The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a permanent partial impairment rating for tinnitus. A file review was held on July 15, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to a permanent partial impairment rating for tinnitus.

Decision

That the worker is not entitled to a permanent partial impairment rating for tinnitus.

Decision: Unanimous

Background

In June 2013, the worker filed a claim with the WCB for noise induced hearing loss. The worker indicated on his hearing loss form that he became aware of a hearing problem two years ago and that his hearing loss came on gradually. The worker provided the WCB with his work history from 1977 to 2005. The worker attributed his hearing loss to his employment in which he was exposed to a variety of loud noises.

Following a review of audiogram results and other information obtained from the worker and his employer, the WCB accepted the claim for noise induced hearing loss on November 14, 2013. The worker was advised that the injury date of his claim was January 18, 1993 based on a hearing test of that date which showed noise induced hearing loss. The worker was also advised that he was entitled to the use of two hearing aids and that he did not qualify for a permanent partial impairment ("PPI") rating as the average loss of hearing loss in both ears did not meet the WCB's minimum level to which hearing loss was considered rateable.

On November 29, 2013 the worker spoke with a WCB adjudicator to discuss whether he was entitled to a PPI award for tinnitus. By letter dated November 29, 2013, the worker was advised that he was not eligible for an impairment award for tinnitus as a rating for tinnitus was only allowed for injuries from accidents on or after April 1, 2000. On December 18, 2013, the worker appealed the decision to Review Office.

On February 27, 2014, Review Office upheld the decision that the worker was not entitled to a PPI rating for tinnitus. Review Office found that the date of accident for the claim had been correctly determined as being January 18, 1993 and that prior to April 1, 2000, tinnitus was not considered rateable under the provisions of WCB policy 44.20.50.20. On April 15, 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.

Subsection 1(12) of the Act provides as follows:

Deemed date of accident re occupational disease

1(12) Where an impairment or loss of earnings of a worker is caused by an occupational disease, the day on which the impairment or loss of earnings began, as determined by the board, is deemed to be the day of the accident.

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, when the initial decision is made on or after October 1, 1995 and a date of notification prior to October 1, 2013. The Hearing Loss Policy states as follows:

A. POLICY

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

...

5. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker will be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board.

It is notable that the Hearing Loss Policy makes no provision for a PPI for tinnitus. The current version of the policy is WCB Policy 44.20.50.20, Noise-Induced Hearing Loss, which is applicable for claims with a date of notification on or after October 1, 2013. The current policy provides for a PPI for tinnitus as follows:

Section 4 dealing with tinnitus only applies to accidents on or after April 1, 2000.

4. Tinnitus is a perception of sound in the absence of an acoustic stimulus. It may be of a buzzing, ringing, rushing, whistling or hissing quality. It may be intermittent or continuous.

The WCB may consider awarding an impairment award for tinnitus when secondary to noise-induced occupational hearing loss and there is a history of 2 or more years of continuous tinnitus.

An impairment rating is provided in accordance with Policy 44.90.10.

Worker’s Position

The worker’s Appeal of Claims Decision form states the following reasons for appeal:

I did not have hearing loss prior to 2000 April 1. I did not have tinnitus prior to 2000 Aril (sic) 1. The hearing test I had done in 1993 in The Pas was for all gov't conservation officer and not due to accident.

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 PPI rating for the worker's tinnitus. We are not able to make that finding.

As noise induced hearing loss occurs gradually over many years, it can be difficult to determine when the impairment began. The date of accident for a hearing loss claim is generally established as of the date of the first audiogram which shows evidence of noise-induced hearing loss. This is based on subsection 1(12) of the Act which provides that the deemed date of accident for an occupational disease claim is the day on which the impairment or loss of earnings began.

The worker's audiogram performed January 18, 1993 demonstrated a 25 dB notch at 3000 and 4000 Hz indicating early noise-induced sensorineural hearing loss. The panel therefore finds that the worker's date of accident was correctly established at January 18, 1993.

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 PPI rating for tinnitus for claims which were established before April 1, 2000. Although the worker states that he did not have tinnitus prior to April 1, 2000, it is the date of the first evidence of hearing loss which is relevant. The panel acknowledges the worker's frustration at being excluded from a tinnitus PPI rating based solely on the date of accident, 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 date of accident, and unfortunately, there was no provision for a rating for tinnitus when the accident date is established prior to April 1, 2000.

We therefore find that the worker is not entitled to a PPI rating for tinnitus. 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 19th day of August, 2014