The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on March 22, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable

Decision: Unanimous

Background

On June 8, 2015, the worker filed a hearing loss claim with the WCB. The worker reported that he first became aware of a hearing problem 9 years ago and that his hearing loss came on gradually. He said that he underwent ear surgery about 9 or 10 years ago and had ringing in both ears. The worker reported that the noise at work was continuous and that he occasionally wore hearing protection.

A WCB adjudicator spoke with the worker by phone on June 15, 2015 to discuss his claim. The worker said the surgery about 9 or 10 years ago was to rebuild his right ear drum. There was no accident. He had been experiencing ringing in both ears, 80 to 90 percent of the time, for 6 to 8 or more years. The worker reported that he helped on a grain farm until he was 20 years old and operated a tractor and other equipment. He shot a gun here and there on the farm, a 22, and was a left-hand shooter. Regarding his employment history, the worker confirmed that he worked as a maintenance man in 1984, and started driving truck and delivering propane in 1985. He was also a mechanic for 3 years.

File records showed that the WCB obtained audiogram test results from 2014 and 2015 which were reviewed by a WCB medical consultant. The accident employer also confirmed that the worker was in their employ from 1985 to 2008 and April 29, 2011 to the present.

By letter dated August 7, 2015, the WCB informed the worker that his claim for compensation was denied based on the WCB's opinion that his hearing loss was due to hereditary or genetic factors and not to a work-related noise exposure. On May 8, 2015, a worker advisor acting on the worker's behalf appealed the decision to Review Office.

On November 20, 2015, Review Office determined that the worker's claim for noise-induced hearing loss was not acceptable. Review Office stated that it was unable to substantiate that the worker's hearing loss would relate directly to his workplace activity. Review Office further stated that it was unable to substantiate that the required level of noxious noise of 85 decibels for 8 hours per day for a minimum of two years had existed. On November 23, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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 WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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.

It is noted in WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") that permanent hearing loss can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise. With respect to a workplace event, the Policy 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…

With respect to prolonged exposure to excessive noise, the Policy notes that not all hearing loss is caused by exposure to noise at work, and states:

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 self-represented, and was accompanied by his wife at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that his hearing loss was related to his employment as a mechanic and truck driver. He said that he has been delivering bulk propane to various different sites and operations within a 200 mile radius of the city for more than 30 years. When he started, 90% of the trucks had no air conditioning and he had to keep the windows cracked open in summer because it was so hot in the cabs. There was a lot of wind noise. Some of the trucks were also very noisy inside.

The worker said that he did the bigger end of the propane delivery. He would drive a tractor trailer to places such as mine sites and asphalt plants which were very noisy and where it would sometimes take from 2½ to 3 hours to pump off a load. He said that some of the pumps were also very noisy. When pumping the propane, he had to stay near or inside the truck. He would walk around the truck or up to 10 or 20 feet away, but it was still very noisy. He noted that the newer trucks are now also required to have an emergency shutdown (ESD) system with a beeper that sounds every 4 to 5 minutes and is fairly noisy.

The worker said that he could not understand why his claim had been denied when his doctor said there was no question that he qualified for compensation. He also noted that another person who had done the same work as he for about the same length of time had no trouble having his claim accepted.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue on this appeal is whether or not the claim is acceptable. The claim has been advanced on the basis of long-term exposure to noxious levels of occupational noise resulting in noise-induced hearing loss ("NIHL"). For the worker's appeal to be successful, the panel must find that the worker sustained NIHL due to exposure to levels of noxious noise during the course of his employment, as set out in the Policy. The panel is unable to make that finding.

The panel notes that the Policy criteria state that the worker must have been 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. The panel is unable to find, based on the evidence, that this noise threshold has been met in this case.

At the hearing, the panel spent a considerable amount of time reviewing with the worker the details of his job duties over the course of his employment.

With respect to the worker's reference to wind noise from driving with open windows, the evidence indicated that the worker would open the windows just enough to keep comfortable. There is nothing to indicate that the noise from the open window would have met the 85 decibel threshold. The panel further notes that this would have been seasonal and only related to 4 or 5 months of the year, and that wind noise would not have been a factor in respect of the last 8 or so years, as the new trucks were equipped with air conditioning.

The panel considered the noise which the worker was exposed to at various sites during the pumping process, but was unable to attribute any specific noise levels to the work or the work sites, or to identify continuous exposure for a sufficient length of time as required under the Policy.

The panel notes in this regard that the worker's evidence was that he did not really have a set route. He was not sent to the same job site every day, and would not spend the entire day at a site. He listed a large variety of sites and operations he would deliver to, including stores and residences where people have propane tanks for their fireplaces. He would usually work a 10-hour day, in which time he would travel an average of 450 to 500 km outside the City or 150 km inside the City.

The worker had indicated that the loudest parts of his job involved deliveries to mine sites and asphalt plants. He said that at mine sites, there would be fans which would pump heat a mile or two underground and were very noisy. He said that the propane tank would be within 150 to 200 feet of the fans, and it would sometimes be very noisy depending on where the wind was coming from. If he was dumping a whole tractor trailer load at the site, it could take two hours, during which time he would be exposed to that noise. He said that if it was cold, he would very often hop back in the truck, and go back out periodically to check and make sure there were no leaks. The worker said that 2 years ago, he would have been going to the mine sites maybe 2 to 4 times a week.

With respect to asphalt plants, he said that asphalt companies set up mobile plants for highway work and he would deliver propane to be used in mixing the asphalt. There is a burner and a drum which turns, and the whole site is very noisy. The propane tank would usually be at least 50 feet away from the burner. As a leak would be very dangerous, he would stay more around the truck. He would wear hearing protection most of the time. The worker said that they would be going out to the asphalt plants just about once a day in the summer.

The worker referred to other sites or operations that could also be noisy, including building sites where there would be drilling and hammering, and operations where crop dryers or grain dryers were being used, in the fall. No specifics, however, were provided.

Having carefully considered the evidence as to the worker's exposure history, the panel finds, on a balance of probabilities, that the workplace exposures identified by the worker did not meet the WCB Policy threshold of two years of continuous exposure to the specified levels of noxious noise.

In the circumstances, the panel is unable to find that the worker sustained a NIHL due to long-term and repeated exposure to workplace noise, as set out in the Policy. The panel therefore finds, on a balance of probabilities, that the worker does not have an acceptable hearing loss claim.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 17th day of May, 2016