The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation for noise induced hearing loss ("NIHL") is not acceptable with respect to noise induced hearing loss. A hearing was held on May 15, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 12, 2007, the worker filed a Worker's Claim for Hearing Loss form with the WCB for NIHL that he attributed to his employment as a maintenance worker. The form indicated that the hearing loss came on gradually and that the worker had ringing in both ears. The worker noted that the noise at work was "occasional" and that he wore both plug and muff hearing protection since the beginning of his employment. Outside of work, the worker operated home power tools such as saws, drills and grinders.

In response to the form, the WCB tried to contact the worker to obtain additional information but was unsuccessful. On May 20, 2008, the file was closed pending further contact from the worker.

On July 7, 2011, the worker filed another Worker Hearing Loss Report form. The form again indicated gradual hearing loss in both ears with ringing in the ears. Noise at work was shown to be "occasional" and hearing protection (both plugs and muffs) were used. With respect to

activities outside of work, the form acknowledged snowmobiling/motorcycling, power boating and operation of home power tools.

In response to the form, the WCB again tried to contact the worker but was unable to do so. The file was closed October 24, 2011.

On August 2, 2012, the worker telephoned the WCB to re-open his claim and provided the following information:

• periodically he hears ringing in his right ear when it is really silent or when he goes to sleep. This had been ongoing for approximately 5 years.
• he wears hearing protection when using a skill saw or drill. He has shot a gun but is not a hunter. He is right handed.
• when he became a section worker, this was a louder job. He worked with train engines using hydraulic hammers for putting spikes into rails. He wore hearing protection at all times in the form of plugs and muffs and when he moved to civil maintenance he was provided with custom molded plugs.
• he did not know where his hearing loss came from. It could be due to taking off his hearing protection while talking to his foreman or supervisor.

On September 11, 2012, the WCB advised the worker that they could not accept responsibility for his claim as he wore hearing protection at all times which would greatly reduce the noise below harmful levels (a requirement of 85 decibels). The WCB also considered audiograms provided by his employer (Hearing Conservation Programme dated November 24, 1995) which noted that he had been involved in several non-occupational activities that could have contributed to his hearing loss. These included car racing, motorcycles, snowmobiles, target shooting and the use of power tools, which, in the opinion of the WCB, would be the predominant cause of his hearing loss.

On February 1, 2013, the worker appealed the above decision to Review Office stating that he was exposed to high noise levels and that his employer had record of this. He also stated that he never owned a gun, snowmobile, or a race car.

In a memo to initial adjudication dated February 6, 2013, Review Office indicated that it was premature for it to rule on the worker's appeal. Review Office asked the adjudicator to obtain specific additional information and to decide whether there would be any change to the former decision to deny the claim.

File records showed that the WCB obtained additional information from the worker regarding his non-occupational activities. It also obtained noise level information from the employer and general information pertaining to the use of dual hearing protection and noise reduction ratings of ear muffs and ear plugs.

On May 15, 2013, the WCB advised the worker that there was no change to the previous decision to disallow his claim. The letter stated, in part:

"...in order to meet the WCB criteria for a compensable noise induced hearing loss claim, we would need to establish that you were exposed to noise levels in excess of 119 decibels given that exposure to noise levels below that, with the use of hearing protection, would be less than 85 decibels.

As dual hearing protection was worn consistently throughout your employment, the available information does not establish you would have work related exposure to noise levels at or above 85 decibels for a sufficient period of time to establish a claim for noise induced hearing loss. Therefore, we are unable to determine that your hearing loss is as the result of noise exposure at work..."

On September 19, 2013, the worker appealed the May 15, 2013 decision to Review Office stating that his loss of hearing at work was clearly documented by his employer. On January 16, 2014, the employer's representative submitted to Review Office that the preponderance of credible evidence would not support a relationship between the worker's hearing loss and his employment.

In its decision of February 12, 2014, Review Office referred to WCB legislation, policy and other file information to support that the worker's hearing loss claim was not acceptable. Review Office concluded that the evidence did not establish that the worker was exposed to noxious noise at work for a minimum of two years based upon an average of 85 decibels for 8 hours of exposure on a daily basis. On March 7, 2014, the worker 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 self-represented at the hearing. The worker advised that he had worked for the employer for twenty-six years. He worked in a number of positions and hearing protection was provided but he did not have it on all the time. He often took the hearing protection out to talk with someone, then neglected to put it back in. Also, there were times where he started work right away, then only remembered a half-hour or an hour into the job that he needed hearing protection. So the hearing protection was not consistently utilized.

The worker also noted that in the past, the type of ear plugs (hard, yellow plugs) provided to him were not optimal. He tried to put them in but felt that they were not adequate for the noise levels experienced on the job.

Overall, the worker submitted that his hearing loss was due to working in high noise level areas and he ought to be entitled to compensation for that hearing loss.

Employer's Position

A compensation coordinator appeared on behalf the employer at the hearing. The employer's position was that while the worker would have been exposed to various noise levels in the workplace during his employment, he wore hearing protection which would have reduced the exposure to less than the 85 decibel threshold. It was also noted there was vacillation in the worker's statements on file and it was felt that the worker had been less than forthright about his non-work related noise exposure. The employer's position was that the preponderance of credible evidence did not, on a balance of probabilities, support a relationship between the worker's hearing loss and his employment.

Analysis

The issue in this appeal is claim acceptability. 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 high 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's hearing loss was due to workplace noise exposure, and therefore his claim is not acceptable.

The worker first got his hearing tested at work on November 24, 1995. It was then that the worker became aware that there had been a shift in his hearing and that he had some loss of hearing. A review of the worker's audiogram results from 1995 to 2006 indicates that over that eleven year period, the worker's hearing loss did not worsen much. The panel finds that this would indicate that although the worker was exposed to noxious levels of noise post-1995, the hearing protection used by him was effective in preventing any further significant decline in hearing. This is supported by the worker's evidence that since he got his ears tested in 1995 and discovered he was experiencing some hearing loss, he started to wear hearing protection regularly. It was also the worker's evidence that since moving to another department in February 1998, he was provided with custom molded ear plugs and ear muffs, which presumably provided superior noise protection.

The panel therefore focused its deliberations on the workplace exposures experienced by the worker prior to 1995.

When the worker started with the employer in June 1988, he was initially employed as a cleaning attendant at a recreational facility, a hall and an office building. The worker described the noise levels at these locations and we find that these positions did not expose the worker to any significant degree of continual noxious noise.

The most significant exposure to noise pre-1995 was while the worker performed railway repairs from August 9 to October 22, 1993. In this position, the worker's job duties primarily involved changing railway ties. A machine with a two-cylinder engine would be used to pull the ties out. The worker likened the noise level to being a little bit louder than a lawnmower. He would use this machine for about five hours per day to replace approximately 30 to 50 ties. The worker performed these duties for three months. With respect to hearing protection, the worker acknowledged that there were ear plugs and muffs available, but was unclear about the extent to which the hearing protection was used. When asked what percentage of the time he wore earmuffs, the worker responded: "I couldn't tell you. I don't know." He later indicated: "At times we did, and at times we didn't." Based on this evidence, the panel finds that the worker wore hearing protection at least part of the time.

A noise survey provided by the employer listed the equipment used to perform maintenance to the railway. The noise level generated by the various items of equipment ranged from 84 dB to 105 dB. The tie replacer machine described by the worker generated between 92 dB to 100 dB, depending on where the worker was positioned.

In order to qualify under the Policy for work-related NIHL, a worker must be 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 and for every increase in noise level of 3 decibels, the required daily exposure time should be reduced by half. Although the noise emitted by the tie machine was above the 85 dB threshold, the worker would have been wearing hearing protection, at least part of the time, which would have reduced the noise exposure. Further, the worker was only exposed to the noise for a maximum of five hours per day, for a three month period. On a balance of probabilities, the panel finds that the worker's exposure to noise while performing the railway work was not sufficient to satisfy the noise exposure requirements set out in the Policy and we therefore find that he did not suffer hearing loss as a result of performing these duties.

In April 1994, the worker moved to another position where he was responsible for pumping pits and draining fire hydrants. The job involved using a hydraulic pump which emitted a constant humming noise, and an electric ratchet to open valves. The panel finds that the noise exposure in this job position was also insufficient to found a claim for work-related NIHL. The only significant noise generator was the hydraulic pump. The panel was not provided with specific noise measurements for a hydraulic pump, but the noise survey from the employer indicates that an air powered water pump generates a noise level of 92 dB. Even if we were to assume that the noise level was comparable, the worker would not have been constantly exposed to this noise for the amount of time required by the Policy, and would have been wearing hearing protection, at least part of the time. The requirements for a minimum of two years exposure for 8 hours daily would not be met. We are therefore not satisfied on a balance of probabilities that there was sufficient long-term exposure to establish a claim.

The panel also notes that the audiogram results indicate that the worker's hearing loss is significantly worse on the left than the right. The workplace noise exposures described by the worker all related to general ambient noise, and were therefore bilateral exposures. If in fact noise from the workplace was the cause of the worker's hearing loss, the panel would not have expected there to be such a significant difference between the two sides.

Overall, the panel finds that the worker's occupational noise exposures were not sufficient to satisfy the requirements set out in the Policy and we are therefore unable to find that the worker's hearing loss occurred at work. Accordingly, we find that the claim is not acceptable. 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