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 work-related.  A hearing was held on April 28, 2015 toconsider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In August 2013, the worker filed a claim with the WCB for noise induced hearing loss. The worker reported that he first became aware of a hearing problem in 2008 and that it came on gradually. The worker attributed his hearing loss to working in the construction field for a number of years.

On September 24, 2013, a WCB adjudicator obtained additional information from the worker regarding his noise exposure and work history from 1969 onwards. The worker reported a continuous ringing in both ears since 2008 and that a doctor told him that there was nothing that could be done about it. The worker denied any family history of hearing impairments or deafness.

In a decision dated October 28, 2013, the worker was advised that his claim for compensation was not acceptable. The adjudicator noted that the worker was attributing his hearing loss to his work exposure in general and exposure to noise in the construction industry since 1973. The WCB's investigation showed that between 1973 to 1976, the company that the worker worked for was no longer in business and the WCB was unable to confirm his exposure to noise. Starting in 1985, the worker was employed with various construction sites as a jobsite supervisor and his time was split between the office and the construction site. The worker confirmed that he did not physically operate the tools of the trade when on the job site.

The WCB also noted that the worker was self-employed as a carpenter which exposed him to high levels of noise for 8 hours per day as he was personally using the tools and completing the work. During this time, the worker did not carry coverage with the WCB. Other employers also confirmed that the worker was a jobsite supervisor; however, the WCB felt that the worker had minimal exposure to noise as not all of his time was spent on the construction sites and he did not operate the tools of the trade.

The adjudicator concluded that the file information did not establish a work-related exposure to noise at or above 85 decibels for a sufficient period of time to meet the WCB threshold for noise induced hearing loss. On November 29, 2013, the worker appealed the decision to Review Office.

On January 21, 2014, Review Office confirmed that the claim for compensation was not acceptable. Review Office considered the worker's employment history when he had WCB coverage working in Manitoba and found that he was not exposed to the level and duration of noxious noise that was required by WCB policy. Review Office noted that the worker worked at various job sites. It did not consider his noise exposure while delivery driving or to intermittent background construction noise such as from others using tools/machinery as a job supervisor would produce the required amount of noxious noise (85 decibels or higher). The duration of time the worker stated he was in a noisy environment did not meet the criteria of WCB policy. On December 19, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

WCB Policy 44.20.50.20.01, Hearing Loss (the “Policy”) sets out guidelines related to claims for hearing loss arising from long-term exposure to occupational noise. The Policy states in part that:

2. 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.

3. Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is exposed to noxious 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. For every increase in noise level of 3 decibels, the required exposure time will be reduced by half.

Worker’s Position

The worker was self-represented at the hearing and was accompanied by a support person. The worker described a long career in the construction industry and he felt that he had been exposed to high levels of noise during those years. Although his job duties were mostly as a site supervisor, he did not agree that this would mean that he was only exposed to minimal amounts of noise. He stated that he would be on the job sites for long periods of time, and while onsite, he could not help but be exposed to the noisy environment. The first stages of construction were typically the noisiest, during the excavation and framing stages. During those stages, he would regularly have to be present to ensure that the work was being done properly.

Overall, the worker asked the panel to give consideration to the damage which would have been caused over the many decades of exposure, rather than limiting his hearing loss claim to a shorter, intensified period of exposure. The panel was therefore requested to find that his claim for hearing loss was acceptable.

Analysis

The worker claims that his hearing loss documented in an audiogram conducted in August 2013 relates to his employment in the construction industry since the 1970s. In order for the worker’s appeal to be successful, the panel must find that during the course of his employment, the worker sustained noise induced hearing loss due to exposure to high levels of noxious noise as set out in the Policy. On a balance of probabilities, we find that the worker's exposure to noise in the workplace did not meet the minimum levels set out in the Policy and therefore his claim is not acceptable.

At the hearing, the worker's evidence was that the highest levels of noise were during the excavation and framing stages of construction. During excavation, the heavy machinery, and in particular, the loaders, would be the most significant source of noise. Although the worker was a supervisor who travelled from site to site, he would still be exposed to the noise as he would have to stand in the areas being excavated and be available to ensure that the work was being done properly. During the framing stages, the worker identified sawing and nailing with an air compressor as being the largest generators of noise.

With respect to noise levels, there were no noise surveys or other formal measurement of sound levels available. The worker indicated that it was his understanding that power saws generate noise levels of a little over 85 decibels.

The worker indicated that since approximately 2009, he used hearing protection when at job sites, in the form of ear plugs. He advised, however, that the protection was not 100% and he did not always use the ear plugs consistently.

Although the panel accepts that the noise levels in the workplace may, at times, have reached or exceeded the 85 decibel level, we find that while performing his duties as a site supervisor, the worker was not exposed to continuous noise for eight hours per day, as required by the Policy. On the Worker's Hearing Loss Report form, the worker consistently indicated that when employed by various contractors, his exposure to loud noise ranged from one to two hours per day. The only time his exposure was higher was from 1983 to 1984 when he was self employed as a carpenter (without WCB coverage) doing building construction and framing. During that period of time, the exposure was reported as six hours per day.

In his work as site supervisor, the worker would be present at the worksite, but he would also travel from location to location as he was responsible for more than one project at a time. There was also various types of paperwork which he had to complete, which was typically done in an office or in his truck. Accordingly, for significant periods of time throughout the day, he would not have been directly exposed to noise, nor in close proximity to noise.

Overall, the panel finds that while there may have been intermittent exposure to loud, and sometimes sudden, noise, the worker's exposure during his career in the construction industry was not sufficient to meet the requirements set out in the Policy. At no time, including when he was self-employed, was the worker exposed to eight hours of continuous noise on a daily basis. While his career in the industry spanned many years, in order to find that there has been occupational noise induced hearing loss, the exposure must be continuous, and not intermittent. For these reasons, the panel finds that the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

P. Walker - Commissioner

Signed at Winnipeg this 11th day of May, 2015