Decision #67/16 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by the Workers Compensation Board ("WCB") that he was not entitled to an increase in his permanent partial disability award for hearing loss. A hearing was held on April 5, 2016 via teleconference to consider the worker's appeal.
Issue
Whether or not the worker is entitled to an increase in his permanent partial disability award for hearing loss.
Decision
That the worker is not entitled to an increase in his permanent partial disability award for hearing loss.
Decision: Unanimous
Background
The worker has an accepted claim with the WCB for noise induced hearing loss. Based on audiogram results and other file information, the worker has been provided with a permanent partial disability award for his hearing loss difficulties and the costs associated with hearing aids.
On October 10, 2013, the worker's case was considered by the Appeal Commission to determine whether or not he was entitled to an increase in his permanent partial disability award for hearing loss. On December 3, 2013, the appeal panel determined that the worker was not entitled to an increase to his PPD award. For additional information, please see Appeal Commission No. 156/13.
Subsequent file records showed that the worker requested reconsideration of Appeal Commission Decision No. 156/13 based on new information which consisted of audiogram test results dated April 7, 2014 and March 24, 2015 and a report from the hearing centre dated March 24, 2015. On September 22, 2015, the worker's request for reconsideration was granted and a new hearing was held at the Appeal Commission on March 10, 2016.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act'), regulations and policies of the Board of Directors.
The worker has an accepted claim for work related hearing loss and is seeking an increase in his permanent partial disability award. The accident date for his injury was determined to be December 15, 1984. As a result his benefits are assessed under the Act as it existed at that time which provided as follows:
Permanent disability
4(10) The board may award compensation under this Part in respect of the permanent disability suffered by a workman but without temporary disability.
WCB Policy 44.10.20.10, Pre-existing Conditions, provides, in part, that the WCB will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not a "personal injury by accident arising out of and in the course of employment."
Worker's Position
The worker was self-represented. He outlined his reasons for appealing and referred to his written submission. He also answered questions from the panel.
The worker submitted that the following evidence supports the conclusion that his hearing loss was caused by noise exposure at work:
the audiograms clearly indicate an improvement and stabilization of his ability to hear. This clearly disputes the unproven genetic theory used by the WCB hearing specialist. This is especially important when knowing his age and correspondingly the impact of age-related hearing loss.
the results of numerous audiograms indicate stabilization of his hearing loss after leaving the noisy environment. This is a clear indication that his hearing loss was caused by noise.
the fact that his previous hearing aids, which ceased to be effective in 2011, are again effective 4 years after he stopped work.
sounds and speech are clearer after he stopped working as indicated by word recognition scores on audiograms.
In reply to a question, the worker advised that he had an audiogram in March 2016 and that a copy should have been sent to the WCB. He commented that the audiogram supports the pattern which he said is demonstrated by the appendix to his submission. He provided the panel with the findings of the audiogram. The panel advised that it would obtain a copy from the WCB but invited the worker to provide comment on the new test at the hearing.
The worker referred to a question and discussion at his first hearing dealing with the fluctuation in audiogram findings. He referred to the transcript and provided a further explanation of his position. He commented, in part, that:
If, you know, my tests in October were taken two weeks before the end of the construction season, which meant that I was exposed to noise for six to seven months, steadily until, you know, like, until the tests were taken. Now, the test that was taken right after, or not after, there is an improvement in May because I wasn’t exposed to noise from -- our season stops November 11, Remembrance Day, typically, as a rule of thumb. And from then, and it doesn’t start up again until April, so I was not exposed to any construction noise between October and … almost May. And, you know, from April to May there was a minimal amount. That is why, that is exactly why my hearing had improved.
The worker also stated that he does not think the fluctuation in results was due to an error in pushing the button during the testing.
With respect to word recognition testing, he acknowledged that this was not tested every time he had an audiogram. He was not aware of the reason that word recognition tests are not conducted each time hearing is tested. He submitted that when subjected to construction noise his word recognition was worse than when he was away from construction noise.
In answer to questions, the worker provided a description of the type of work, equipment and worksite he was employed at in 2004 and after.
Employer's Position
The employer did not participate in this hearing.
Analysis
This hearing arises as a result of a decision made under subsection 60.10 of the Act. In hearing this case, the panel conducted a hearing de novo. The panel reviewed the complete claim file, the new information provided by the worker subsequent to his first hearing, and the information and argument provided by the worker at the hearing including his account of the most recent audiogram.
The worker is seeking an increase in his permanent partial disability award for hearing loss. His award was last assessed and increased in December 2004. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker suffered additional noise induced hearing since his last PPD award review in 2005. Following a review of all evidence, the panel is not able to make this finding.
The panel finds that the worker did not suffer additional noise induced hearing loss since his last PPD award review in 2005. The panel acknowledges that the worker had an increase in his hearing loss after 2005 but is not able to attribute this to the worker's employment.
The panel attaches weight to the opinion of the WCB hearing specialist set out in memos on the worker's file. In the memo dated September 27, 2011, the specialist opined that the hearing loss since 2004 is not in keeping with NIHL (noise induced hearing loss). In the memo dated November 5, 2012 the specialist noted, in part, that:
The audiograms of 1981, 1982, 1985 and 1999 have the typical Cookie-Bite appearance with the maximum loss being in the mid-frequency range. This Cookie-Bite appearance is diagnostic of a genetic type of hearing loss and is not diagnostic or typical of noise-induced hearing loss.
The aforementioned audiograms show progressive deterioration involving all frequencies with the maximum loss being at 500, 100, and 200 Hz. If hearing loss then was caused by noise exposure alone, I would have expected the maximum loss to be a t 3000, 4000 and 6000 Hz with recovery at 8000Hz, which was not the case…
The specialist concluded that the history and all the medical information indicate that the worker's hearing loss was not caused by occupational noise induced exposure alone. He noted there was a major co-existing condition that is causing degenerative changes in the hearing organ.
The panel notes that the worker does not agree with this opinion, but finds that this opinion is based on a full understanding of the facts and review of the many audiograms which tested the worker's hearing and is expressed by an expert in occupational hearing loss.
The panel also notes that the more recent audiograms show progressive deterioration involving all frequencies and that the worker's sensorineural hearing loss has accelerated over the past ten years. The panel understands that this is not typical of noise induced hearing loss.
At the hearing, the worker asserted that his hearing has improved. He pointed to the improvement in the speech recognition scores from the January 2012 when he left work to March 2016. The panel notes that no medical explanation is provided for this improvement.
The panel finds, on a balance of probabilities, that the worker is not entitled to an in increase in his PPD for hearing loss.
The worker's appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerR. Campbell, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 11th day of May, 2016