Decision #69/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his hearing loss difficulties were not related to his employment. A hearing was held on April 28, 2015 to consider the matter.
Issue
Whether or not the worker's claim for hearing loss is acceptable.
Decision
That the worker's claim for hearing loss is not acceptable.
Decision: Unanimous
Background
On July 29, 2014, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL") which he attributed to his employment. The worker reported that he first became aware of a hearing problem 5 to 6 years ago and that it came on gradually.
The Employer's Incident Report stated that the worker reported on July 17, 2014 that he had hearing loss due to the long term effects of using electric power saws for cutting materials.
On July 31, 2014, the accident employer advised the WCB that they had noise level information for the saws that were used. They had two saws and both registered in the 90 decibel range. He noted that hearing protection was recently provided. He stated that the saw usage was very intermittent. It would take one to one and a half minutes for one cut and one minute for a second material cut. Saws were not used on all materials.
On August 29, 2014, the worker provided the WCB with details of his employment history. In particular, the worker noted that he worked as a materials transporter for two years in 1989 and that he was exposed to noise while transporting materials through the underground tunnels. No hearing protection was worn in the beginning. Around 1983 he began work in a different department and used a hand saw (not powered) everyday and used power saws a few times a week. The saws on his job were used to cut through hard material. Some cuts took about five minutes to do and others took five to ten minutes. Hearing protection was never worn up until a week ago.
On September 16, 2014, the worker advised the WCB that he helped his father with his handyman business on a casual basis. There would have been some noise exposure; however, he always wore hearing protection as the noise would cause him to have sore ears.
The worker's claim file contains an October 20, 2014 report entitled "Noise Dosimetry for [brand name] Saw in [department]."
On November 3, 2014, the worker was advised that his claim did not meet the WCB's criteria for NIHL. The adjudicator's decision was based on noise level testing that was done by the worker's employer over the course of two separate days. The adjudicator commented that although the levels were high at certain times, the overall average exposure was less than 85 decibels.
On November 10, 2014, the worker filed an appeal with Review Office stating that his treating audiologist felt that his hearing loss was the result of noise exposure.
In January 2015, a WCB review officer contacted the worker and the accident employer to obtain further information concerning the nature of the worker's job duties. The review officer also obtained medical advice from a WCB ear, nose and throat ("ENT") consultant as to whether or not the worker's job duties or work environment contributed to his hearing loss.
In a decision dated January 14, 2015, Review Office determined that the worker's claim for hearing loss was not acceptable. Review Office indicated that it accepted the WCB ENT consultant's opinion of January 12, 2015.
Review Office found that the worker's occupational noise exposures were not sufficient to satisfy the requirements set out in WCB Policy for acceptance of hearing loss claims. The worker's left-sided hearing was worse than his right-sided hearing and it could not be explained by his employment which would have exposed both ears equally. On January 28, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral 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.
Claims for hearing loss due to exposure to noise in the workplace are adjudicated pursuant to WCB Policy 44.20.50.20, Noise-Induced Hearing Loss. 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 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.
The worker is appealing the WCB Review Office decision that his hearing loss is not related to his employment.
Worker's Position
The worker was self-represented. The worker advised that his hearing has deteriorated over the last 20 years. He noted that hearing tests at his job prior to 1994, did not identify any NIHL. He believes his current hearing loss is a result of working with noisy equipment since 1994.
The worker described the duties at his current job and the equipment that he uses. He said that he uses two types of specialized reciprocating saws and that one model is noisier than the other. He said it peaks at about 118 decibels. He drew a sketch of the noisiest saw and demonstrated his posture in using the saw. He feels that his left ear is closer to the saw and noise than his right ear, hence his hearing loss is worse in his left ear.
The worker also advised that some tasks take longer so when performing the tasks, he is subjected to the noise longer. He provided examples of the tasks and the length of time it takes to perform the various tasks.
The time that the saw is running can be as long as 20 to 30 minutes. He said that the saws are loud but are loudest when they contact and cut the material. The noise from the saws even bother him when another staff is using the saw in the workplace.
The worker advised that occasionally he is required to transport materials and that the transport area is very noisy but he does not think it’s a huge part of the noise exposure for him.
The worker said that over the years he has complained about the noise caused by the saws. The workers in this area now wear hearing protection. He also said that the saws have improved and are not as loud as when he started. He noted that a Dosimeter test was performed in the workplace.
The worker advised that he saw an ENT specialist who has scheduled a CT scan but he does not have an appointment date yet. The ENT specialist reviewed the audiogram which was prepared by a hearing centre. He advised that he has had ringing in his ears for more than 10 years.
At the close of the hearing the worker said:
"I would like to point out my hearing thing, is you know, I have a real simple argument here. I had good hearing, I went into [job] and, you can see, it says a significant shift in my hearing. They’ve done testing on the saws and they’re peaking at 118 decibels which is, I think, is pretty loud. So, I don’t really know any other reason why my hearing is so bad. As far as the medical, if there’s a medical issue, I am getting that check (sic) out."
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue in this appeal is whether or not the worker's claim for NIHL is acceptable. The worker submits that his NIHL is due to long-term exposure to noise in the workplace.
In order for the worker’s appeal to be successful, the panel must find that during the course of his employment with the accident employer, the worker sustained hearing loss due to exposure to the levels of noxious noise as set out in the Policy. The panel finds, on a balance of probabilities, that the evidence does not establish that the worker suffered a NIHL caused by long-term workplace noise exposure, and accordingly his claim is not acceptable.
The panel notes that the worker's hearing loss is asymmetrical; it is worse in his left ear than his right. The panel notes that it is unusual in NIHL cases for there to be a such a significant difference between the hearing loss in the worker's ears.
The worker attributed the greater loss in his left ear to the manner in which he performed his duties, specifically to how he held the saw and positioned his body when cutting longer materials. He said his left ear was closer to the saw while the saw was operating. The panel also considered the workspace in which the worker operated the saw, and the worker's postures while operating the saw. The worker demonstrated his various body positions and the positioning of the saws while performing his job duties. The panel considered his argument, but is unable to find that the worker's left ear was exposed to significantly greater noise than his right ear and was not able to find that the exposure to noise was of sufficient intensity and duration to cause a hearing loss.
The panel notes that 2 different sound tests were conducted with respect to the noise caused by the saws and the general noise levels in the workplace. The noise levels and durations recorded in the tests do not meet the exposure minimum levels set out in the Policy. The tests demonstrated time weighted average noise levels of 78 and 83 decibels.
The panel attaches significant weight to the January 12, 2015 opinion and experience of the WCB ENT consultant who reviewed the hearing tests and concluded that:
The screening audiograms from 1992 to 1996 show normal hearing in both ears.
The screening audiogram dated April 26, 2010 shows a rather severe deterioration in the worker's hearing in both ears from 2000 Hz to 8000 Hz.
The audiogram of September 5, 2014...shows an asymmetric hearing loss with the left ear being profound from 1500 Hz and higher.
Noise induced hearing loss is usually symmetrical and the frequencies affected are usually from 3000 to 6000 Hz with recovery at 8000 Hz.
The noise levels provided by the employer do not support excessive noise exposure to account for the workers (sic) profound hearing loss as seen in 2010 and 2014 audiograms.
The worker should be advised to see an ENT specialist for further investigations of his severe asymmetric hearing loss.
As noted, the panel was unable to find that the noise exposure in the workplace was significantly greater for the worker's left ear than his right ear.
Finally, the panel notes that the Policy provides that the worker must have been 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. The evidence does not establish that this noise threshold was met.
The panel is unable to find, on a balance of probabilities, that the worker sustained a NIHL as a result of his job duties with the employer.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 1st day of June, 2015