Decision #155/14 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny his claim for noise induced hearing loss. A hearing was held on November 3, 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 1, 2011, the worker filed a claim with the WCB for hearing loss difficulties. The worker reported that his hearing loss came on gradually and that it significantly worsened within the last two years. The worker said he reported his hearing loss difficulties to his employer in December 2011. The worker indicated that the noise at work was continuous and that he had worn hearing protection over the last two and a half years. The worker attributed his hearing loss to employment with two firms during the period 1994 to the present.

In a decision letter to the worker dated January 23, 2013, the WCB adjudicator noted that to accept a claim for hearing loss, certain requirements had to be met which included the following:

  • Confirmation of employment and noise exposure in a covered industry in the province of Manitoba.
  • Noise exposure of at least 85 decibels for eight hours per day over a two year period.
  • Medical information confirming noise induced hearing loss.

The adjudicator noted that noise level test results from the worker's employer showed that the average noise level in the workplace that he was relating his hearing loss to was 74.4 decibels and therefore there was insufficient evidence to support that his hearing loss was the result of work related noise exposure. It was also suggested to the worker that he contact the compensation board in Ontario as the worker claimed that he was exposed to loud noise while working in that province.

On April 11, 2013, the worker was advised that the WCB considered the additional information he provided and that no change could be made to the decision of January 23, 2013. The WCB was of the opinion that there was still insufficient evidence to support that his hearing loss was the result of noise exposure at his employment.

On November 6, 2013, the WCB received the worker's appeal regarding the decision made on January 23, 2013. The worker contended that the noise level study used by the WCB to deny his claim was flawed in its methodology. The worker indicated that he took his own noise level measurements and the noise levels on average ranged from 83 to as high as 109 decibels in different areas of the workspace.

The worker's appeal submission was shared with the employer for comment. On December 3, 2013, the employer indicated that they agreed with the WCB's decision of January 23, 2013.

Prior to considering the worker's appeal, Review Office obtained additional information from the worker's employer consisting of noise levels from the manufacturer, other noise level tests completed and the provision of headsets to workers. This information was sent to the worker and his comments to Review Office are on file dated March 26, 2014.

On April 1, 2014, Review Office determined that the worker's claim was not acceptable. Review Office stated in its decision that the employer's January 18, 2010 report was in keeping with the results of the following noise level assessments:

  • the inter-noise 96 Noise Levels and Communications on the workplace report.
  • noise measurements taken by a fleet structure engineer dated January 12, 2012.
  • information obtained from the manufacturer regarding noise on the machine models the worker works on.

Review Office referred to email correspondence from the employer dated January 22, 2013 regarding the January 18 noise assessment report. Based on the weight of evidence, Review Office concluded that it could not establish that the worker was exposed to levels of noxious noise and preferred to place weight on the multiple independent investigations which show consistent results below an average of 85 decibels.

On April 11, 2014, the Appeal Commission received the worker's appeal regarding Review Office's decision of April 1, 2014 and a hearing was arranged.

Reasons

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.

Where there is a claim for hearing loss due to exposure to noise in the workplace WCB Policy 44.20.50.20.01, Hearing Loss ("the Policy") sets out the criteria for acceptance of such a claim. 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 noise induced hearing loss (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 was self-represented. He was accompanied by a union representative who serves as the co-chair of an occupational health and safety committee.

At the commencement of the hearing, the worker sought to enter in evidence a hand written letter from a professional engineer. The panel accepted the letter as Exhibit #1 to the proceedings. In the letter the engineer questions aspects of the noise assessment survey conducted by the employer.

With respect to the parties participating in the hearing, the worker commented that he did not think it was necessary for the first employer, where he was employed between 1994 and 1999, to attend the hearing. He advised that he had not suffered a hearing loss while employed with the first employer and that while working for the first employer he was provided with the best hearing protection available.

With respect to the second employer (hereinafter referred to as the "employer"), the worker submitted that he sustained a noise induced hearing loss caused by noise in his workspace while in the employ of the employer.

The worker was critical of the noise assessment survey conducted by the employer. He referred to opinions provided by a Professor of Psychology with a specialization in acoustics and the opinion of the professional engineer which was accepted as Exhibit #1. He outlined, in detail, his concerns and "flaws" with the survey which included the skill of the technician, methodology followed and tools used.

The worker advised that he performed his own noise level tests with his phone at various times in his workspace and found the readings exceeded 85 dBAs. He was not permitted to bring proper testing equipment into the workspace.

The worker advised that for his first 6 years commencing in July 1999, he worked in a small machine. He said it was very noisy but he has no information on the noise levels of this machine. He said that the small machine may have been noisier than the machine which he currently works on. In about mid 2005, the worker began working in a larger machine which had a reputation for being noisy. Hearing protection was not provided until the fall of 2012.

The worker advised that about 4 years ago he noticed that his hearing was deteriorating. He advised that he has had 3 sets of hearing tests which demonstrate that his hearing has deteriorated in both ears with his left ear suffering the greatest loss. He believes that his left ear is worse because he does not wear hearing protection on this ear, as it interferes with his ability to communicate and to hear important communications in the workspace.

The worker expressed concern that the WCB focused on the information which dealt with noise testing in the workplace and neglected the audiometric tests which show that he has suffered a hearing loss. The union representative provided the information including:

  • advised he has experience working on the type of machine that the worker currently works on.
  • provided background information about noise in machines generally and the model in which the worker works.
  • noted that older models of the machine are noisier than newer models and that the employer continues to use many older models.
  • explained that the noise in the machine varied throughout use and it was louder at times such as, during a full power usage and longer usage with more fuel and increased weight.
  • advised that during usage there are dozens of warnings which are broadcast at a higher level so that staff can hear them.
  • advised there have been some changes made in the workspace including the provision of noise attenuating headsets (NAH).
  • raised concerns about the quality and reliability of the employer's survey.
  • indicated that the union was not invited to participate in the noise assessment survey conducted by the employer.
  • noted the employer's survey only involved short usage.

The union representative questioned the validity of sound tests performed by machine manufacturers who have a vested interest in finding the machines are quiet.

In answer to questions from the panel, the worker provided details on his duties, work shifts and time he is subjected to noise on the machine. He advised:

  • his shifts vary from 79-85 hours per month not including usage planning.
  • the walk around before use adds several minutes.
  • he works in five day groupings.
  • he sits on the right side of the machine.
  • he uses a headset but his left ear is not covered so that he can communicate with co-workers.
  • he can work in up to 4 machines in one day.
  • his longer usage is in the five to six hour range.
  • when not in the workspace he can be subjected to noise such as when travelling as a passenger to his next workspace.

Employer's Position

The employer was represented by a disability case manager.

The employer representative advised that the employer agrees with the WCB and Review Office decisions. He submitted that the issue is very narrow whether the worker's hearing loss claim is acceptable. He referred to the hearing loss policy, and noted that it requires exposure to noxious noise for a minimum of 2 years based on exposure to an average of 85 decibels for 8 hours exposure on a daily basis. He submitted that the worker does not meet the minimum exposure requirements set out in the policy.

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 and satisfies the requirements noted in the policy.

The panel finds that the worker's claim for hearing loss is not acceptable. Much of the worker's presentation focused on the sound levels in the workspace. He was critical of the employer's noise assessment survey and other information provided by the employer regarding noise levels in the workspace.

The panel has considered the information on file. The panel acknowledges the worker's concern regarding the employer's noise assessment survey, but notes the results of the employer noise assessment survey are similar to the results of other tests/surveys that have been placed on file for the same type of machine, specifically:

  • the inter-noise 96 Noise Levels and Communications on the workplace report.
  • noise measurements taken by a fleet structure engineer dated January 12, 2012.
  • information obtained from the manufacturer regarding noise on the machine models that the worker works on.

The panel finds the above information is the best available information and relies upon it in reaching its decision. The panel notes that none of these tests demonstrate average noise levels of 85 decibels for eight hours of exposure.

Considering the test results, the evidence that noise levels vary continuously during usage, the worker's evidence of the hours worked and the time spent in the workspace with the engines running, the panel finds, on a balance of probabilities, that the worker does not meet the exposure requirements of the policy and that his claim is not acceptable.

The worker's appeal 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 1st day of December, 2014

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