The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for noise induced hearing loss was not compensable. A hearing was held on May 6, 2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In March 2013, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL") which he related to his 42 year career as a pilot. The worker reported that he first became aware of a hearing problem five years ago and that his hearing loss came on gradually. The worker said he wore ear muffs during his 42 year career.

On March 18, 2013, an ear, nose and throat ("ENT") specialist stated that the worker had been aware of progressive hearing loss for about five years. The worker was turning the TV up and had bilateral tinnitus in the quiet. There was no history of recurrent ear infections and the family history was negative for hearing loss. The worker had an extensive history of noise exposure through his work as a pilot and flew very noisy aircraft. An audiogram showed a bilateral mild mid tone sensorineural loss sloping to severe in the high tones. It was more pronounced in the left ear than the right. The ENT specialist suspected that the majority of the worker's hearing loss was secondary to noise exposure but because there was some asymmetry, an MRI was suggested to rule out an acoustic neuroma.

The WCB case manager contacted a number of employers identified by the worker to verify work history and noise exposure.

In a decision dated May 9, 2013, the worker was advised that his claim for compensation was not compensable as the WCB was unable to 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.

Subsequent to the May 9 decision, the WCB obtained additional information from a co-worker who indicated that he worked with the worker from April 1985 to February 1996 and that the use of a headset was mandatory at that time. It was reported that the worker was trained as a first officer on the Curtis C-46, Douglas DC-3 and Beech King Air 200 aircraft. Another co-worker also confirmed that the worker would have flown a C46 for a few years which was quite noisy. He indicated that the Douglas DC3 was comparable to the Curtis C-46 and the Beech King Air 200 was quite quiet. The use of a headset was probable but was not mandatory.

In a further decision dated April 14, 2014, the WCB advised the worker that following review of the additional information, no change would be made to the original decision as the WCB was not able to establish exposure to noise at or above 85 decibels.

In June 2014, the worker provided the WCB with a report from an audiologist dated May 28, 2014 which stated:

His hearing loss is most likely due to noise exposure and aging. It is well known that pilots, especially the older generation, sustained noise induced hearing loss because of the high noise levels that they were exposed to. Any sound that causes physical pain is usually an indication that it is too loud for the ears and is possibly causing permanent damage. Regular exposure at 110 dB for a minute or more has been documented as causing permanent hearing loss. The writer could not find out the dB levels that the C-46 attained during takeoff. In my professional opinion, the majority of [the worker's] permanent hearing loss was a result of his many years as a pilot.

In a decision dated June 5, 2014, the WCB advised the worker that the May 28, 2014 report was considered and that the WCB was upholding its original decision to deny the claim.

At the worker's request, his claim was considered by Review Office on July 8, 2014. Review Office stated that after reviewing all file information, it was unable to find the evidence to support that the criteria listed in the WCB's hearing loss policy had been met. Therefore it was concluded that the worker did not have an accident as defined by subsection 1(1) of the Act.

On December 9, 2014, the Worker Advisor Office requested Review Office to reconsider its previous decision based on new evidence which included MRI results dated September 9, 2013, information regarding the headset used by the worker and noise levels for airplane pilots.

On February 2, 2015, Review Office upheld that the worker's claim for compensation was not acceptable. In making its decision, Review Office placed weight to the following factors:

• the report from the ENT specialist who noted that the worker's hearing loss was more pronounced in his left ear than the right.
• the MRI results which showed no evidence of acoustic neuroma. Review Office did not find that the worker's asymmetrical hearing loss was compensable.
• the worker was exposed to various loud noises out of work which included the use of a firearm, power tools and recreational vehicles. Even with hearing protection, hearing loss could still occur with firearm use as the noise they produce was typically over 140 decibels.
• as a number of employers were no longer in business, Review Office was unable to find the evidence to support that the worker was exposed to noxious noise while working which meets the criteria of the WCB's hearing loss policy.
• weight could not be placed to the article submitted from April 1970 as the study was done 17 years earlier than when the worker used the equipment.
• the worker advisor commented about the worker's exposure to noise while he was outside of the aircraft and while using his headset for communication. Review Office found that due to the variable noise levels and frequency of this occurrence, it could not account for this in relation to the worker's hearing loss.

On February 5, 2014, the Worker Advisor Office 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 NIHL Policy states that noise induced hearing loss occurs gradually and may not involve a loss of earnings. It notes that not all hearing loss is caused by exposure to noise at work and sets the threshold for acceptance of a NIHL 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 represented by a worker advisor. The worker answered questions raised by his representative and the panel.

The worker advisor submitted that the worker's claim is acceptable because the evidence establishes the worker was exposed to noise levels above 85 decibels.

The worker advised that he became aware of his hearing loss over a period of time. The hearing loss became evident away from work because at work he wore a headset and could adjust the volume.

The worker said that over his career of 45 years he worked for several airlines and flew a variety of propeller driven aircraft. The noise levels of the planes varied. Planes were noisiest when taking off. He acknowledged that he spent a portion of his career in a management position and also flew corporate aircraft for a large company.

With respect to flight time, he was limited to a maximum of 150 hours per month, 300 hours per a 3 month period, to a maximum of 1200 hours per year. His flight time was generally less than 150 hours each month. At the employer (AM) which he said had the noisiest planes, he said his flight time averaged about 80 hours each month.

The worker said that his duty days were up to 14 hours long; this could include flight time, flight preparation, pre-flight inspections, loading and unloading cargo, and covering engines and wings at conclusion of a flight. He said that he did not wear hearing protection during the pre-flight inspections or while performing the other duties. He also said that he would work for 5 to 6 days a week.

The worker reviewed the various aircraft that he piloted. He noted that certain models were worse than others. He said that one model, in particular, where he did not use a headset caused physical pain.

The worker said that he initially fabricated his own headset and later, commencing 1979, used a specific brand of hearing protection.

The worker said that other aircraft on the runway or taxiing on the ramp created significant additional noise.

Employer's Position

The worker was employed by several firms during his career as a pilot in Manitoba. None of his employers participated in the hearing. His employer for the period June 2010 to November 2011 provided a letter outlining general information regarding noise exposure to pilots, information on the type of plane flown by the worker, and information on the worker's employment with the employer. The worker's monthly flight time over the term of his employment with this employer, excluding his service in September, October and November of 2011 which was minimal, was on average less than 60 hours per month.

Analysis

The issue in this appeal is whether or not the worker's claim for NIHL is acceptable. The worker argued that he sustained a compensable NIHL as a result of long-term exposure to noxious levels of occupational noise in his job as a pilot.

In order for the worker’s appeal to be successful, the panel must find that during the course of the worker's employment in the aviation field, the worker sustained NIHL due to exposure to the levels of noxious noise as set out in the NIHL Policy.

Considering all the evidence, on a balance of probabilities, the panel finds that the evidence does not establish that the worker suffered a NIHL caused by long-term workplace noise exposure as required by the NIHL Policy and accordingly his claim is not acceptable.

The panel considered the written evidence submitted on the file including two of the literature articles submitted by the worker and his representative. The first article entitled "Airplane Cockpit Noise Levels and Pilot Hearing Sensitivity" gave audiometric evidence on sound levels in two of the aircraft the worker flew. The methodology used in gathering the exposures included use of an audiometer for testing during taxiing, run up, takeoff, climb and cruise. The data was collected at ear level in the center of the cockpit. The Panel finds that this is the best evidence available to determine the noise levels.

The methodology noted that "Significant noise levels were not encountered during taxi" and were not included. They also note that exposure times were estimated. The noise levels and exposure times were: for takeoff 118 dBA at 5 minutes per day, for climb power 98 dBA at 1 hour a day, and for cruise power 89 dBA at 5 hours per day. The second aircraft was 104 dBA for takeoff, 95 dBA for climb and 91 dBA for cruise. This was helpful in establishing Time Weighted Averages for exposure.

In making this decision, the panel notes that the worker's flight time was limited by regulation. The effect of this is to prevent the worker from meeting the NIHL minimal exposure periods for his flight time. The panel acknowledges that flight time was not the only time that the worker was exposed to noise but it was considered by the worker to be the worst exposure he sustained at work.

The second article entitled "Hearing and Noise in Aviation" provided some insight into a pilot's hearing protection. When high levels of sound greater than115 dBA are found, a combination of earplugs with earmuffs offers the greatest protection. The reduction afforded by barriers was shown to be a minimum of 30 dB. This, in practice, is used at 50% effectiveness given fit, skin oil content, hair growth in the canal etc. Therefore, the A weighted decibels would be reduced by 50% to account for the worker's earmuffs and headsets he wore, particularly during takeoff and climb when he would have been required to be in contact with Air Traffic Control.

The panel considered the noise which the worker was exposed to while performing duties outside the aircraft, but is unable to attribute any specific noise levels to this work.

The panel notes noise exposure is affected by a worker's proximity and distance from the noise generators and barriers between them that exist. In this regard, the worker identified that he was inside the cockpit while flying but on the ground was exposed to other aircraft in the vicinity. Also, most of the exposures were from taxiing aircraft passing by him and when he was loading freight. It was the worker's evidence that during the loading he was inside his aircraft. This presented a number of barriers including the walls of the craft and indirect line to the noise exposure. Noting the prior quoted noise survey which found that significant noise levels were not encountered during taxiing, the panel finds those passing aircraft would have minimal exposures for the worker.

The panel also notes that the worker used hearing protection throughout his career. The panel acknowledges that the extent of hearing protection provided by the headsets has not been established, but notes that the brand used by the worker for most of his career was noted for its superior noise protection. The panel accepts that hearing protection, generally, reduces the level of exposure to noxious noise.

The NIHL 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 evidence does not meet the time weighted average exposure required by the policy.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of June, 2015