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 in his right ear is not compensable.  A hearing was held on May 12, 2015 toconsider the matter.

Issue

Whether or not the worker's hearing loss in his right ear is compensable.

Decision

That the worker's hearing loss in his right ear is compensable.

Decision: Unanimous

Background

In April 2010, the worker filed a claim with the WCB for noise induced hearing loss which he attributed to his employment as a mechanic. The worker reported that his hearing loss came on gradually and he did not report it to his employer. The worker provided the WCB with his employment history from 1957 to 1991.

On June 14, 2010, a WCB adjudicator contacted the worker to obtain additional information regarding his hearing loss difficulties, the job duties he performed as a mechanic and details of any noise exposure outside of his working environment.

The WCB obtained audiogram results which were reviewed by a WCB ear, nose and throat ("ENT") consultant on January 12, 2011.

On January 18, 2011, the worker was advised that his claim for noise induced hearing loss had been accepted for his left ear based on the following rationale:

"...your file was referred to our healthcare Department and reviewed by our Ear, Nose and Throat (ENT) specialist. Upon review of the audiological information received, our ENT specialist noted that the sum of the loss of hearing in your right ear was determined to be 224.00 decibels. In the opinion of the ENT the hearing loss in the right ear is not as a result of noise exposure and a hearing aid would not be beneficial. The sum of the loss of hearing in your left ear has been determined to be 69.00 decibels, it is typical of noise exposure and a hearing aid may be of benefit. As the right ear hearing loss is not employment related, your condition is not considered to be rateable and you do not qualify for a permanent partial impairment award."

On May 20, 2014, the worker filed an appeal with Review Office requesting that he be provided with a hearing aid for his right ear.

On July 10, 2014, Review Office determined that the worker's hearing loss in his right ear was not compensable. Review Office took note of the November 13, 2007 audiology report which indicated that the worker's exposure to noise may have contributed to the high frequency hearing loss in his left ear and that no mention was made of the worker's right ear. Review Office accepted the medical opinion of the WCB ENT consultant who stated on January 12, 2011:

The worker has an asymmetric hearing loss with the right ear being much worse with a very poor speech discrimination score. According to medical information on file, the right hearing loss was sudden in onset and possibly related to multiple sclerosis (MS). MRI was done twice and according to the doctor's reports it was normal. The hearing loss in the left ear is typical of NIHL (noise induced hearing loss).

Assuming occupational NIHL is symmetrical, I am using left ear thresholds for both ears for PPI (permanent partial impairment) purposes. Because of the very poor speech discrimination score a hearing aid will not be helpful in the right ear.

Review Office noted that based on an audiology report dated April 7, 2010, the worker's hearing loss in his right ear was sudden and this was not typical of noise induced hearing loss. Review Office found the worker's hearing loss in his right ear was much more likely related to his MS. On March 29, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act. Hearing loss claims are adjudicated by the WCB as occupational disease claims.

The Board has established Policy 44.20.50.20.01 Hearing Loss (the “Hearing Loss Policy”) to address claims arising from long-term exposure to occupational noise that causes hearing loss.

The Hearing Loss Policy states, in part:

1. Noise induced hearing loss occurs gradually – often over several years – and most hearing-loss claims do not involve a loss of earnings. For these reasons, it can be difficult to determine when the impairment began. For the purposes of this policy, the date of the accident will be:

a) The date a loss of earnings has occurred, or

b) The date of an audiogram which shows evidence of noise-induced hearing loss.

…

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.

The issue to be determined by this panel deals with whether the worker’s hearing loss in his right ear is compensable.

Worker’s Position

The worker’s written submission set forth the following points:

· Review Office accepted the claim for noise induced hearing loss in his left ear but rejected his claim for noise induced hearing loss in his right ear. The worker contended both of his ears had been similarly exposed and both should be treated in a similar fashion.

· An ENT consultant retained by the WCB had advised, on January 12, 2011, that because of a very poor speech discrimination score, a hearing aid would not be helpful in the worker’s right ear. The worker stated that he had subsequently inserted his hearing aid in his right ear and found that it did make a difference. He submitted that he had trialed a hearing aid in his right ear and that it had proven to be helpful. He also stated that, in May of 2014, an audiologist re-evaluated the worker’s hearing and recommended that he would benefit from a hearing aid in his right ear.

During the hearing, the worker reviewed the types of workplace noise that he was exposed to during the course of his employment. For most of his 17 years of employment, he was exposed to high levels of noise, particularly while testing heavy transport trucks on a dynamometer testing stand. The testing, which was intended to simulate highway conditions, took place in a closed room. The worker sat in the truck cab during testing. Both cab windows were open, as the truck cab was hot. The movement of the truck tires on the rollers emitted a high pitched scream, with the rollers being the source of most of the noise.

The employer’s shop employed approximately 70 mechanics on the day and evening shifts. The worker had been responsible for having established the dynamometer testing and had been in charge of it. He testified that he had performed two or three tests a day for the last five to seven years of his employment. When he was not in the confined dynamometer testing area, he would have been using loud pneumatic air tools. He estimated that he would have to use such tools during upwards of 70% of his work. Hearing protection was not provided.

The worker commented on the Review Office decision that the hearing loss in his right ear was much more likely related to his multiple sclerosis than to a noise induced hearing loss. After review of on-line medical information that while sudden unilateral hearing loss “as a symptom of MS is rare but does occur”, Review Office commented that an otolaryngologist who saw the worker in September 2007 thought that the hearing loss could possibly be attributable to MS. That comment would have been based on a June 17, 2010 letter from a doctor who had responded to an inquiry from the WCB seeking the results of a September 2007 hearing test. The doctor who performed that hearing test had retired, and the doctor who responded stated that the retired doctor had recorded that the worker had a sudden decrease in hearing on the September 2007 visit, and he (the retired doctor) “wondered if this might have represented either a vascular infarct or possibly related to a prior history of multiple sclerosis.”

The worker contended that the facts did not justify the Review Office’s interpretation. He submitted that that he had undergone an MRI scan that failed to show any evidence of an acoustic neuroma related to multiple sclerosis. He also submitted that the hearing loss in his right ear had not improved as is typical in patients with multiple sclerosis.

There was no specific medical evidence provided to suggest that an MS induced hearing loss was likely the cause of the worker’s hearing loss in his right ear.

The worker stated that while he could not establish that his hearing loss was noise-induced, he believed that the noise exposure in his right ear was no less than the noise exposure in his left, and that there was no basis to say that the hearing loss in one, but not the other, was caused by noise exposure in the workplace.

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 is acceptable. In order to find the claim acceptable, the panel must find, on a balance of probabilities, that the worker was injured as a result of an accident arising out of and in the course of his employment. In other words, we would need to find that the worker suffered from a noise-induced hearing loss in his right ear.

The Hearing Loss Policy states in part:

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.

In this particular case, the WCB, in accepting the claim for noise induced hearing loss in the worker’s left ear, was satisfied the worker had been exposed to the level of noise set forth in the policy. This left ear exposure was confirmed in a May 2003 audiogram. There is therefore no need for the panel to address that exposure in the context of this decision.

The panel accepts that the medical evidence supports the finding of a noise induced hearing loss in both ears. An ENT specialist, who tested the worker in May of 2003, concluded “the audiogram showed a bilateral severe high tone sensorineural loss typical of noise exposure.” The audiogram did not show any significant changes when the worker was retested one year later by the same ENT. The specialist stated, without distinguishing between the left and right ear, that the worker’s hearing loss was compatible with noise exposure. The panel similarly notes, in our review of the 2003 audiogram, that the findings are essentially the same for the left and right ear, with maximum damage at 4,000 Hz with recovery at 8,000 Hz.

In January of 2011, the WCB ENT consultant assumed that for the purposes of calculating a Binaural Hearing impairment, occupational noise induced hearing loss is symmetrical, and that the left ear thresholds could be used as proxy for the right ear for PPI (Permanent Partial Impairment) rating purposes. At the hearing, the panel carefully assessed the worker's job duties and finds that the noise exposure was in fact bilateral. This is reflected in the May 2003 audiogram.

The panel therefore finds that the worker’s hearing loss in his right ear is compensable.

Panel Members

D. Kells, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 21st day of May, 2015