Decision #24/16 - 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 acceptable. A hearing was held on December 16, 2015to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Decision: Unanimous
Background
In March 2015, the worker filed a Worker Hearing Loss Report with the WCB stating that he first become aware of a hearing problem in 1999 and tinnitus in January 2014. He claimed his hearing loss came on gradually and that he was exposed to loud noise in the workplace over a 24 –year period, on a continuous basis, 8 hours per day.
On March 4, 2015, in a call with a WCB adjudicator to discuss his claim, the worker advised that he had some signs of hearing loss in 1999 when he had his hearing tested at work and that his hearing had gradually decreased since then. In January 2014, he developed tinnitus in both ears but it was worse in the left ear and intermittent. The worker denied having any physical injuries, ear surgery, discharge or infections. He denied any noise exposure outside of work except for occasional use of a lawn mower and snow blower.
The worker related his hearing loss and tinnitus to his past employment. He said noise levels were tested in his workplace a few times and they were very high. He started wearing hearing protection in 1986 at the same time as his employer started doing hearing tests. He wore foam plugs initially, and later was provided with custom ear plugs.
In Claim Notes dated March 11, 2015, the WCB adjudicator outlined information indicating that noise levels on the machines the worker had operated or supervised exceeded 85 dBAs. The adjudicator’s notes set out that the Worker started employment as a machine operator on April 2, 1979 and terminated employment in 2002. The noise levels were measured in 1989.
The file contains hearing test results including audiograms from 1986 to 2014, as well as reports from the family physician dated from January to December 2014, a report from an otolaryngologist dated March 4, 2014, CT scan results dated May 2, 2014 and MRI results dated December 3, 2014. These were reviewed on April 8, 2015 by a WCB Ear, Nose and Throat ("ENT") consultant. In the ENT consultant's opinion, the audiograms from 1986 through to March 2, 2000 showed normal hearing in both ears, but the April 2014 audiogram showed bilateral high frequency sensorineural hearing loss.
On April 17, 2015, the WCB advised the worker that his claim for compensation was denied as the available medical information did not establish that his present hearing loss was related to his employment.
On April 24, 2015, the worker appealed the above decision to Review Office. In a decision dated June 9, 2015, Review Office determined that the worker's claim was not acceptable. Review Office found that the first evidence to show the worker had noise induced hearing loss was in the 2014 audiogram which showed a bilateral high frequency sensorineural hearing loss. As this audiogram was performed 12 years after the worker's exposure to noise, Review Office was unable to establish a causal relationship between his hearing loss and his exposure to noxious noise at work from 1979 to 2002.
On August 8, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on December 16, 2015.
Reasons
Applicable legislation
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.
Where there is a claim for hearing loss due to exposure to noise in the workplace, WCB Policy 44.20.50.20, Noise-Induced Hearing Loss, sets out the criteria for acceptance of such a claim. The Policy sets out that noise-induced hearing loss (“NIHL”) occurs gradually and may not involve a loss of earnings. The Policy 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 Policy goes on to specifically address claims based on a diagnosis of tinnitus, as follows:
“Tinnitus is a perception of sound in the absence of an acoustic stimulus. It may be of a buzzing, ringing, rushing, whistling or hissing quality. It may be intermittent or continuous. The WCB may consider awarding an impairment award for tinnitus when secondary to noise induced occupational hearing loss and there is a history of 2 or more years of continuous tinnitus.”
Worker’s Position
The worker represented himself at the hearing. He stated that his 23 years of employment with the employer had been in a high-noise environment. He pointed to the file notes of March 11, 2015 as establishing his exposure to workplace noise levels of 92-103 dBAs for 8 hours a day and 5 days per week for more than two years. He noted that these levels exceeded the threshold set out in the NIHL policy.
The worker noted he had not participated in any other activities or jobs that would account for his hearing loss. After he left this employer in 2002, he did not work in any noisy environments.
The worker indicated that he began losing his hearing while still on the job in 1999. He pointed to the annual hearing tests conducted on the job site, acknowledging that circumstances of testing were not perfect but nonetheless indicated a shift in his hearing that occurred around 1999 or 2000.
He noted that he did not wear any hearing protection from 1979 until approximately 1986 at which point he began to wear foam plugs. He stated that the workplace was a talking environment that from time to time necessitated removal of hearing protection to facilitate communication.
He first experienced ringing in his ears in January 2014 and began to seek treatment after that time. He was diagnosed with tinnitus and advised there was no cure and he would need to live with it. The worker stated that the impact of tinnitus on his life includes making concentration difficult, agitating him and increasing his sensitivity to noise.
The worker took the position that there was no other explanation for his hearing loss and tinnitus other than the noise exposure in his workplace and stated that the claim should be accepted on this basis.
Employer’s Position
The employer did not participate in the appeal.
Analysis
The issue for this panel to determine is whether the worker’s claim is acceptable. In order for this claim to be successful, we would need to find that the worker suffered from employment-related noise induced hearing loss and that this was the cause of his tinnitus.
The panel heard from the worker as to the nature of his workplace exposure to noise. He described the noise as constant and loud. His exposure to the noise was not consistent throughout the period of his employment. From 1979 until 1992, he stated that he operated a number of manufacturing machines, spending his entire day in a noisy environment. In 1992, he moved to a quality control position which required that he spend his day in a lab as well as conducting process checks on various machines from time to time. He returned to working on the machines in 1999 and continued in that role until he left in 2002. The worker confirmed that from 1986 onward, he used hearing protection in this workplace, with the exception of when the protection had to be removed to facilitate communication.
The worker confirmed that he recalled workplace testing of noise levels taking place at some point in time in the late 1980s and suggested that this may have accounted for the information on the WCB file.
Based on our review of the file and the evidence before us, it is clear that the worker was employed and functioning in a noisy environment between 1979 and 2002. But exposure to noise does not in every case result in noise-induced hearing loss and not all loss of hearing is caused by exposure to noise at work.
The audiogram reports indicate high frequency hearing loss. In 2014, the audiogram indicates an increasing degree of hearing loss at the levels of 4000 Hz, 6000 Hz and 8000 Hz, but the pattern of loss demonstrated by the audiogram evidence is not indicative of noise induced hearing loss. The hearing loss pattern here, as established by the available audiogram evidence, is one of a steady decline as the frequencies increase.
As noted by the WCB ENT consultant, the audiograms from 1986 to March 2, 2000 showed normal hearing in both ears. The worker himself noted those workplace hearing tests were not conducted in ideal circumstances and sometimes were undertaken right after his shift. The April 2014 audiogram showed bilateral high frequency sensorineural hearing loss. These audiogram results are not consistent with a finding of noise induced hearing loss and the WCB consultant notably does not conclude that the worker’s hearing loss is noise related.
With respect to the diagnosed tinnitus, the worker stated that he first noted ringing in his ears in January 2014. Although predominant in his left ear, he experiences it in both ears. The worker noted that his tinnitus fluctuates somewhat. Originally, the symptoms presented mostly in the left ear and would vary. Symptoms came and went initially and only within the past year have become continuous.
As set out in the WCB Policy on noise induced hearing loss, tinnitus is a perception of sound in the absence of an acoustic stimulus. It may be of a buzzing, ringing, rushing, whistling or hissing quality. It may be intermittent or continuous. Tinnitus may be caused by or arise out of NIHL, but it may also arise from other causes. For this reason, the Policy requires that, in order to be ratable, tinnitus must be secondary to NIHL and there must be a history of 2 or more years of continuous tinnitus.
The requirements of the Policy with respect to tinnitus are not met here. The evidence does not support the worker’s claim that his hearing loss is noise induced and therefore we cannot find that the tinnitus is secondary to NIHL. Further, the evidence does not establish a history of 2 or more years of continuous tinnitus.
Having considered all of the evidence before us, we have concluded on a balance of probabilities that the worker’s hearing loss and tinnitus did not arise out of and in the course of his employment. For the reasons noted above, we find that the worker’s claim is not acceptable.
Panel Members
K. Dyck, Presiding OfficerC. Devlin, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 2nd day of February, 2016