Decision #03/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was not entitled to a permanent partial impairment award in relation tohis left ear compensable injury. A file review was held on November 10,2015 to consider the matter.
Issue
Whether or not the worker is entitled to a permanent partialimpairment award.
Decision
That the worker is not entitled to a permanent partialimpairment award.
Decision: Unanimous
Background
This case was the subject of an appeal panel hearing on March 6, 2014 to determine whether or not the worker's claim for noise-induced hearing loss was acceptable. In Appeal Commission Decision No. 43/14 dated April 14, 2014, the appeal panel determined that the worker's claim was not acceptable for bilateral noise-induced hearing loss, but was acceptable for an acute injury to the left ear resulting from an accident arising out of and in the course of employment. The appeal panel noted that in making that decision:
...the panel does not make any determination as to the amount of benefits to which the worker is entitled as a result of this acute injury. Although we have found that the worker suffered a Staph Aureus infection as a result of the slag in his ear, there is not enough information on file to determine whether the worker suffered any permanent hearing loss or required the 2012 left tympanoplasty surgery because of the infection. The panel specifically notes that the worker has a history of chronic ear infections so further investigation is needed to determine the extent to which the February 2010 infection caused any permanent damage to his ear.
The worker's file was subsequently reviewed by Compensation Services. By letter dated October 16, 2014, the worker was advised that the WCB was accepting responsibility for his 2012 left ear surgery, but that the February 10, 2010 work injury did not result in entitlement to an impairment award or a left hearing aid.
On December 15, 2014, the worker requested that Review Office reconsider the October 16, 2014 decision that he was not entitled to hearing aids. On January 2, 2015, with reference to WCB Policy 44.120.10, Medical Aid, Review Office decided that the worker was entitled to a left hearing aid.
On January 28, 2015, the worker requested that Review Office also reconsider the October 16, 2014 decision that he was not entitled to a permanent impairment rating for hearing loss in his left ear.
On April 8, 2015, Review Office determined that there was no entitlement to a permanent partial impairment award. While recognizing that the worker experienced an increased loss of hearing due to his workplace accident, Review Office concluded that that increased loss of hearing was not of a sufficient degree to qualify for a permanent partial impairment award within the parameters of the legislation and the applicable WCB policy. On June 2, 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 and its panels are bound by The Workers Compensation Act (the "Act") regulations, and policies of the WCB's 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. Subsection 4(9) provides that the board may award compensation for an impairment that does not result in a loss of earning capacity.
The method for calculating compensation for an impairment is set out in section 38 of the Act. Subsection 38(1) provides that "[t]he board shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.
The WCB Board of Directors has established Policy 44.90.10.01, Permanent Impairment Rating Schedule (the "PPI Policy"). Pursuant to the PPI Policy, 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 PPI Policy. Where a worker had a pre-existing condition, the PPI Policy provides that the worker is eligible for an impairment award "based on the difference between the new combined rating and the rating assigned to the pre-existing condition."
Worker's Position
The basis of the worker's appeal is set out in the form of appeal which he filed on June 2, 2015. The worker referred in his appeal to portions of the January 2, 2015 Review Office decision with respect to the left hearing aid. He stated that he followed WCB advice right from the start and has nothing to show for it but a hearing aid. He stressed that he lost his hearing from a workplace injury, and that this is a permanent loss, so he should be entitled to a cash settlement. The worker relied on and emphasized the statement in the January 2 Review Office decision (relating to the left hearing aid) that: "It would appear from the file information, the WCB accepted that the worker had a decline in his hearing resultant of the compensable accident, its injury and its surgical treatment. The deterioration in his hearing since the accident is therefore a compensable injury." (worker's emphasis)
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker is entitled to a permanent partial impairment ("PPI") award. In order for the worker's appeal to succeed, the panel must find that the Act and/or WCB policies were not correctly applied in this case. The panel is unable to make that finding.
The appeal panel in Appeal Commission Decision No. 43/14 determined that the worker had an acceptable claim which was limited to an acute injury to his left ear. The worker's claim was not accepted for bilateral noise-induced hearing loss. The result of that decision, which is final and will not be repeated here, is that there was no compensable injury to the right ear, and any loss of hearing in that ear is not ratable. It is therefore only the loss of hearing in the worker's left ear that is attributable to the acute injury to the left ear which is to be assessed when determining the worker's entitlement to a PPI award.
The PPI rating is to be determined in accordance with the PPI Policy. The method for measuring and calculating a hearing loss impairment is set out at pages 22 to 26 of the Schedule which forms part of that Policy. The PPI Policy expressly provides that any loss or impairment due to a pre-existing condition is to be excluded from the calculation of a PPI award. Accordingly, when calculating the worker's permanent hearing loss in this case, any pre-existing hearing loss, being loss which is not attributable to his compensable incident or injury, must be subtracted from the worker's total hearing loss.
On October 7, 2014, a WCB ear, nose and throat consultant ("ENT consultant") assessed the worker's entitlement to a PPI award. The ENT consultant calculated the worker's hearing loss based on a comparison of audiogram results from two tests conducted before the accident and a test conducted after the accident and surgery, and concluded that:
The audiograms of 2007 and 2009 (pre-accident) are identical. They show a pre-existing hearing loss in the left ear.…
These two audiograms (pre-accident of Feb. 2010) are compared to the recent audiogram of Sept 22, 2014. The comparison shows a total of 55 db deterioration in the left ear….
Based on the difference in the comparison, the hearing loss in the left ear is not ratable….
The panel accepts the ENT consultant's conclusions. The panel has reviewed the calculations and finds that the worker's loss of hearing due to his compensable injury was calculated correctly and in accordance with the criteria set out in the PPI Policy.
The panel therefore finds, on a balance of probabilities, that the change in the worker's hearing as a result of the worker's compensable injury is 55 decibels. That change or loss of hearing, being less than 100 decibels, is considered to be a 0% impairment under the PPI Policy. As such, it does not meet the minimum or threshold criteria for a PPI award under the Act.
In the result, the panel finds that the worker is not entitled to a PPI award at this time. The worker's appeal is dismissed.
Panel Members
L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Harrison - Presiding Officer
Signed at Winnipeg this 7th day of January, 2016