Decision #33/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB")that his claim for compensation was accepted. A hearing was held on February 3, 2016 to consider the worker'sappeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Decision: Unanimous
Background
On July 29, 2014, the worker filed a claim with the WCB for noise induced hearing loss. The worker said he reported his hearing problem to his employer 20 minutes after it happened. The worker indicated that his hearing loss came on suddenly from banging steel at an outboard motor repair facility. This occurred in 1995-1996.
The worker reported that over the years there was continuous exposure to excessive workplace noise and that he wore both plugs and muffs at his various jobs since 2010.
A WCB adjudicator spoke with the worker by telephone on August 14, 2014 to discuss his claim for hearing loss. The worker advised that he first noticed ringing in his ears at work when using a sledgehammer and was hitting steel against steel for about 25 minutes. It made a sharp pinging noise and he noticed ringing in both ears afterwards. He also noticed hearing loss in his right ear and thought it was related to the way his head was turned. He reported it to his employer but never filed any paper work or sought medical treatment. His hearing had gradually deteriorated since then. The worker provided the adjudicator with details of his employment history starting in 1988 onwards.
In a further telephone conversation on September 24, 2014, the worker advised his adjudicator that he was exposed to loud noise while working with a specific employer and that he did not always wear hearing protection because it was sometimes not available. He indicated that the ice edger was very loud, and he operated it for 20 minutes, twice a day for 7 months. He said he also operated lawn mowers, weed whackers, compressors, saws and nail guns. He sometimes used his own chain saw to cut down a tree, but wore hearing protection. He estimated his exposure to loud noise was 50% of his shift.
The worker indicated that he was also exposed to loud noise with a second employer while operating a weed control spray truck. It did not have a muffler for the 2 seasons he operated it, and he did not wear any hearing protection. He could not carry on a conversation with someone in the truck without yelling.
File records show that WCB case management contacted various employers that were identified by the worker to verify the worker's employment history and his exposure to noise in the workplace. Medical information consisted of an audiogram dated July 24, 2014 and a report from the worker's treating physician dated October 28, 2014.
In a decision dated December 18, 2014, the worker was advised that his claim was not acceptable as the WCB was unable to establish work related exposure to noise levels at or above 85 decibels for a sufficient period of time to establish a claim for noise induced hearing loss. On December 28, 2014, the worker appealed the decision and his file was referred to Review Office for consideration.
On February 24, 2015, Review Office confirmed that the worker's claim was not acceptable. Review Office noted that the WCB adjudicator was unable to confirm the worker was exposed to direct prolonged noise exposure while at work between 1993 and 2002. For three seasons between 2003 and 2005 while employed as a spray truck driver, the worker was exposed to noise while the spray pump engine was running and the exposure was periodic and seasonal. Between 2009 and 2010, the worker was employed as an operator and ice technician with two separate employers. The noise exposure was limited below the noxious noise level amount (85 decibels or higher) and hearing protection was provided by the employers.
After considering the worker's employment history while working in Manitoba, Review Office was unable to find, on a balance of probabilities, that the worker was exposed to the level and duration of noxious noise that was required by WCB policy. On August 17, 2015, the worker 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 WCB 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 44.20.50.20.01, Hearing Loss, sets out the criteria for acceptance of such a claim. The Hearing Loss Policy states, in part:
1. Noise induced hearing loss occurs gradually – often over several years – and most hearing-loss claims do not involve a loss of earnings. For these reasons, it can be difficult to determine when the impairment began. For the purposes of this policy, the date of the accident will be:
a) The date a loss of earnings has occurred, or
b) The date of an audiogram which shows evidence of noise-induced hearing loss.
…
3. Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is exposed to noxious 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.
The issue to be determined by this panel deals with whether the worker’s hearing loss is compensable.
Worker’s Position
The worker was self-represented. He outlined his reasons for appealing the WCB decision that his hearing loss claim is not acceptable.
He described himself as a "jack of all trades" and explained that he has worked at many jobs. The worker told the panel:
There is a lot of places I worked at where welding, grinding took place. I've used jackhammers on a lot of my jobs, worked in a gravel pit where crushers were operating, having to work on them while they were running, so you can only imagine what the noise of that would be, having rocks crushed beside you.
The worker provided approximate dates that he worked at the various jobs. The panel asked the worker about the various jobs that he worked at over the years. He said that he wore hearing protection at some jobs and that, in his opinion, some jobs caused or contributed to his hearing loss. The following jobs were discussed:
· Outboard motor repair shop: 1995 and 1996 - seasonal.
-primary duties involved repairing damaged propellers and custom making stainless steel skeg protectors for motors. He described the various duties and in answer to questions identified the time he spent on each task and the noise exposure for each.
-the worker did not use hearing protection and no hearing protection was provided by the employer.
-he thought this job caused his hearing loss.
· Aggregate - rock crushing firm - 2001-2002
-primary duty involved using a loader to gather rock, placing rock into a rock crusher and moving the aggregate.
-loudest duty was operating the rock crusher.
-operated gas powered water pumps.
-about 1 hour of loud noise each day.
-supplied own hearing protection (ear muffs).
· Grain/seed firm: - 2002
-seed production.
-provided own hearing protection (ear plugs).
-cleaning out large metal bins.
-operating augers, forklifts, tractors, feed fillers, conveyor belts.
-noise from release of air pressure while product is manufactured.
· Municipal weed spraying: 2003-2005 - 5 months each year - 40 hours per week but hours fluctuated
-drove a truck with a weed sprayer with a gas-powered pump. The pump was in
the back of the truck and the exhaust was directed out the passenger side of the truck. The pump did not have a muffler. It ran while the spraying took place, which the worker estimated was 3/4 of the work day. The worker mainly drove the vehicle. He wore no hearing protection. He said the noise was greater when the window was open.
· Indoor skating Rink- 2009 -2010 - Indoor rink ice technician - 40 hours per week but hours fluctuated
-operate ice edger. The worker said that it did not have a functioning muffler when he worked at this job. He said that being in an arena, the sound echoed 10 times what was coming out of the machine. He was taught to listen to the sound of the engine when it's cutting the ice, and hear what the machine is doing, to determine whether you're going too deep or it's not going deep enough into the ice. It was operated about three to four times a week for about 20 minutes at a time, about three times a day. The arena was open from September to May.
-driving the ice making machine and using a hammer to prevent the auger from clogging.
-operating lawn mowers, weed whackers, compressed nail guns and chainsaws. He usually used his own hearing protection on the outdoor jobs. He thought that the use of compressors, nail guns, skill saws contributed to his hearing problem.
-hearing protection was not available at this job, (this is contrary to the information provided by the employer's representative.)
-worker disagreed with the employer's position that the indoor duties were shared equally between 3 staff. The worker said that he did all the ice edging.
· Peat moss company: 2009 - short term position
· Park maintenance: 2009 - 5 month term
-placing buoys.
-garbage pick-up and driving garbage truck (about 3 hours every morning).
-general maintenance including grass cutting, weed whacking.
-chain sawing (3 hours per week).
-the employer provided hearing protection.
The worker advised that he has acquired hearing aids.
In closing the worker stated that:
... I mean I did get this damage from being at work, and I feel because I obtained
this being at work that WCB has a responsibility to look after me for that damage.
Employer's Positions
The employer on record for the claim did not participate in this appeal.
Analysis
The issue for this panel to determine is whether the worker’s claim for hearing loss is acceptable. In order to find the claim acceptable, the panel must find, on a balance of probabilities, that the worker's hearing loss arose out of and in the course of his employment.
The panel notes that the employment dates the worker provided varied slightly from the dates provided by Service Canada. The panel used the Service Canada history of employment records where there was a conflict as we considered them to be more accurate. The panel notes that this has no impact on the decision made by the panel.
The panel asked the worker about the various jobs which he has performed since entering the workforce. As noted above, the worker provided detailed information on each job including a description of the noise hazard, the use or non-use of hearing protection, the length of exposure to the noise hazard, and the term of the worker's employment at each job.
The worker changed positions often, working at more than 20 employers over the last 27 years. Much of his work was seasonal. The exposure was for varying periods of the day but rarely, if at all, for a full 8 hour period. At many of the worksites, he was provided with hearing protection. There is a lack of information on the level of exposure at the various worksites.
The worker advised that he does not think he damaged his hearing while working at a bus manufacturer. He noted that this is where he had his first hearing test and was told that he had a hearing loss. He also advised that he does not think he injured his hearing working at the grain seed business.
The worker identified several of the worksites which he believed caused or contributed to his hearing loss. The panel considered each and found:
-Outboard motor repair shop: the panel found that the exposure at this worksite, based upon the worker's description, was not continuous. The noise level varied and was caused by grinding and hammering metal. There was no noisy equipment that operated for long periods of time.
-Aggregate - rock crushing firm: the work was outside and the worker provided his own hearing protection. He spent very little time over the course of a day near the rock crusher.
-Municipal weed spraying: this was a seasonal position. The worker indicated the loudest exposure was from the noisy pump behind the cab. The worker confirmed that it was possible to carry on conversation while in the cab. The pump ran for periods of approximately 2 hours and then had to return to base to obtain supplies.
-Park maintenance: this was a 5 month term. Hearing protection was used. No long periods of noise exposure were noted.
-Indoor skating rink: A term position. Limited noise exposure while operating the ice edger and ice making machines.
Based upon the available information, the panel is not able to find that the worker's noise exposure meets the requirement of the WCB Hearing Loss policy. The panel is unable to find that the worker was exposed to noxious 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 the reasons noted above, we find that the worker’s claim for noise-induced hearing loss is not acceptable.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 29th day of February, 2016