The Appeal CommissionThe Workers Compensation Act of Manitoba

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.

Under WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), it states:

Hearing loss claims that are the result of trauma or a single exposure to occupational noise are adjudicated in the same manner as other workplace injuries...

and claims for hearing loss arising from long-term exposure to occupational noise are adjudicated, in part, as follows:

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 assisted by a union representative, who made a presentation on his behalf. The worker answered questions from his representative and the panel.

The representative advised that the claim was being advanced based on both long-term exposure to noxious noise and a specific traumatic incident in October 2013.

It was submitted that the relevant noise level, being the noise level for the hammering process which had been identified, had been measured at 99 to 101 decibels. While that process generally took 10 to 15 minutes on average, there were unusual circumstances in the workplace that led to much longer exposures. Problems with a supplier had led to huge amounts of overtime. Employees, including the worker, were working very long hours. The worker had therefore been exposed to even higher levels of noise throughout the day for the past year.

It was submitted that in his position, the worker was responsible for going around the different areas to assist and verify the work being done and he had exposure. Communication was key, and people in the area, including the worker, were in the habit of removing their right ear plug to communicate with others. In addition, depending on what work was being done, ear plugs did not have to be worn all the time, and people would be caught off guard when noise started up without warning.

The representative noted that the worker would have been maybe 3 to 30 feet away from the hammering, but when the process started without warning, he would have been caught off guard and exposed. The process involved using a steel hammer to hammer metal into metal and was very loud. The part being worked on was like a drum, and due to the shape of the part, the noise would come directly towards the worker.

It was submitted that the worker was exposed to high noise levels in this area, and that the incident in October 2013 was like the straw that broke the camel's back. The worker was caught off guard, without warning, and was fully exposed. He acknowledged that he had been experiencing ringing in his ears prior to the incident, but it would go away. After the incident, he started noticing the ringing again, but this time it did not go away.

Employer's Position

The employer was represented by an advocate and by the employer's Disability Management Specialist.

The employer's position was that the claim was not acceptable under WCB policies, based on either long-term exposure to excessive noise or a single traumatic event at work.

The advocate submitted that the standards for claim acceptance with respect to NIHL are clear, with very quantifiable and measurable noise level requirements. It was submitted that the worker was not exposed to noise at the minimum levels which are required under Policy. The worker was in an area where hearing protection is required. He was not standing right beside the part which was being worked on for the whole time the particular procedure was being performed. The noise from the procedure was intermittent and the worker had the opportunity to move away from being directly exposed to it.

It was submitted that while the worker stated that he would usually remove his right ear plug or both ear plugs when he had to speak with workers, the period of time that he would have to have his ear plugs out would be minimal. The fact that he removed his ear plugs for a short period of time to communicate is understandable, but the information provided did not show that there was consistent or enough exposure to meet the test for exposure to noxious noise and NIHL.

It was also submitted that the medical criterion for NIHL was not satisfied. According to that criterion, the medical information must confirm that the hearing loss as shown on the test results is indicative of noise exposure. The WCB medical advisor clearly stated, however, that the configuration of the worker's audiogram was not supportive of NIHL.

It was submitted that the worker had attempted to identify a specific incident, but that it is difficult to believe that an incident of that nature would cause trauma and such a significant shift in the audiometric findings and that he would be the only one in the area to experience it. The worker would have been in extreme pain and would have sought medical attention immediately, and not waited until April to do so. Such an event would have been investigated, but there was no report. It would also have affected both of the worker's ears, not just the one, and it was submitted that the fact the hearing loss was to the one ear only in itself rules out a traumatic exposure which would allow for acceptance of the claim.

Analysis

The issue in this case is whether the worker's claim for right-sided hearing loss is acceptable. The claim has been advanced based on both long-term exposure to noxious levels of occupational noise resulting in NIHL and an acute traumatic incident.

For the worker's appeal to be successful, the panel must find that the worker was either exposed to levels of noxious noise during the long-term course of his employment, as set out in the Policy, or suffered a single workplace trauma. After considering all the information on file and the worker's evidence at the hearing, the panel is unable to make either of these findings.

The worker described the hammering operation in some detail at the hearing. The hammering process is the loudest part of the work being done in his area. It involves hammering a particular type of fastener or bolt into a unit, one at a time. The person holds the bolt with one hand, like a nail, and hits it with the hammer probably 3 or 4 times. There are usually 2 people doing this work side by side, and the entire hammering process would typically take between 8 and 10 minutes to complete per unit. Other work was also done on a unit at that station before it would move to the next station and the next unit would come in. The time gap between doing one set of hammering and another would typically be 4 hours, but could be shortened by adding more people or hours to the shift. The worker said that they would generally work on 108 units per month, but in October 2013 they were doing about 142 units per month due to overtime and more individuals working on the line, and this had been ongoing for the past year or more, up to almost 2 years.

The worker said that he was responsible for taking care of an area where there were 20 to 22 workers, and would move around the whole department area during his shift. He would give help to workers who were doing the fastening work maybe twice a week, and would be wearing hearing protection then. He might also be sitting at his computer which is close to the area where the hammering is done, and they could start hammering without warning. He said that they are only required to wear ear protection for operations that are loud, and that in an 8-hour time period, he would probably wear ear plugs 5 to 6 hours a day.

He said that when the hammering started in October 2013, he was caught off guard. The unit they were working on is shaped like a bell and was facing towards him, so the sound resonated in his direction. Information on file indicated that the worker had reported that he was approximately 10 feet from the hammering when it started without warning. He said that he noticed the ringing in his ears within the first couple of hits. This had happened a few times in the 27 years he had worked there, but this time the ringing never went away. He said that if he did not have his ear plugs in, he would usually put them in within a couple of hits if possible. He did not think he put them in right away during the October incident, but that he cupped his hands over his ears and went to the safety area which was not very far away and where there was a box of plugs.

In our analysis, the panel first considered the claim under the NIHL provisions. The worker's submission and evidence were focused on the hammering process. The worker was asked about other parts of the job, but no other tasks were identified where he would have been regularly exposed to noise levels in excess of 85 decibels for any extended length of time. The panel notes the noise level with respect to the hammering process was 99 to 101 decibels on infrequent peak levels for short-term durations. The evidence establishes that the worker would be moving throughout the department's various areas. Based on the whole of the evidence, the panel finds that the worker was not exposed to noxious noise continuously, and that it was only infrequently that he would get close to any such noise.

The panel notes that the Policy criteria state the worker must have been exposed to noxious noise at work for a minimum of two years, based generally on 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 accepts the WCB ENT specialist's review of the worker's audiogram and opinions that the configuration of the audiogram was not supportive of noise-induced hearing loss.

The panel finds, on a balance of probabilities, that the worker did not sustain an NIHL as a result of his job duties with the employer.

The panel then gave consideration to the claim for an acute injury resulting in the hearing loss in his right ear in October 2013.

The worker's hearing loss is in his right ear only. The panel notes the opinion of the WCB ENT specialist that it would be assumed that the noise exposure from a distance of anywhere from 3 to 50 feet away from the hammering would affect both ears equally. The WCB ENT specialist opined that the worker "has a unilateral hearing loss of unknown etiology." The panel attaches significant weight to the opinion of the WCB ENT specialist.

The panel finds that a limited number of impacts at 99 to 101 decibels, at a distance of 10 feet from the source, would not be causative of acoustic trauma in the worker's right ear, given that only one ear was affected and the length of the exposure.

In light of the foregoing, the panel finds that the evidence does not support that the worker has an acceptable claim for hearing loss based on an acute traumatic injury at work in October 2013.

The panel finds, on a balance of probabilities, that the worker does not have an acceptable claim for right-sided hearing loss.

The worker's appeal is dismissed.