The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits in relation to a workplace accident of August 8, 2010 or to the costs associated with tinnitus retraining therapy.  A hearing was held on February 4, 2015 to consider these matters and the hearing reconvened on March 2, 2015.

Issue

Whether or not the worker is entitled to wage loss benefits;and

Whether or not responsibility should be accepted for tinnitus retraining therapy.

Decision

That the worker is not entitled to wage loss benefits; and

That responsibility should be accepted for tinnitus retraining therapy.

Decision: Unanimous

Background

At the time of the accident, the worker had a previously accepted claim with the WCB for a cumulative noise induced hearing loss dating back to 1975.

On August 8, 2010, the worker was standing on the platform of a locomotive when a co-worker accidently sounded a horn causing an injury to the worker's right ear.

When speaking with an adjudicator on October 8, 2010, the worker noted that prior to the August 8 accident he had intermittent tinnitus and now he had constant hissing in his ear, hearing loss, nerve damage and a stretched ear drum. The worker stated that he normally wore ear plugs and a noise canceling head set but he was not wearing hearing protection at the time of the August 8 incident as the noise was unexpected. On October 21, 2010, the worker advised the WCB that he was now missing time from work as a result of the incident and his last day was on October 9, 2010.

On February 13, 2011, the WCB's ear, nose and throat ("ENT") consultant reviewed the file information and stated:

Screening audiograms...show asymmetric hearing loss with the right ear being much worse and dating back to the audiogram of 1975. This asymmetry could be explained on the basis of the right ear trauma and surgery that he had many years ago. The recent audiograms since the incident of Aug. 8, 2010 show mixed hearing loss in the right ear. Acoustic trauma causes sensorineural hearing loss. Therefore, the conductive component of the hearing loss is not related to the incident of Aug. 8, 2010...Manitoba WCB does not cover for tinnitus retraining, but we cover for hearing aids and tinnitus maskers, if helpful.

On June 23, 2011, the WCB ENT consultant stated:

The worker had tinnitus prior to the incident of the acoustic trauma from the train whistle. According to the worker his tinnitus got worse after the incident. There is no way to confirm or deny this. Tinnitus is not usually a disabling condition that prevents people from working. Avoiding noise exposure may help reduce tinnitus. The worker is using ear plugs and headsets at work. This should be adequate to reduce his exposure to noise at work.

I cannot see any recommendations on file from ENT specialists advising the worker to stay away from work. There is no medical information to support the worker's time loss.

Following contact with the worker and the accident employer regarding the August 8 incident, the WCB accepted that the worker suffered a traumatic incident at work on August 8, 2010 but found that his tinnitus condition and sound sensitivity would not disable him from performing his job duties. The WCB noted that as the worker continued to work from August to October and he wore both plugs and a noise cancelling headset to reduce his noise exposure, there was no medical evidence to support that his tinnitus or sound sensitivity was disabling him from work.

On July 26, 2012, the worker submitted a number of documents to the WCB regarding his hearing loss condition. The worker noted that his tinnitus condition prior to the August 8 injury was a quiet whisper only noticeable in a hearing test booth. It now overpowered the sounds of ambulance sirens or close passing jets. Because of hyperacusis, sounds that appear normal to others are intolerable to him. His hearing aids were set at 80% as he could not tolerate any higher due to his hyperacusis. The worker noted that he was attending Tinnitus Retraining Therapy ("TRT") and that the costs for the treatment would be covered by WorkSafeBC had the injury occurred in that province and he expected the same from Manitoba.

On September 24, 2013, the worker was advised that after review of the additional information he submitted, the original decision would remain unchanged. The case manager stated:

You have indicated you are requesting reconsideration of your time loss benefits and TRT/ART therapy. Upon reviewing your submitted information, you have indicated you also suffer from hyperacusis as a result of the reported accident. Hyperacusis is not considered a compensable condition under the Worker's (sic) Compensation Act of Manitoba.

There is no new medical information for reconsideration related to the immediate onset of symptoms related to the accident of August 8th, 2010. The majority of information submitted is general information from various medical providers or resources; the submitted resources have not been part of your medical care following the compensable injury nor do they speak to your specific case. [Treating otolaryngologist's] medical report dated January 10th, 2012 does not confirm you require being off work as a result of your August 8, 2010 accident. Medical information on file indicated pre-existing tinnitus which did not prevent you from engaging in your work activities prior to the date of injury. The medical information following the date of accident, in addition to the opinion of our WCB ENT Medical Advisor, does not confirm total disability from work.

[Treating otolaryngologist] reported significant improvements with the counseling and tinnitus retraining therapy.

...it is the opinion of Compensation Services there is insufficient evidence to support that you were unfit to return to your pre-injury work duties as a result of the reported incident. As such, no wage loss benefits have been authorized.

...Additionally, you requested consideration for coverage of TRT/ART therapy. Your file was reviewed in consultation with a WCB medical advisor who reported this therapy is considered experimental. It is also noted on file your tinnitus was present prior to your accident date. As such, the requested TRT/ART therapy is not considered to be a compensable expense in relation to your traumatic noise exposure of August 8th, 2010.

On April 23, 2014, the Worker Advisor Office appealed case management's decision to Review Office that the worker was not entitled to wage loss benefits or to coverage for TRT.

On July 11, 2014, the WCB ENT consultant stated:

Comparison between Dec., 2008 and Nov., 2010 audiograms shows an average improvement of 4 dB in the right ear and 13 dB in the left ear. This indicates that the incident of August 8, 2010 did not affect the worker's hearing. The worker has an asymmetric hearing loss with the right ear being worse and dating back to the 1975 audiogram. The right ear has mixed hearing loss. The conductive component of the hearing loss in the right ear is caused by otosclerosis.

He underwent stapedectomy with prosthesis/fenestration of the oval window...on Oct. 2, 1970 (at the age of 17 years). This type of surgery is done for otosclerosis which is fixation of the stapes foot plate resulting in hearing loss, usually conductive or mixed.

Prior to considering the worker's appeal, Review Office obtained a medical opinion from the WCB ENT consultant dated July 10, 2014 regarding TRT and the possible benefits/outcomes from this form of treatment. A copy of the July 10, 2014 medical opinion was then shared with the worker advisor who provided his comments in a letter dated July 21, 2014.

On July 29, 2014, Review Office determined that the worker did not have a loss of earning capacity in relation to the August 8, 2010 accident and therefore he was not entitled wage loss benefits. Review Office's decision was based on the following:

• the worker was employed as a conductor for three to four months (June/July to October) annually since he started in 2008.
• the evidence did not support that the worker was advised in October 2010 by the otolaryngologist to discontinue working due to his symptoms.
• the use of hearing protection (ear plugs) and the noise cancelling headset would allow the worker to continue working. The removal of the ear plugs/headset would be intermittent and was not sufficient to warrant time loss from work.
• based on audiogram results from December 6, 2008 and November 4, 2010 and the comments made by the WCB ENT specialist on July 10, 2014, Review Office was unable to conclude that there was a change in the worker's hearing loss in either ear, separate from tinnitus and hyperacusis.
• the management options outlined by the worker's treating audiologist on January 4, 2011 did not preclude the worker from working.
• although the worker began to use hearing aids with tinnitus maskers in August 2011 and he reported great benefit from them in reducing his symptoms, he had not returned to work. Review Office was unable to account for the worker's loss of earning capacity before and after August 2011 to the August 8, 2010 accident.

Review Office accepted the WCB ENT consultant's opinion that TRT was a relatively new concept in the management of tinnitus and that TRT had not been adopted universally as an effective treatment of tinnitus. Review Office found that TRT provided limited benefits for the worker's symptoms and confirmed that the costs of TRT should not be covered. On October 28, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on February 4, 2015. The hearing was adjourned and then reconvened on March 2, 2015.

Reasons

Applicable legislation:

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 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Provision of medical aid to injured workers is payable in accordance with subsection 27(1) of the Act which provides as follows:

Provision of medical aid 27(1)    

The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Worker’s Position

The worker was assisted by a worker advisor in the appeal and participated via teleconference. The worker's position was that he was entitled to wage loss benefits because the evidence supported that he experienced a loss of earning capacity effective October 11, 2010 that was causally related to the August 8, 2010 workplace accident. Following the workplace accident, the worker experienced a distinct and adverse change, both in terms of his hearing loss and tinnitus, and he also developed hyperacusis, commonly referred to as hypersensitivity to sound. While none of the treating ear specialist reports on file discussed the worker's work capabilities, two new reports from the current otolaryngologist confirmed that the worker continued to suffer from tinnitus and sound sensitivity and that the worker was unable to return to work in noisy environments, even with the provision of hearing protection as doing so would likely aggravate these conditions. It was therefore submitted that the worker's regular work duties were not suitable for him, even with hearing protection, because the environmental noises were simply too loud for someone suffering from severe tinnitus symptoms, combined with an intolerance for many normal, everyday noises. Further, the worker's job duties required him to communicate with co-workers by both radio transmission and satellite phone. In order to do so, the worker would have to remove his hearing protection and be exposed to loud noise.

Despite the WCB's provision of hearing aids and ongoing tinnitus therapy, both the worker's tinnitus and hyperacusis remained severely intrusive to date. Given these factors, it was submitted that it was reasonable to presume that these conditions were not going to improve sufficiently such as to allow the worker to safely return to his pre-accident job.

With respect to coverage of TRT, it was submitted that this treatment was recommended in relation to the worker's tinnitus and hyperacusis, and as these were compensable conditions arising from the August 8, 2010 incident, the worker was entitled to reimbursement for these costs, which he paid for by himself.

Analysis

There are two issues before the panel. The first issue is whether or not the worker is entitled to wage loss benefits. In order for the appeal to succeed, the panel must find that the worker has suffered a loss of earning capacity as a result of his tinnitus and hyperacusis. On a balance of probabilities, we are not able to make that finding.

In order for wage loss benefits to be payable, there must be medical, or similar, evidence of a disability arising from a compensable incident or condition. In this case, there was no medical authorization for time loss until many years after the worker had exited from the workforce.

After the whistle blast of August 8, 2010, the worker continued to perform his regular duties for approximately two months until his last day of work on October 9, 2010. This was approaching the end of the season, and in that year, the annual lay-off occurred on November 1, 2010. Just before his departure, the worker was seen by an otolaryngologist on October 6, 2010. In his report of October 18, 2010, the otolaryngologist described the worker's reported symptoms, but did not authorize time loss from work.

In reports dated October 2, 2014 and October 21, 2014, the worker's treating otolaryngologist indicated that given his ongoing hearing problems, the worker should not be working in a noisy environment, and in particular, he should not be working around trains with a sudden loud sound of a whistle being a possibility, as this would aggravate his symptoms. It was further opined that simply wearing hearing protection would not be sufficient for the worker to prevent further aggravation as extreme loud sounds would still be problematic even with hearing protection.

The opinion of the WCB ENT consultant dated June 23, 2011 was that tinnitus is not usually a disabling condition which prevents people from working and that avoiding noise exposure may help reduce tinnitus. The worker was using ear plugs and headsets at work and this should have been adequate to reduce his exposure to noise at work.

At the hearing, the worker described his noise exposures while at work. He performed conductor duties approximately 70-75 percent of the time, and engineer duties the other 25-30 percent. The noise in the cab was ever present, and could be louder depending on the amount of throttle and braking that was occurring. When asked about how often the train whistle would sound, the worker was forthright in answering "not that often." The whistle blowing had a high degree of predictability as it had to be sounded at the handful of public crossings, but there were other times where it had to be blown if there was an animal on the track or the possibility that pedestrians were in the area.

In addition to the loud ambient noise of the locomotive, the worker identified the satellite radio, which would emit beep tones multiple times per hour. Only some of the transmissions would be directed to his train, but he nevertheless had to be aware of and listen to them. In order to muffle the noise, the worker tied paper towels or put his coat over the radio. He could then still hear when someone was calling, but the noise was less. If the worker determined that the communication was for his train, he would remove at least one or sometimes both of his hearing protections to complete the call. A call would take anywhere from a few minutes to approximately fifteen minutes.

In the panel's opinion, the noise exposures described by the worker could be adequately addressed by the use of hearing protection. The ambient noise would be reduced by the use of hearing protection and we feel that there was only minimal risk of exposure to sudden loud sound. The worker was able to muffle the sound of the satellite radio by covering the speaker and the sounding of the train whistle was infrequent and largely predictable. The requirement to remove his hearing protection was only occasional, and for very short periods of time. Measures could be taken to avoid any sudden noises while his hearing protection was removed, or at minimum, due warning could be given to the worker of the engineer's intention to sound the whistle.

Overall, the evidence is not sufficient to satisfy the panel on a balance of probabilities that the worker's tinnitus and hyperacusis caused him to suffer a loss of earning capacity. The worker's appeal on this issue is denied.

The second issue is whether or not responsibility should be accepted for TRT. In order for the worker's appeal to succeed, the panel must be satisfied that the treatment is necessary to cure and provide relief from the injury resulting from an accident. We are able to make this finding.

The panel accepts that the worker suffered a worsening of tinnitus and hyperacusis as a result of the August 8, 2010 accident. After the worker returned to his home province, he was assessed by an otolaryngologist. In a report of November 5, 2010, it was recommended that the worker consider amplification for his right ear and was provided a handout on tinnitus. White noise masking of the bedroom was also recommended.

On August 2, 2011, the worker received WCB-approved hearing aids. The worker acknowledged that these hearing aids had helped a fair bit with the tinnitus as they had sound generators built into them. At the time of the hearing, the worker was still working with the audiologist to determine the optimal level of settings for the hearing aids.

With respect to the TRT, the evidence shows that the worker attended an initial consultation appointment on January 4, 2011, and then two follow-up appointments on February 9 and August 17, 2011. When asked what benefit he received from the TRT, the worker indicated that at the initial session, he was provided with education regarding the condition and was shown how to use sound generators effectively. After the first session, the worker got two sound generating units which he installed in his living room and his bedroom. In the follow-up sessions, the worker was provided with further counseling regarding awareness and coping strategies, from which he felt he received benefit in that it helped him to cope with his condition and gave him hope.

In the panel's opinion, responsibility should be accepted for the TRT sessions of January 4, 2011, February 9, 2011 and August 17, 2011. The worker did not receive his WCB approved hearing aids until shortly before the August 17, 2011 TRT session and we find that for the time period before he received his aids, the TRT treatment was necessary to provide relief from his compensable injury. As a result of the TRT sessions, the worker was able to install sound generating units in his home, which is consistent with the medical recommendation made by his otolaryngologist.

After obtaining his hearing aids, the worker attended for subsequent follow up appointments on September 24, 2012, April 15, 2013 and October 2, 2014. At the hearing, the worker indicated a generalized intention to continue to attend TRT sessions, but did note that they were, to a large extent, "hand-holding" and that while his appeal was pending, the audiologist felt that any recovery would be impeded. While the benefit of these appointments is not as apparent as the earlier appointments, the panel finds that responsibility should be accepted as the worker's hearing condition has not yet stabilized in that he is still undergoing adjustments in his hearing aids. We note, however, that medical aid benefits are only provided in circumstances where there is a sustained benefit to the worker. Treatment for simply maintenance purposes is not covered. The panel accepts that the worker may still experience improvement in the management of his condition and he is therefore entitled to some degree of ongoing coverage for TRT sessions. We will refer the matter back to the WCB to monitor the worker's progress with his TRT treatment to determine when he has reached a point where no further improvement is being made and the worker has reached a maintenance level, at which time responsibility for TRT should be discontinued.

The worker's appeal on this issue is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of March, 2015