The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker disagrees with the decisions made by the Workers Compensation Board ("WCB") concerning the amount and effective date of his permanent partial disability award for hearing loss. A file review was held on October 1, 2014 to consider these matters.

Issue

Whether or not the effective date of the worker's permanent partial disability is correct; and

Whether or not the permanent partial disability rating of 6.4% is correct.

Decision

That the effective date of the worker's permanent partial disability is correct; and

That the permanent partial disability rating of 6.4% is correct.

Decision: Unanimous

Background

On March 11, 1996, the worker filed a hearing loss claim with the WCB. The worker reported that he first became aware of a hearing problem in approximately 1987 and that his hearing loss came on gradually. The worker provided the WCB with details of his employment history for the period 1969 to 1992.

Medical information on the worker's claim consisted of audiogram reports dated July 15, 1987 and July 18, 1989. The July 15, 1987 report noted that the worker's hearing loss in both ears appeared to be the result of conditions other than occupational factors.

On April 22, 1996, an otolaryngologist submitted audiogram results dated April 10, 1996, July 18, 1989 and March 24, 1987. He stated that the most likely basis for the worker's low and middle tone hearing loss was likely to have been mumps. He stated "Over the last 10 years there has appeared to have been noise trauma superimposed upon the patient's initial hearing loss, thereby dropping some of the higher frequencies up to 20 decibels."

File records showed that the worker's claim for hearing loss was accepted. In early 1997, the worker was scheduled to undergo further hearing tests but he did not keep his appointment.

On September 29, 2004, the WCB received a report from a hearing aid centre which indicated that the worker had a change in his hearing. The report stated that test results showed that the worker had moderately severe to severe binaural hearing loss and that he required new hearing instruments.

On April 25, 2005, the treating otolaryngologist provided the WCB with audiogram reports dated March 22, 2005, April 10, 1996 and May 24, 1995. The specialist stated:

Audiography shows the patient has almost straight line hearing loss at 60 decibels or slightly worse for all frequencies both for the left and right side. This was compared to audiograms carried out in 1995 and 1996 and this revealed slight deterioration in his hearing. The hearing in 1995 was at 50 decibels and the hearing in 1996 was 60 decibels or better. Also notable is the fact that there has been a drop in his discrimination scores from around 100% before to around 70% now.

On July 28, 2005, the worker underwent a complete audiologic assessment and the results were reviewed by a WCB Ear, Nose and Throat ("ENT") specialist on August 18, 2005. The ENT specialist recommended a permanent partial disability ("PPD") award of 11.3% based on the audiogram results. On September 9, 2005, the WCB advised the worker that he was entitled to a 11.3% PPD for his hearing loss and that the effective date of the award would be July 28, 2005.

In a note to file dated May 25, 2006, the WCB's ENT specialist stated that the audiogram of 1996 was consistent with the audiogram of 2005.

On May 25, 2006, the WCB ENT specialist reviewed audiogram results dated November 26, 1996 and stated that the PPD rating was 6.4%.

On May 26, 2006, the WCB advised the worker that:

Based on the November 26, 1996 test results your impairment rating is 6.4%. You have previously indicated that you were not exposed to work related noise since the date of the test. The impairment award that was previously paid to you is based on the June 28, 2005 test with a rating of 11.3%. As the decline in your hearing between the 1996 and 2005 test is not as a result of work related noise exposure the rating will be reduced to 6.4% and your benefits will be adjusted accordingly.

In response to the worker's request to use July 15,1987 as the effective date of his PPD rating, the WCB advised the worker on May 16, 2014 that the audiogram of November 26, 1996 was the first test that was reliable for impairment rating purposes and that the PPD rating of 6.4% was effective November 26, 1996.

On July 17, 2014, Review Office considered an appeal from the worker as to whether or not the effective date of his PPD award was correct and whether the 6.4% rating was correct. Following review of all file information, Review Office concluded that the effective date of the PPD was correct and the PPD rating of 6.4% was also correct.

Review Office accepted the opinion of the WCB's ENT specialist that the July 15, 1987 audiogram was not acceptable for rating purposes and that the November 26, 1996 audiogram was acceptable. The consultant noted that the July 15, 1987 hearing test results were not typical of noise induced hearing loss.

Review Office indicated that any deterioration in a worker's hearing after they are no longer exposed to loud noise in the workplace is not accepted as compensable by the WCB. Review Office found that the worker had ceased working in a noxious noise workplace in 1992. It was the practice of the WCB to use the earliest audiogram after the noise exposure has stopped to determine entitlement to a PPD award. It concluded that the worker was exposed to noise after 1987 and using the 1996 test results provided the most accurate assessment of the worker's loss related to his occupational noise exposure. Review Office accepted the May 2006 calculations that the worker's PPD rating was 6.4%. It noted that the worker provided no information to dispute the calculations. The deterioration in hearing after 1996 was not compensable. It was correct to base the degree of impairment on the November 1996 audiogram.

On July 28, 2014, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged to consider the worker's appeal.

Reasons

Applicable Legislation

In dealing with this appeal, the appeal panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker’s hearing loss claim was filed in 1996 with an accident date in 1987. Accordingly, his benefits are assessed under the Act as it existed at the date of the accident. The Act at that time provided that payment of compensation for permanent disability (PPD) was provided for under subsection 32(1) of the Act, which read as follows:

Compensation for permanent partial disability

32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five per cent of his average earnings.

For the purpose of calculating a PPD, the WCB Board of Directors has established Policy 44.90.10.02 which incorporates a Permanent Impairment Rating Schedule as Appendix A. A version of this schedule was in effect at the time of the injury and the development of the permanent impairment.

The WCB Board of Directors has also established Policy 44.20.50.20.02 , the Hearing Loss Policy, which deals with accidents arising between May 29, 1985 and March 31, 2000. This policy provides, in part, that:

2. For claims to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half).

Worker's Position

The worker is appealing both the effective date of his PPD award for hearing loss and the rating given to the award. In his written appeal form dated July 28, 2014, he submitted, in part, that:

• the October 15, 1992 audiogram should be used, not the November 26, 1996 audiogram as his employment was terminated in 1992.
  
• the rating should factor in "96 decibel expose combined with a vibrating machine as it is reflected" in his 1992 claim.
• "evidence shows that in the entire juration (sic) of the claim there was never any reference made to actual exposure of noise and what effect 1992 claim...would have on the restriction of "No vibrating machinery" would have on low frequency noise levels."
  
• "assessment of July 15, 1987 should be struck down based on noise level readings were based on noise level readings of an acceptable rate of 70 to 84. Had tests been done at 96 decibels with vibrating background noise the outcome would have been different. There would not have been such emphasis on low frequency noise and sound".
  
• "any references made by the board about the claimant having mumps should be deemed as slanderous in the absententence (sic) of supporting medical reports."
• "evidence shows that assessments made by [WCB ENT specialist] on June 12, 2005 and August 18, 2005 there is a 20 decibel drop in just a few months. However it would be consistent with [1992 claim]. This claim shows carpal tunnel on the claimants (sic) right hand. Severe hearing loss that occurred on the right ear is consistent with the right hand carpal tunnel."
• a 1992 audiogram shows a 25 decibel drop in hearing potential. It also shows a 40% hearing loss in the right ear and 20% hearing loss in the left ear.
  

The worker also provided a written submission in support of his appeal. The submission included 9 exhibits most of which were documents already in the WCB's possession. In Exhibit 2 he submitted:

• the worker was exposed to maximum 97 db recorded on forklift and that exposure at such rates is indicative of the damage to the ears on an extended basis.
• a request that rating be performed by a physician.
• a request that testing be done in normal environments, such as, street level noises or
• group settings while wearing hearing aids.
• a request that consideration be given to WCB Policy 44.90.10.02, page 42 Class IV under subtitles of Verbal Communications.
• a request for an explanation of why the Board side steps the issue on what constitutes low frequency as compared to high frequency noise.

Employer's Position

The employer account has been closed; accordingly the employer did not participate.

Analysis

Issue: Whether the effective date of the worker's permanent partial disability is correct?

The worker submits that the effective date of his PPD award is incorrect. For the worker's appeal to be successful, the panel must find that the effective date of November 26, 1996 is not correct.

In addressing this appeal, the panel must apply the test set out in the Schedule to the Policy, that is, the panel must consider the medical history documented on file and ascertain at what point in time the worker's PPD could be reliably rated. The WCB practice is to use the first reliable audiogram after the noise exposure has stopped to determine the rating for a PPD award. In addition, the WCB does not compensate for deterioration of hearing after a PPD has been rated unless it can be established that the deterioration is due to further exposure to workplace noise. Deterioration due to aging is not considered.

The worker has submitted that the WCB should rely upon the audiogram of October 15, 1992 for his PPD award. The panel is not able to rely upon this audiogram. The panel finds that this audiogram does not clearly demonstrate noise induced hearing loss and is not appropriate for assessing the worker's noise induced hearing loss.

At one point, the worker suggested that the 1987 audiogram ought to be used to establish his PPD award. This is the first audiogram on file. It demonstrated results which were mainly in the lower frequency range and which are not consistent with a noise induced hearing loss. As well, the worker advised that he operated a forklift for 4 hours before the test which is not in accordance with standard hearing test practices. The panel finds that this test is not appropriate for rating the worker's noise induced hearing loss.

The panel also notes that the June 28, 2005 audiogram was initially used by the WCB in calculating the worker's hearing loss. It was later determined that the increase in the worker's hearing loss between 1996 and 2005 was not compensable as the worker was not exposed to workplace noise after 1992.

The panel finds that the November 26, 1996 audiogram is the most suitable audiogram for rating the worker's noise induced hearing loss. The panel relies upon the opinion of the WCB ENT specialist that this is the first audiogram that confirmed the presence of loss in hearing consistent with noise induced hearing loss. The panel finds that this is the best available evidence for rating the worker's noise induced hearing loss PPD award.

The panel notes that the worker submitted that vibration should be included in the calculations for hearing loss. The panel confirms that up to the current time, vibration is not included in the calculations under the hearing loss policy.

The panel finds that the effective date has been correctly established at November 26, 1996. The worker's appeal of this issue is dismissed.

Issue 2: Whether the permanent partial disability rating of 6.4% is correct?

The worker's PPD is rated at 6.4%. The worker submits that the rating is incorrect. For the worker's appeal to be successful, the panel must find that an error was made in the calculation of the worker's PPD award. The panel was not able to make this finding.

In issue 1 above, the panel confirmed that the effective date is properly established as of November 26, 1996, the date of the first audiogram which confirmed the presence of loss in hearing consistent with noise induced hearing loss. The panel has reviewed the formula and calculations employed by the WCB ENT specialist on the Hearing Assessment form dated May 25, 2006 and finds that the formula applied and calculations performed are correct and consistent with WCB policy and practice.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of October, 2014