The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the WCB decision to accept the worker's claim for noise induced hearing loss. On May 4, 2016 a hearing was held at the Appeal Commission to consider the employer's appeal.

Issue

Whether or not the claim is acceptable

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In August 2004, the worker filed a claim with the WCB for hearing loss difficulties which he related to his noise exposure in the workplace. The worker's claim for compensation was denied as initial adjudication was unable to confirm work related noise exposure in Manitoba in excess of 85 decibels for eight hours per day over a two year period. On April 7, 2008, Review Office determined the claim was acceptable.

In a letter dated June 26, 2008, the WCB advised the worker that he was entitled to a permanent partial impairment award of 11.30% for his hearing loss as well as full coverage for the costs associated with two hearing aids.

In another letter dated June 26, 2008, the employer was advised that the worker's claim had been accepted and that the firm was responsible for a portion of the claim costs which amounted to 88.88%.

On February 8, 2016, the employer's representative appealed Review Office's 2008 decision to accept the worker's claim. On May 4, 2016, a hearing was held at the Appeal Commission to consider the employer's appeal.

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.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") notes 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.

The worker has an accepted claim for noise induced hearing loss. The employer is appealing the WCB Review Office decision to accept this claim. The primary issue involves causation, specifically whether the worker had sufficient noise exposure while working for the employer and other employers to cause a noise induced hearing loss in accordance with the Policy.

Employer's Position

The accident employer was represented by its WCB Coordinator. He advised that the employer disagrees with the Review Office decision of April 7, 2008 to accept the worker's claim for NIHL while working for the employer.

The employer representative noted that the worker was an employee of the employer from approximately February of 1972 to April of 1997. He noted that what seems to be the basis for the acceptance or partial acceptance as regards the employer is the very short period of time the worker indicated he was working in a camp, supervising a crew out in the bush. The employer representative noted that noisy equipment was used at the camp, specifically chainsaws, but that the worker did not operate the equipment. He also noted the worker reported that at another worksite, operated by the employer, there were large steel doors which were consistently clanging when opened and closed.

The employer representative said that prior to working with the employer, the worker advised that he worked in other areas such as: welding, where there were steel presses and hammers; heavy construction where he was exposed to welding, hammers, drills and land clearing with a bulldozer; and oil field construction where he’s exposed to diesel motors, drilling rigs and similar equipment.

The employer representative noted the Review Office decision stated that the worker's employment with the employer "was not considered to have exposed him to noise in excess of 85 decibels. The decision then concludes that the evidence established that the worker had a minimum of at least two years of exposure at 85 decibels when taking into account his work with various construction companies, his work as a employee included and work performed as a welder in 1997."

The employer representative submitted that the information "doesn’t meet the test of an acceptable claim. Certainly not one that would attribute cost to the [accident employer]."

Worker's Position

The worker was represented by a worker advisor and accompanied by his wife. The worker advisor indicated that the worker provided the WCB with a copy of his employment history from the Canada Pension Plan, beginning in 1966. The worker also sent in a letter to the WCB in 2006 describing 10 work positions where he was exposed to noxious noise. She noted that 9 of the positions were covered by Workers Compensation.

Regarding employment with the employer, the worker advisor confirmed that the worker worked for the employer in 1981 at a work camp in the bush. She said that there were as many as 18 chainsaws running at the same time, as well as revving of chainsaws while being repaired. The worker confirmed that he did not operate the chainsaws, but was present as a supervisor.

The worker's representative acknowledged that the WCB said that the employer would not be responsible for the claim as it did not meet the requirements of the Act when it comes to hearing loss. It was her opinion that the Review Office decision took into consideration the 12-month period from 1965 to 1966 that the worker was employed by another employer and the exposure with the other employers.

The worker gave evidence about the various jobs he performed in Manitoba which were listed on the record of employment.

The worker confirmed that he started working for the employer in 1972. He started working at the bush camp in 1981 and worked there for two years. He said that lumber was cut at sites within a short distance of the camp. The crew cut lumber for the whole day, and limbed and loaded the lumber. The worker advised that he worked a four day on and four day off shift. He would go out with the crew for two days, but also spent the other days in the camp doing paper work. The worker advisor advised the worker never wore hearing protection at any of the positions he identified.

The worker advisor submitted that:

…our interpretation of the Review Office decision, is that they took into consideration the 12 months that they had confirmed where there was exposure to noxious noise from 1965 to 1966. And then they considered the accumulative effect of some of the other positions.

Analysis

As noted, the accident employer is appealing the WCB Review Office decision that the worker's claim for noise induced hearing, arising in part from employment with the employer, is acceptable. For the accident employer's appeal to be successful, the panel must find that during the course of his employment, the worker was not exposed to hazardous noise at work for a minimum of two years, based generally upon an average of 85 decibels for eight hours of exposure on a daily basis as set out in the Policy.

The panel is able to make that finding. The panel finds, on a balance of probabilities, that the worker did not sustain a hearing loss arising out of and in the course of his employment with Manitoba employers due to exposure to levels of noxious noise, and accordingly finds, on a balance of probilities, that his claim for hearing loss is not acceptable.

The worker's position was that he was exposed to noise while working for a variety of employers in Manitoba including the accident employer. The worker submitted that he sustained significant noise exposure while working for the employer, particularly while supervising the tree cutting work in a bush camp over a period of two years.

The panel attaches weight to the evidence provided by the employer and the worker regarding the noise exposure at the work camp and during the worker's other duties with the employer. With respect to the noise exposure at the work camp, the panel finds that:

• the exposure to noise of the chain saws was intermittent, the worker was at the tree cutting area for two of four days per shift

• the worker had a supervisory role and walked through the cutting areas, so he was at varying distances from the individuals who were operating the chain saw

• the chain saws were not operated continuously

• the crew did not have to meet production quotas

• the crew was cutting small trees for fence posts

The panel finds that the noise exposure while at the camp was likely limited to about five hours per day for two days per week with a six day cycle of no noise exposure at or above 85 dBs. Also, during the chainsaw exposure, the worker was not exposed to consistent levels at or above 85 dBs, as he was a supervisor on the site.

Regarding the noise exposure at the other facilities operated by the employer, including the clanging of doors and noise in specific areas, the panel finds that the evidence does not support a finding that the worker was subjected to noxious noise at these other facilities sufficient to meet the levels set out in the Policy.

Regarding the noise exposure at other Manitoba employers, the panel finds that the evidence does not support a finding that the worker was subjected to noxious noise as required by the Policy.

The employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of June, 2016