a result of an accident at work. The first is an acute acoustic trauma. This involves an instantaneous NIHL resulting from a single exposure at close range. The other way a worker may sustain compensable NIHL is by long-term to exposure to noxious levels of occupational noise. In the present case, the worker already has an accepted claim for NIHL caused by an acute acoustic event which occurred on March 14, 1981 and as a result of which he was provided with a hearing aid for the left ear. In this appeal, the panel must decide whether the worker also has an acceptable claim for NIHL caused by long term exposure to occupational noise. In order for the worker’s appeal to be successful, the panel must find that during the course of his employment with the accident employer, the worker sustained NIHL due to exposure to the levels of noxious noise as set out in the Policy. On a balance of probabilities, we find that the evidence is not sufficient to establish that the worker suffered NIHL caused by long-term workplace noise exposure, and accordingly his claim is not acceptable and he is not entitled to a hearing aid for the right ear.

The Policy provides that in order to be satisfied that a worker's hearing loss occurred at work, the worker must have been 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. This is the threshold that must be met.

At the hearing, the worker described the various types of noise exposure he experienced during his career. His first job was in sheet metal assembly where he performed riveting work. He worked there for one year, before returning to school for a year. The riveting work was very loud and information submitted by the worker advisor suggested that the noise generated by a pneumatic riveter is 125 decibels. No hearing protection was used back then. The worker would perform riveting for about seven hours one day, then spend the next day and a half assembling. Although there was exposure to noxious noise at this early stage in the worker's career, he only worked at this position for a limited time, the noise was not continuous and there is no indication that he suffered from any symptoms of hearing loss at that time. We find that the evidence is insufficient to find that the worker suffered NIHL as a result of this employment.

In 1967, the worker was hired by the accident employer and he held several different positions during his twenty seven years of employment. For the first two years, he was assigned to a walking route and spent a considerable part of his day walking around downtown Winnipeg. Although there is continual ambient traffic noise, we do not find that this noise would be sufficiently loud so as to satisfy the threshold set out in the Policy.

The worker's next assignments involved transportation via a motorcycle and a motor vehicle equipped with a siren. The worker's evidence was that he rode a motorcycle for approximately one year, after which time he was transferred to a car. The panel finds that although the worker may have been occasionally exposed to high levels of noise, for example, when the siren was activated, there was not a continual exposure to noise for 8 hours on a daily basis. We therefore find that the threshold has not been met with regard to these assignments.

From 1973 to 1980, the worker was assigned to job duties which required him to frequently spend time at rock concerts, sporting events and nightclubs, during which time he would be exposed to high levels of noxious noise. The panel has considered the exposures as described by the worker, and we find that the threshold set out in the Policy has not been met. The sporting events may involve sporadic bursts of loud applause, but this would not be on a continuous basis. The concerts would involve longer periods of sustained loud noise, but these events would only occur approximately once per month. While the panel accepts that due to the noise levels the worker may have experienced a threshold shift which temporarily caused impaired hearing or ringing in his ears, this would resolve after a recovery period away from the excessive noise. Similarly, spending hours in a nightclub or bar may cause threshold shift in hearing, but this would only be a temporary effect. The exposure was not sufficiently long or regular to qualify under the Policy.

The worker also referenced firearms training in which he participated on an annual basis. Given the worker's evidence that hearing protection was always utilized during this training, we find that the worker's hearing loss cannot be attributed to this noise exposure. At most, we find that there would only be a temporary threshold shift in hearing.

As a result of his claim for acute acoustic trauma, the worker was provided with a hearing aid for the left ear. At the time of initial assessment in 2005, a hearing aid for the right ear was not required. Between the period 2005 to 2010, the worker experienced a significant drop in his hearing and by September 2010, a right hearing aid was recommended. As the worker had been retired from employment and was removed from all occupational noise exposure since 1994, the drop in hearing on the right side cannot be attributed to work.

We have considered the worker advisor's submission regarding entitlement to a right hearing aid as a form of Medical Aid consequentially required as a result of the compensable left sided hearing loss. The panel does not accept the argument as the evidence does not establish that reduced hearing on the left side either causes or contributes to deterioration of hearing on the right side.

The panel has also considered the worker advisor's submission that the Policy provides entitlement to a hearing aid where a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid. We note that the Policy only applies to claims arising from long-term exposure to occupational noise. As outlined above, the panel finds that the worker did not suffer NIHL from prolonged exposure. His claim for bilateral NIHL is limited to injury from the acute incident of March 1981. As such, the Policy does not apply to the worker's NIHL and does not create entitlement to a hearing aid for the right ear.

Overall, while the worker's various job duties over time involved sporadic exposures to excessive amounts of noise, we are unable to find a prolonged exposure to noxious noise which meets the threshold set out in the Policy. As such, we find that the worker's claim for NIHL related to long-term to exposure to occupational noise is not acceptable and he is not entitled to a hearing aid for his right ear.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 8th day of July, 2014