Decision #08/15 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to his 1992 claim for noise induced hearing loss. A hearing was held on December 3, 2014 to consider the worker's appeal.Issue
Whether or not responsibility should be accepted for the deterioration in the worker's hearing;
Whether or not responsibility should be accepted for the worker's tinnitus condition; and
Whether or not responsibility should be accepted for the purchase of hearing aids.
Decision
That responsibility should not be accepted for the deterioration in the worker's hearing;
That responsibility should not be accepted for the worker's tinnitus condition; and
That responsibility should be accepted for the purchase of hearing aids related to the worker's noise induced hearing loss only.
Decision: Unanimous
Background
On November 6, 1992, the worker filed a claim with the WCB for noise induced hearing loss which he attributed to his employment history. The worker reported that his hearing loss came on gradually and that he felt very slight ringing in his left ear since the age of 16 after being exposed to a shot gun blast. The worker indicated that he was a hunter and he shot right handed. Early file records showed that the worker's hearing loss was calculated at 6.25 decibels in his right ear and 25 decibels in his left ear. On February 5, 1993, the WCB accepted the worker's claim for noise induced hearing loss but also determined that his hearing loss was not of a sufficient degree to entitle him to an impairment award.
On October 26, 2001, a hearing specialist from a hearing centre requested that the WCB provide the worker with digital hearing aids as the worker had "mild to moderate sensorineural high frequency hearing loss bilaterally." The specialist indicated that the worker suffered with severe tinnitus and recruitment. He felt the worker's hearing thresholds had deteriorated and that he now required the use of amplification.
By letter dated January 10, 2002, the WCB advised the worker that no responsibility would be accepted for the costs associated with hearing aids. The WCB noted that the worker had been a meter reader since 1995 and that he had not been exposed to noise on a constant basis. The WCB acknowledged that although the worker's hearing had deteriorated, the available information did not establish that the deterioration was the result of a work related exposure.
On January 10, 2003, the worker was advised that the WCB would not accept responsibility for the costs of medication with respect to tinnitus. The worker was advised that the WCB only recognized tinnitus on claims on or after April 1, 2000. As the worker's claim was dated October 16, 1992, his tinnitus condition was not considered a compensable condition. This decision was also confirmed by Review Office on February 21, 2003.
On March 11, 2004, the worker appealed the WCB decision dated January 10, 2002 to Review Office. On March 26, 2004, Review Office confirmed that no responsibility could be accepted for the deterioration in the worker's hearing or for the costs associated with the purchase of hearing aids. Review Office noted that the worker did have a noise induced hearing loss resulting from his exposure to noxious noise in industry but that the worker left the causative noise environment in 1995 to take up a new line of work where he was not exposed to any type of constant noise. Therefore any deterioration in his hearing was not the responsibility of the WCB.
With respect to the need for hearing aids, Review Office stated:
The need for hearing aids, which was first identified in 2001, is a direct result of the deterioration in the worker's hearing. In the opinion of Review Office, there is nothing in the medical literature to support the view that hearing loss progresses following the removal from noise unless the progression is due to factors other than the noise, such as disease or aging. Since the need for hearing aids is related to the non-compensable deterioration in the worker's hearing, Review Office is unable to recommend acceptance for the purchase of hearing aids.
In a report dated February 28, 2007, a clinical audiologist wrote the WCB with recommendations that the worker be provided with binaural digital hearing aids as the worker had constant bilateral high frequency tinnitus.
On March 24, 2007, a WCB case manager advised the worker that the WCB was not responsible for any deterioration in his hearing beyond 1995 or for hearing aids because his position as a meter reader did not expose him to noxious noise on a constant basis. The worker was advised that if he had a change in job position where he had been exposed to loud noise, the WCB may reconsider subsequent deterioration in his hearing.
On January 10, 2012, under Appeal Commission Decision No. 05/12 on the worker's 2010 claim, it was determined that the worker was not entitled to hearing aids, his tinnitus condition was a pre-existing condition not related his 2010 fall injury, and the 2010 accident did not result in a further deterioration in his hearing loss condition.
On August 22, 2014, the worker submitted an application to appeal indicating that he was appealing decisions made on his 1992 claim and his 2010 claim. On September 8, 2014, the worker was advised by the Appeal Commission that it was only able to consider issues related to his 1992 claim as the Appeal Commission had already considered his 2010 claim. On December 3, 2014, a hearing was held at the Appeal Commission related to the worker's 1992 claim with respect to the three issues identified at the beginning of this decision.
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.
WCB Policy 44.20.50.20.10, Hearing Loss (the “Policy”) outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The effective date for the Policy is for claims arising from accidents on or before March 31, 2000. The Policy further states that it applies to all claims for which the date of accident is on or after May 29, 1985, where the initial decision regarding hearing loss is made on or after October 1, 1995. The relevant time period for this claim falls between these dates and as such, the Policy applies to the present case.
The Policy states in part that:
- 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.
- For a claim 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).
- Claimants who have had an established hearing loss prior to commencing employment in Manitoba will only be given consideration for any increased impairment caused by exposure to Manitoba employment.
- Where a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board.
The worker was self-represented at the hearing and was accompanied by his spouse. At the hearing, the worker described an incident in 1983 where he was employed to cut grass using older style lawn mowers which were very loud. He performed this work for four and a half days without any hearing protection. The worker requested ear plugs from his supervisor but was denied. The worker stated that this was what really started the ringing and the hearing loss in his ears. From there, his hearing just got worse over time.
In 1985, the worker moved to work in the employer's carpentry shop which was also a noisy environment and sometimes required the use of a jackhammer. The worker wore double ear protection all the time, which he purchased on his own. The ear protection used by the worker was the type used by airport personnel to cut out the noise of jet engines. By the early 1990s, the worker was told by his audiologist that he had to get out of the noisy environments or else risk going deaf. He was therefore transferred to a position where he worked as an office cleaner. The worker continued this work until 1995 when he started a new position as a meter reader. While performing these duties, the worker would always carry foam-type ear plugs with him in case he encountered loud noise such as a barking dog or an ambulance coming down the road. In those cases, the worker would quickly put the earplugs in his ears. The worker continued these duties for eleven years until a corporate changeover occurred in 2006. From 2006 to 2010, the worker was placed in a variety of positions as the new employer tried to find a job which would be suitable for the worker given his condition. In 2010, there were two events at work which the worker felt significantly affected his hearing. The impact of those events was previously considered in Appeal Commission Decision 05/12 and will not be further addressed in these reasons.
In September 2010, the worker was assigned to work in an office and there he performed some computer work. In the spring of 2011, the worker returned to a position where he was disconnecting meters. The worker then retired in July 2011.
Analysis
There are three issues before the panel. We will address each separately.
1. Whether or not responsibility should be accepted for the deterioration in the worker's hearing.
In order for the worker's appeal on this issue to succeed, the panel must find that after the worker's claim for hearing loss was accepted on February 5, 1993, he suffered further noise induced hearing loss as a result of exposure to occupational noise. We are not able to make that finding.
At the hearing, the worker reviewed his work history with the panel. We have considered all of the worker's job positions held from 1993 to the time of his retirement in July 2011. In the panel's opinion, the noise exposures to which the worker was subjected during his job career were not excessive. The panel was not provided with any specific noise measurements for the various working environments. While we accept that some of the positions may have involved some occupational noise exposures which approached the 85 dB level as set out in the Policy, these exposures were not on a constant basis. Further, the worker's evidence was that since the mid 1980s, he always had the benefit of hearing protection, and that he often utilized double protection. Given the combination of limited exposure to noxious levels of noise and the use of hearing protection, the panel is not satisfied, on a balance of probabilities, that the workplace noise exposure was sufficient to be considered the cause of the deterioration in the worker's hearing. The worker's appeal on this issue is dismissed.
2. Whether or not responsibility should be accepted for the worker's tinnitus condition.
In order for the worker's appeal on this issue to succeed, the panel must find that there is entitlement to benefits for the worker's tinnitus which was made worse by the lawn mowing incident in 1983. We are not able to make that finding.
The WCB Hearing Loss Policy applicable to the worker's claim makes no provision for tinnitus. There is no provision in the Act or WCB Policy for benefits for tinnitus until April 1, 2000. A worker is only entitled to benefits under the legislation relevant to the time of the worker's injury, and unfortunately, there is no provision for an award for tinnitus which was suffered prior to April 1, 2000. At the hearing, the worker acknowledged that his tinnitus occurred prior to April 1, 2000. As such, the panel finds that no responsibility can be accepted for the worker's tinnitus condition. The worker's appeal on this issue is dismissed.
3. Whether or not responsibility should be accepted for the purchase of hearing aids.
The final issue concerns whether or not the WCB is responsible for the provision of hearing aids to the worker for work related hearing loss. In order for the worker's appeal to succeed, the panel must find that there is entitlement under the Policy for the provision of hearing aids in a situation where the worker has an accepted claim for occupationally induced hearing loss but where the deterioration in the worker's hearing loss is found to be unrelated to work and is therefore non-compensable. We are able to make this finding.
The relevant portion of the Policy is paragraph 5 and bears repeating:
5 Where a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board.
In this case, when the worker's claim for hearing loss was first accepted on February 5, 1993, the worker's hearing loss was not so severe as to require the use of hearing aids. It was not until many years later, in 2001, that the combined effect of the worker's work related noise induced hearing loss and his non-compensable deterioration caused the worker's health care providers to recommend the use of hearing aids.
Paragraph 5 contains mandatory language ("shall") and outlines two prerequisites for entitlement: an accepted claim for hearing loss and a specialist's recommendation. In the present case, both of these prerequisites are met: there is an accepted claim and the worker's specialist has recommended use of a hearing aid. We therefore find that there is entitlement under the Policy to the provision of hearing aids.
The panel notes that any entitlement to hearing aids arises only in respect of hearing loss. At the hearing, the panel questioned the worker on the type of hearing aids he was seeking. It would appear that the worker has three conditions which would benefit from the use of hearing aids: hearing loss, tinnitus and hyperacusis. Given that responsibility for the tinnitus and hyperacusis has not been accepted, the decision to grant entitlement to hearing aids applies only to hearing aids suitable for noise induced hearing loss as approved by the WCB.
The panel therefore finds that responsibility should be accepted for the purchase of hearing aids.
The worker's appeal on this issue is allowed.
Panel Members
L. Choy, Presiding OfficerC. Devlin, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 23rd day of January, 2015