The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his hearing loss difficulties were not related to his occupation and therefore his claim for noise induced hearing loss was not acceptable. A hearing was held on October 21, 2014 to consider the matter.

Issue

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

Decision

That the claim for noise induced hearing loss is not acceptable.

Decision: Unanimous

Background

On December 11, 2012, the worker filed a Worker Hearing Loss Report in which he stated that he first became aware of a hearing problem in September 2006. He noted that his hearing loss came on gradually and that he reported it to his employer in September 2006. The worker provided the WCB with information related to his employment history from 1976 through to the present.

On December 20, 2012, a WCB adjudicator contacted the worker for additional information related to his hearing loss. In answer to the questions of the adjudicator, the worker indicated that he was born and raised on a farm and that he would help out on the farm as needed. He hunted between the ages of 16 to 18 and is left handed. He has not hunted or used a firearm since. The worker indicated that in 1976-1977, he worked as a farm equipment mechanic and did not wear hearing protection. In the period 1979-1989, he worked as a truck mechanic. In that position, he wore hearing protection whenever the noise was unbearable. From 1989-1994, he worked as a heavy duty mechanic and was exposed to shop noise while working on large machinery. He did not wear hearing protection on a constant basis in that position.

The worker indicated that he currently works as a heavy-duty equipment instructor. In 2010, his department moved to a new facility. The worker described this as the noisiest environment in which he had ever worked. A constantly running HVAC industrial heating system produces noise at 76dB without any additional shop noise. The general shop noise is the result of use of impact wrenches, students pounding and striking metal, use of air-blowing guns and engines running. Hearing protection is worn when using noisy equipment but not consistently as there could not be miscommunication between teacher and students. In the class environment, the worker noted he was also exposed to the HVAC noise.

On March 13, 2014, the WCB advised the worker that no responsibility would be accepted for his hearing loss claim. The adjudicator noted the threshold for acceptance of a claim for noise induced hearing loss, and went on to note that while the WCB was able to confirm the worker's employment, the medical information showed that he did not require a hearing aid in his left ear. The worker’s hearing loss in his right ear could be explained on the basis of being a left-handed firearm user. Further, the adjudicator noted that the worker was exposed to a blast that occurred in his workplace in the 1980s and his right ear was affected, but that WCB did not have record of a work-related claim. The WCB attempted to obtain medical information from the facility the worker attended at that time; however, any records of this attendance were not retained.

On April 2, 2014, the worker appealed the decision to Review Office. The WCB Review Officer noted, in Claim Notes dated May 1, 2014 that he spoke with the co-worker from the 1980s identified in the worker's submission. The co-worker remembered working with the worker at that time and recalled when the oxygen line blew on the welding torch. He was about 25 feet away and the worker was within 5 to 10 feet. Others were present when this occurred. The explosion was loud and they continued to work afterwards. He did not remember anyone requiring medical attention. The worker told him that he could not hear for the rest of the day when the hose blew.

On May 2, 2014, Review Office determined that the file evidence did not support the worker had noise induced hearing loss ("NIHL") related to noxious noise exposure at work. In making its decision, Review Office referenced the WCB’s Hearing Loss Policy and concluded that the worker had not met the threshold set by the policy. Review Office also noted the worker’s exposure to a loud blast sometime in the 1980s and found that the incident, as recalled by the worker and the co-worker occurred approximately 30 years ago. Review Office noted that the worker had trouble hearing the day of the explosion and his hearing went back to normal. There were no records to establish that the worker sought medical attention and no claim was filed with the WCB in respect of the incident.

On June 6, 2014, Review Office advised the worker that the additional information he submitted on June 4, 2014 did not constitute evidence for reconsideration of its prior decision. Review Office advised the worker that the medical information on file does indicate he has hearing loss; however, he had not been exposed to sufficient noxious noise levels at work to attribute his hearing loss to his occupation.

On August 1, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The issue for determination is whether the worker’s claim for noise induced hearing loss is acceptable.

Applicable Legislation and Policy

In considering this appeal, the panel is 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.

Claims for hearing loss due to exposure to noise in the workplace are addressed in WCB Policy 44.20.50.20, Noise-Induced Hearing Loss. The Policy states that noise induced hearing loss occurs gradually and may not involve a loss of earnings. The Policy notes that not all hearing loss is caused by exposure to noise at work and sets the threshold for acceptance of a NIHL claim by the WCB as exposure to hazardous 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.

Worker’s Position

The worker represented himself at the hearing. The worker’s position is that his hearing loss is the result of working in a constantly noisy workplace environment and that his hearing loss in his right ear is worse than in the left ear as a result of exposure to an oxygen line burst on an acetylene torch he was holding, which occurred in the 1980s.

In his submission, he reviewed with the panel photographs he had taken of his workplace as well as a video clip he took in his workplace, all provided to the panel in advance of the hearing. He also referenced documents he had provided in advance with respect to acoustic and noise control issues in his workplace, as well as noise survey results taken in the workplace in 2010.

With respect to the oxygen line burst, the worker pointed out that a co-worker at that time has confirmed that the incident occurred as the worker described and that the worker complained of hearing loss the day of that incident. The worker noted that the medical records have not been retained from that time but that does not mean those records did not exist.

The worker confirmed that he uses hearing protection at all times in his current workplace. He described the protection used as “musician’s ear plugs” that allow voices to be heard but screen out other sounds; as well, he noted that he wears headset hearing protection when engines are running and noisy tools, like impact guns are in use.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for this panel to determine is whether the worker’s claim for hearing loss is acceptable. In order to find the claim acceptable, the panel must find, on a balance of probabilities that the worker's hearing loss arose out of and in the course of his employment.

There is no question that the worker has experienced hearing loss. The evidence establishes that the worker has bilateral asymmetrical noise induced hearing loss with the right ear being worse. A hearing aid is required for the worker’s right ear, but not for his left ear.

The WCB ENT consultant noted that the worker’s past use of a firearm could explain the asymmetrical character of the worker’s hearing loss. Right ear noise induced hearing loss can be the result of left-handed firearm use, although the ENT consultant also noted the possibility that there could be an occupational explanation for the increased hearing loss in the right ear.

The medical evidence on file suggests that the worker had signs of NIHL as early as 2006, but not every instance of hearing loss is caused by exposure to noise at work. The WCB Hearing Loss Policy sets out the threshold for when the WCB will be satisfied that hearing loss occurred at work. The policy sets out that in order for the claim to be acceptable, the evidence must establish that “a worker was exposed to hazardous 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.” The panel is bound by this policy in consideration of this claim.

The evidence before the panel is that the worker currently works in a noisy environment. Results from a November 2010 noise survey indicate exposure to approximately 74dBA in the heavy-duty shop and approximately 56dBA in the classroom. In each case, the readings were taken with only the HVAC system running and no other equipment or engines in operation. The panel also considered evidence of average shop and classroom noise levels sampled April 3, 2012. These indicate average noise levels at the time of the sample of 71dBA in the heavy-duty shop and 55dBA in the worker’s classroom.

The worker, in responding to questions from the panel, confirmed that he spends no more than 60% of each workday in the noisy shop environment, with the balance of the workday spent in the classroom. The worker also confirmed that his teaching year consists of five 8-week sessions between September and June each year. He does not work during July and August, except for setting up for the new school year in the last week of August each year. We note that the worker confirmed he is consistent in using hearing protection in the shop area, thus reducing his exposure to the shop noise.

The evidence relating to the incident in the 1980s in which the worker was in close proximity to an oxygen line on an acetylene torch when the line burst does not support a finding of NIHL arising out of and in the course of his employment. The worker himself noted that he recalls some hearing loss the day of that incident but not afterwards. Further, there is no other evidence to support any long-term impact arising out of that incident.

The worker did not provide any other workplace related explanation that would account for the evidence of asymmetrical hearing loss, with greater loss in his right ear than in his left.

He did confirm his use of a firearm in his late teens and that he hunted with friends who were also using firearms in a group and without any hearing protection.

Having considered the evidence before us of the worker's exposure history, the panel finds on a balance of probabilities that the workplace exposures identified by the worker did not meet the WCB policy threshold of two years of continuous exposure, at 8 hours per day, to levels of at least 85 decibels or logarithmic equivalent.

Further, the medical evidence of asymmetrical hearing loss balanced with the evidence of the circumstances and environment in which the worker is employed does not support a finding, on a balance of probabilities, that the worker’s noise induced hearing loss is employment related.

For the reasons noted above, we find that the worker’s claim for noise-induced hearing loss is not acceptable.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck, - Presiding Officer

Signed at Winnipeg this 17th day of November, 2014