The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the ReviewOffice of the Workers CompensationBoard ("WCB") with respect to the calculation of his recent PermanentPartial Impairment rating for noise induced hearing loss ("NIHL").  A file review was held on May 25, 2015to consider the matter.

Issue

Whether or not the worker's permanent partial impairment has been correctly determined.

Decision

That the worker's permanent partial impairmenthas not been correctly determined.

Decision: Unanimous

Background

In 1996, the worker filed a claim with the WCB for NIHL. His claim for compensation was accepted and in 2002 he was provided with a Permanent Partial Impairment ("PPI") award of 2.4%. The worker continued working and subsequently retired in January 2009.

Based on the results of a March 9, 2009 audiogram, a WCB ear, nose and throat ("ENT") consultant opined on August 20, 2009 that the worker's hearing loss in both ears had significantly deteriorated compared to his last assessment in 2002. The ENT further commented that for the purposes of a PPI calculation, an audiometric assessment would be arranged. On October 21, 2009, the worker underwent a complete audiological assessment at a local hospital facility.

On January 1, 2010, the WCB ENT consultant reviewed the October 21, 2009 audiologist's report and the corresponding audiogram results and the worker's PPI was calculated at 10.8%.

By letter dated February 3, 2010, the worker was advised that he was entitled to a 10.8% PPI as it was found that the average loss of hearing in his right ear was 53.5 decibels while the average loss of hearing in his left ear was 57.25 decibels.

On February 9, 2010, the worker filed an appeal with Review Office stating that the October 21, 2009 hearing test had not been done properly as his hearing loss was much greater than stated. The worker requested that the WCB arrange another hearing test.

On April 10, 2010, Review Office determined that the worker's PPI had been correctly determined and that a second hearing assessment would not be arranged. Review Office noted that the hearing assessment of October 21, 2009 included bone conduction testing which was not done in the hearing assessment of March 9, 2009. There was no evidence on file to support that the hearing assessment performed on October 21, 2009 was not thorough or did not provide accurate results. On March 20, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission is bound by The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors.

This appeal deals with a hearing loss claim. The worker has questioned whether the permanent partial impairment has been correctly calculated.

Subsection 4(9) of the Act in effect on the date of accident provides that the board may award compensation in respect of an impairment that does not result in a loss of earning. Subsection 38(1) provides that the board shall determine the degree of a worker’s permanent impairment expressed as a percentage of total impairment. Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Subsections 38(3) and 38(7) provide for a reduction of the impairment award in certain cases.

The Board of Directors established policy 44.90.10.03, the Permanent Impairment Rating Schedule (the "PPI Policy"). In accordance with this schedule, impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the policy. Pages 21 to 25 of the schedule set out the method for measuring and calculating a hearing loss impairment.

Worker's Position

The worker filed an appeal notice on March 20, 2015, in this notice he advised that his reasons for appealing were:

My hearing has deteriorated so much that I now qualify for a cochlear implant in left ear. This deterioration is due directly from all my years in the autobody repair industry. I believe I am entitled to some sort of monetary compensation because this hearing loss limits me greatly as to what kind of work I can do, and being on a very fixed income I need to do something for my livelihood. Please check your files to see how severe my hearing loss is.

The worker provided a written submission to the Appeal Commission in support of his appeal. The worker wrote, in part:

As stated in my appeal, I feel that my loss of hearing is greatly hampering my ability to find any gainful employment, which I find necessary due to my financial situation, or for that matter, enjoy many of the things that good hearing allows…My ability to hear correctly is greatly reduced by any background noise or by any other conversations going on as well...Loss of hearing has made my life unmanageable and extremely frustrating. Please take this into account in your review.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker's permanent partial impairment has been correctly determined. For the appeal to be successful on this issue, the panel must find that an error was made in calculating the permanent impairment resulting in the worker receiving a different permanent partial impairment award than he is entitled to. The panel found that the amount of the PPI was not calculated correctly, but that the calculation error does not result in the worker's PPI award being increased.

The date of accident for work-related noise induced hearing loss is when evidence shows both exposure and audiogram results that a work-related hearing loss has occurred. In the case before the panel that date was August 6, 1996. Subsection 38(4) of the Act provides that in determining the amount of an impairment award, the amount in subsection 38(2) in effect the day of the accident is to be used. Under subsection 38(3) the amount of the award is reduced by 2% for each year of age the worker is over 45 years at the time the board determines that the worker has an impairment.

On April 4, 2002 a WCB ENT consultant opined that based on a February 12, 2002 audiogram the worker had evidence of a permanent impairment related to his NIHL and qualified for a PPI of 2.4%. File evidence showed the worker was awarded a onetime payment of $466.40. The panel notes there was no calculation provided at that time on the worker's WCB file.

In this case it was determined the worker had a 10.8 % impairment based on the October 21, 2009 audiogram.

The panel notes the October 2009 audiogram was performed by a certified audiologist and accepts the findings contained in the audiogram as reliable for the calculation of the worker's permanent impairment.

The panel finds that the formula for calculating the worker's impairment was correctly applied as required by policy which states: "When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz. In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear…"

The panel then turned their attention to the calculations made by the Payment Assessor. In a memo to file dated February 5, 2010 the monetary amount for the PPI award was calculated as follows:

Total award at 10.8% effective date Oct 21, 2009: $1070.00

Less age reduction at DOA, Original 2.4%: $530.00

Corrected age 1995 - 1946 = *49 - 45 = 4 x 2% = 8% x $530.00 = - $42.40

Amount of increase to 10.8%: $1070.00 - $530.00 = $540.00

Less age reduction at Oct 21, 2009:

Age 63 - 45 = 18 x 2% = 36% x $540.00 = $194.40

Less Total age reductions $42.40 + $194.40 = - $236.80

Actual value at Increase Oct 21, '09: $1070 - 236.80 = $833.20

Less 2.4% PPI issue date May 7, 2002: - $466.40

Increased balance due at 10.8%: $366.80

As a result, the worker was provided with payments of $466.40 (May 7, 2002) and $366.80 (February 5, 2010) for a total payment of $833.20.

The panel finds the February 5, 2010 calculations contained two errors when the age reduction was made. The first error was the corrected age factor that should have been applied when evidence of impairment was first found on February 12, 2002. The second error was the ensuing calculation for the decision made by the case manager on May 6, 2002 which should have been $530.00 - $106.00 for a onetime payment of $424.00 on May 7, 2002.

The panel finds the payment calculations should have been as follows:

Original award of 2.4% effective date Feb 2002: $530.00

Less age reduction at original award

Age Feb 2002 - 1946 = *55 - 45 = 10 x 2% = 20% x $530.00 = - $106.00

Award payable May 7, 2002: $530.00 - $106.00 = $424.00

Total award at 10.8% effective date Oct. 21, 2009: $1070.00

Amount of increase to 10.8%: $1070.00 - $530.00 = $540.00

Less age reduction at Oct 21, 2009:

Age 63 - 45 = 18 x 2% = 36% x $540.00 = -$194.40

Increased award payable Oct. 21, 2009: $540.00 - $194.40 = $345.60

The corrected calculations provide a total payment of $769.60 ($424.00 + $345.60) which results in an overpayment on February 5, 2010 of $63.60 ($833.20 - $769.60). As per Policy 35.40.50 Overpayments of Benefits which states overpayments will not be pursued if they resulted from an administrative error by the WCB, or adjudicative reversal. As both these conditions apply in the current case the panel finds no overpayment should be collected.

In his letter of April 27, 2015 the worker noted that he is considering a cochlear implant. The issue of his entitlement to this procedure is not before the panel and we make no findings on this issue.

For foregoing reasons, we find the worker's permanent partial impairment has not been correctly

determined, the worker's appeal is accepted with no financial consequence.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 6th day of July, 2015