Decision #64/16 - Type: Workers Compensation
Preamble
The worker disagreed with the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment rating for hearing loss was 5%. A file review was held on April 6, 2016 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial impairment rating has been correctly calculated.
Decision
That the worker's permanent partial impairment rating has been correctly calculated.
Decision: Unanimous
Background
On April 29, 2015, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL") which he related to his work as a self-employed contractor. The worker reported that he first became aware of a hearing problem 8 to 10 years ago and that his hearing loss came on gradually.
File records contain audiogram results dated April 1, 2015. In a July 7, 2015 opinion, a WCB ear, nose and throat ("ENT") consultant states that the configuration of the audiogram was suggestive of a combined NIHL and presbycusis.
On July 15, 2015, a registered audiologist provided the WCB with a report stating that the worker, age 74, complained of mild ringing in both ears with the right ear being worse than the left. The worker found it very hard to follow a conversation because he could not make out what people were saying. The worker denied any dizziness or otalgia.
The audiologist reported that test results or audiometric data indicated a normal sloping to severe sensorineural hearing loss bilaterally. Speech reception thresholds agree with audiometric data. Speech discrimination scores were 84% in the right ear and only 36% in the left when presented at his most comfortable listening level in quiet. They declined to only 24% in the right ear and 28% in the left when presented at a + 10 signal-to-noise ratio. Tympanometry indicated normal middle ear compliance bilaterally. Acoustic reflexes were present in both ears at appropriate levels. Otoscopy appeared clear bilaterally.
The consultant stated that these results suggested a significant hearing loss bilaterally and the worker would benefit from bilateral amplification if motivated to use hearing aids. Even with hearing aids, the worker would have trouble distinguishing speech in noisier environments.
On July 15, 2015, the WCB ENT consultant reviewed the test results, calculated the decibel loss to whole body impairment and concluded that the worker was entitled to a total permanent partial impairment award of 5%. The consultant also approved the claim for two hearing aids.
On July 27, 2015, the worker was advised that his claim for NIHL had been accepted and he was entitled to a 5% permanent partial impairment ("PPI") award for his hearing loss.
By letter dated July 29, 2015, the worker was advised that based upon the WCB's Impairment Rating Schedule and subsection 38(2) of the Act, the amount of his PPI award was calculated at $1,300.00 for each full 1% of impairment up to and including 30%. Based on 5% total impairment, the worker was entitled to a one-time payment of $6,500.00.
On September 28, 2015, the worker filed an appeal with Review Office regarding the PPI award. The worker noted that a friend of his received $10,000.00 from the WCB for hearing loss and yet he only received $6,500.00. He said his hearing started to deviate in his early 50s and he felt he had been treated unfairly.
The October 26, 2015 decision of Review Office stated that it had reviewed the calculations performed by the WCB ENT consultant and found that the worker's PPI rating was calculated correctly. On November 25, 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 is bound to follow The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors. Section 4(9) of the Act provides that the board may award compensation for an impairment that does not result in a loss of earning capacity. The degree of impairment is calculated, as set out in s. 38 of the Act, as a percentage of total body impairment.
The WCB Board of Directors established Policy 44.90.10, the Permanent Impairment Rating (the “Policy”) to determine the impairment ratings. The Policy provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the Rating Schedule attached as Appendix A to the Policy. Whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Schedule.
Impairment awards are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity, and it is not intended to compensate a worker for any pain or suffering flowing from an injury.
Worker's Position
The worker filed a notice of appeal setting out his basis for appeal from the decision of the Review Office. The worker stated that the impairment finding of 5% is not sufficient and that he estimates his total impairment as “more like 25%.” The worker requested that the decision of the Review Office be overturned as he experienced “a huge amount of trouble” with his hearing loss, well in excess of the 5% total body impairment found. He noted that he was unable to continue with his business due to his hearing loss.
Employer's Position
The worker was self-employed.
Analysis
The sole issue for this panel to decide is whether the permanent partial impairment rating of 5% has been correctly calculated. For the worker's appeal to succeed, we must find that the Permanent Impairment Rating Policy was not properly applied to the facts of this case in establishing the PPI rating.
The worker’s position is that is that his impairment rating should be greater than 5% because in his experience, the impact is much greater and he knows of other individuals who have received higher awards. Further, he points to the impact of the hearing loss on his ability to communicate effectively with others and states that he was unable to continue in business because of the hearing loss.
However, the panel notes that the Policy sets out the process of calculating a permanent impairment rating with respect to hearing loss is based solely upon audiometric results. The individual worker’s reported experience of hearing loss is not considered. Similarly, the use of comparisons with results achieved by other workers is also not considered as a valid measure of another worker’s impairment.
While the worker has suggested that his hearing loss began when he was in his fifties, we have no evidence from a certified audiologist in the form of audiograms noting any hearing loss prior to the 2015 reports on file.
The only audiometric findings considered by the panel are set out in the July 15, 2015 report of the registered audiologist, which were reviewed by the WCB ENT consultant on the same day. These are the same findings used by the WCB to calculate the worker’s permanent impairment rating.
The process the WCB must follow to calculate an impairment award is set out in Schedule A to the Impairment Rating Policy. The calculated rating represents the percentage of the worker’s impairment as it relates to the worker’s whole body. The impairment rating is not related to loss of earning capacity and is not intended to compensate a worker for any pain or suffering flowing from an injury.
The specific provisions related to calculation of a permanent impairment rating in respect of hearing loss are found in Chapter 14 of the Schedule which sets out a three-step process:
Calculate the percentage of hearing loss in each ear;
Calculate the combined percentage of hearing loss;
Convert the loss of hearing to an impairment of the whole person.
Step 1: Percentage of Hearing Loss in Each Ear
Hearing levels at 500, 1000, 2000 and 3000 Hz are determined and added together for each ear.
One’s ability to hear tends to lessen with age (known as “presbycusis”) and the WCB compensates workers for hearing loss caused by occupational noise but not age. Given this, where a worker is over the age of 60 years, the hearing level totals for each ear will be adjusted by deduction of 2 dB for each years to ensure that only noise related hearing loss is considered. To adjust for presbycusis, the number of the worker’s years over the age of 60 is multiplied by two and that product is then deducted from the sum of the hearing level values for each ear.
These totals for each ear are then compared to Table 14-1 to determine the percentage of hearing loss in each ear. Where the level of hearing loss falls between values on the chart, the level is rounded to the nearest 5 dB of hearing loss.
In this case, the July 15, 2015 report of the registered audiologist sets out the following findings:
Left Ear Right Ear
500 Hz 15 dB 15 dB
1000 Hz 50 dB 30 dB
2000 Hz 50 dB 60 dB
3000 Hz 65 dB 65 dB
Using the formula set out in the Schedule A, these values are totaled for each ear and then adjusted downward for age related hearing loss. The worker, at the time of the July 2015 audiological assessment was 74 years of age.
Left Ear Right Ear
Total: 180 dB 170dB
Minus
(2 x Worker’s
Years Over 60) -28 dB -28dB
= Adjusted Value 152 dB 142dB
Table 14-1 is used with the adjusted values to calculate a percentage of hearing loss for each ear. The adjusted values are rounded to the nearest 5 dB:
Left Ear: 152 Rounded to nearest 5
150 18.8%
Right Ear 142 Rounded to nearest 5
140 15%
Step 2: Combined Percentage of Hearing Loss
Following the first step, Schedule A sets out that the binaural hearing impairment (total hearing impairment in both ears) is calculated using the following formula:
Total % = ([5 x % hearing impairment in better ear] + % hearing impairment in poorer ear) / 6
Applied to this worker’s hearing impairment, the total binaural hearing impairment is calculated as follows:
((5 x 15%) + 18.8%) / 6 = 15.6%
Step 3: Convert Hearing Loss to Whole Person Impairment
Hearing is only one component of overall bodily function. Even in a circumstance of complete loss of all hearing, the impairment rating cannot exceed 60% impairment of the whole person.
The calculated rate of binaural hearing loss must therefore be converted to a proportion of impairment of the whole person. Schedule A sets out that the total hearing loss is converted to a value that reflects the percentage of whole person impairment using the Table 14-2.
Where total binaural hearing impairment is between 13.2% and 15.9 %, as in the worker’s case, Table 14-2 sets the value of whole person impairment at 5%.
Having carefully reviewed the audiometric evidence before us and having considered the application of the Permanent Impairment Policy to the evidence, we are satisfied that the total impairment rating for the worker’s Permanent Partial Impairment was correctly calculated at 5%.
The worker’s appeal is therefore dismissed.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 12th day of May, 2016