Decision #08/16 - Type: Workers Compensation
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 November 12,2015 to consider the worker's appeal.
Issue
Whether or not the claim for hearing loss isacceptable.Decision
That the claim for hearing loss is acceptable.
Decision: Unanimous
Background
On March 4, 2014, the worker filed a hearing loss claim with the WCB. The worker had been employed as a scale technician since 1977. He reported that he first became aware of a hearing problem at his "last ear check-up - 2012?". He said that he was exposed to occasional noise at work, and his hearing loss came on gradually. He reported that there was no history of deafness or hearing impairment in his family, and attributed his hearing loss to his work experience in general.
On April 8, 2014, a WCB adjudicator documented information from the worker regarding the onset of his hearing loss difficulties, his employment history from 1971 to April 2014, and the areas where he was exposed to loud noises in the workplace.
On September 26, 2014, the WCB adjudicator spoke with a safety and health representative identified by the worker. The safety and health representative confirmed that the worker was one of their service technicians, and attended various plants to repair scales. Scales could be as small as a desktop calculator or the size of a semi truck. Some would be in the office and some on the plant floor. Jobs could take a half hour, a day or a week. The safety and health representative identified certain locations which were "extremely loud." He said that the worker would also have been working in feed mills and grain elevators, where he would have been subjected to the noise from compressors and motors that are always running. The safety and health representative indicated that the worker had been with the employer since the 1970s. He stated that hearing protection had been supplied to the workers since 2003, and that annual hearing tests started in April 2011.
By letter dated November 3, 2014, the worker was advised that his claim for compensation was accepted, as the WCB had determined that he was exposed to noxious levels of noise while working in the Province of Manitoba. The letter stated that a WCB ear, nose and throat ("ENT") consultant had reviewed the file and the hearing test results received, and determined that the loss of hearing in his right ear was 99 decibels and his left ear 134 decibels. The letter went on to conclude that the worker did not qualify for a permanent partial impairment award, but that the WCB would provide coverage for 2 hearing aids.
On February 6, 2015, the accident employer filed an appeal with Review Office stating that it disagreed with the acceptance of the worker's claim. The employer's position was that the worker had not been exposed to noxious noise during the course of his employment.
On April 2, 2015, Review Office determined that the evidence did not support that the worker was exposed to noxious noise levels sufficient to determine that his noise-induced hearing loss had arisen out of and in the course of his employment, and allowed the employer's appeal.
On May 27, 2015, 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.
With respect to claims for hearing loss, the injury can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise.
Claims for hearing loss arising from long-term exposure to occupational noise are adjudicated under WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"). The Policy states, in part, that:
3. Not all hearing loss is caused by exposure to noise at work. A claim for noise-induced hearing loss is accepted by the WCB when a worker was exposed 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. For every increase in noise level of 3 decibels, the required exposure time will be reduced by half.
Worker's Position
The worker was represented at the hearing by a worker advisor. The position which was advanced on behalf of the worker was that his hearing loss was a result of his over 30 years of employment as a scale technician with the accident employer, during which time he was subjected to long-term and repeated exposure to excessive noise levels well above the 85 decibel average.
The worker responded to questions from the worker advisor and the panel, and described the various types of duties he performed over the course of his career, the different environments and spaces he worked in, and the materials he worked with and tools he used in performing his job duties.
The worker advisor submitted that the information on file and evidence at the hearing confirmed that the work environments that the worker attended were extremely loud, and that the noise factor in the work environments themselves was a significant contributor to his noise-induced hearing loss.
It was submitted that the use of power tools was also a large contributor to his noise-induced hearing loss. It was not only that he used power tools, but that he used high impact power tools which were very loud. In addition, a lot of his work was done in confined areas, and it was submitted that using those power tools in a confined work space would greatly increase the already high decibel noise level of the tools.
The worker advisor referred to Policy 44.20.50.20, and noted the Policy confirms that noise-induced hearing loss occurs gradually, often over many years. She submitted that the worker's claim satisfied that criteria. She also noted that the Policy criteria was exposure to hazardous noise for a minimum of 2 years on an average of 85 decibels for 8 hours of exposure on a daily basis or equivalent. She noted that the evidence supported that the average decibel rate for the tools which the worker used exceeded an average of 97 to 100 decibels, and as such, the required minimum exposure time would be reduced to an average of 15 to 30 minutes daily. She submitted that the criteria had been satisfied by the employer's confirmation that the worker used these power tools 30 minutes to one hour daily.
In conclusion, it was submitted that the whole history of the worker's employment must be considered in addressing this issue, not just the final couple of years. In the worker and the worker advisor's view, there was no doubt that the worker was exposed to long-term and repeated excessive levels of noise in the performance of his work duties.
Employer's Position
The employer was represented at the hearing by its Chief Financial Officer. The employer representative stated that the employer disagreed that the worker was exposed to noxious noise as claimed. In the employer's opinion, the noxious noise was very minimal. The Policy refers to a minimum of 2 years based generally on an average of 85 decibels for 8 hours of exposure on a daily basis, and there is not even one day where a technician would come close to that level of exposure.
The employer representative noted that the worker is not the only technician, and that technicians are cycled or rotated through the different jobs. It was submitted that while the worker would have done some installations, he would not have done all of them. For the installations which had been identified, the worker would usually have worked with another technician. A lot of the time, the more junior technician would have done more of the heavy work. The actual use of power tools by a technician would be very minimal, and the worker would not have been using a power tool for 8 hours a day.
The employer representative further noted that for the last 10 years, the employer had been using scales which were already put together by another supplier, and were "pretty much plug and play". She noted that the WCB had asked her to concentrate on what the worker had been doing since 2012. She said that the worker had done maybe 3 or 4 installations since then, and that most of the time he had been doing service agreements, where he would go to a facility with a lot of small bench scales.
In addition, the employer representative submitted that hearing protection has always been available and reduces the levels of noise to which technicians are exposed. A lot of places where there are loud noises also have safety programs and provide additional hearing protection, which technicians have to use when they are on site.
Analysis
The issue in this appeal is whether the worker's claim for hearing loss is acceptable. The claim has been advanced on the basis of long-term exposure to noxious levels of occupational noise resulting in noise-induced hearing loss ("NIHL"). In order for the worker's appeal to be successful, the panel must find that the worker sustained NIHL due to exposure to levels of noxious noise during the course of his employment, as set out in the Policy. The panel is able to make that finding.
The panel spent a considerable amount of time with the worker and the employer assessing the details of the worker's job duties over the course of his employment. Information on file referred to various locations and work environments where the worker would also have been exposed to high ambient noise.
At the hearing, the worker also referred to various tools which he used in the course of his duties, and in particular, a specific powder-actuated fastening tool ("shot action tool"). Documentation filed by the worker advisor provided sound level information specifications for that tool, which specified noise levels of 104 dBA and higher when used to fire studs vertically downwards into a steel plate. The evidence in this case indicated that the tool was in fact used to penetrate high grade steel.
The panel also notes that the evidence at the hearing indicated that the worker was working in enclosed or confined spaces a lot of the time, notably in scale pits with cement foundations. The panel accepts the worker's evidence that sound would resonate off the concrete walls, increasing the sound level pressure at the worker's ears. The panel accepts that the use of the shot action tool in such enclosed or confined spaces is consistent with the onset of NIHL.
In the circumstances, the panel is satisfied and finds, on a balance of probabilities, that there is sufficient evidence to establish that the worker was repeatedly exposed to high levels of noise for shorter periods of time that would meet the threshold requirements of the Policy.
The panel notes that there was conflicting evidence as the availability and use of hearing protection, and a lack of any technical information with respect to any such protection. The evidence also suggests that the use of hearing protection in the various workplaces has evolved over time. The panel accepts the worker's evidence on file and at the hearing that he often performed his job duties without hearing protection.
The worker's file was referred to a WCB ENT consultant for a hearing loss assessment. On September 30, 2014, the ENT consultant concluded that the worker had noise-induced hearing loss. The ENT consultant determined that the worker's hearing loss in the right ear was 99 dB and the left ear 134 dB.
The panel accepts the WCB ENT consultant's medical findings.
The panel notes that the worker's hearing loss is asymmetrical, that it is worse in his left ear than his right. The panel recognizes that it is generally unusual in NIHL cases for there to be a significant difference in hearing loss between the two ears. In the worker's case, the ENT consultant was able to account for that asymmetry or difference, noting that:
The worker indicated that he is/was a right-handed firearm user. This would explain the asymmetric hearing loss with the left ear being worse, unless there is an occupational explanation.
The panel notes that after removing the differential hearing loss in the left ear, there is still a bilateral hearing loss of 99 dB which can be attributed to the workplace. The panel finds, on a balance of probabilities, that the worker sustained a NIHL due to long-term and repeated exposure to workplace noise, as set out in the Policy, and accordingly that his claim for hearing loss is acceptable.
The worker's appeal is allowed.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Harrison - Presiding Officer
Signed at Winnipeg this 11th day of January, 2016