The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no basis to increase his Permanent Partial Disability rating and award. A file review was held on May 16, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to an increase in his Permanent Partial Disability rating and award.

Decision

That the worker is not entitled to an increase in his Permanent Partial Disability rating and award.

Decision: Unanimous

Background

The worker filed a claim with the WCB on March 11, 1996 for noise induced hearing loss that he related to being exposed to loud noise in the workplace. His claim for noise induced hearing loss was accepted and benefits were paid to the worker which included a Permanent Partial Disability ("PPD") award of 11.3% effective July 28, 2005 and later a readjustment to 6.4% based on audiogram results dated November 26, 1996.

On October 1, 2014, the worker's claim was the subject of a file review at the Appeal Commission as the worker disagreed with the effective date of his PPD award and the 6.4% rating. Under Appeal Commission Decision No. 127/14 dated October 9, 2014, the appeal panel ultimately determined that the effective date of his PPD award and the rating of 6.4% were both correct.

On May 8, 2015 the worker underwent further hearing tests which were reviewed by a WCB ear, nose and throat ("ENT") consultant. On June 27, 2015, the consultant stated

"Comparison between Nov. 2012 and May 2015 audiograms shows a very minimal average deterioration of 1.7 dB in the right ear and 5 dB in the left ear. This degree of deterioration is not significant and does not justify replacement of the hearing aids."

Based on the WCB medical opinion, the worker was advised on June 30, 2015 that the deterioration in his hearing was not significant and did not justify early replacement of his hearing aids.

In September 2015, the worker advised the WCB that he wanted his hearing re-tested as he was contemplating surgery related to cochlear implants.

By letter dated September 11, 2015, the worker was advised that the WCB would not authorize further hearing tests by an audiologist, as his hearing evaluation of May 8, 2015 confirmed a minimal deterioration in his hearing from the 2012 audiogram. As he had not been exposed to work related noise since 1992, there was no rationale to provide further testing at this time.

The worker then asked the WCB to determine whether he was entitled to a change in the percentage of his PPD rating given that he had further deterioration his hearing.

On September 23, 2015, the WCB advised the worker that the WCB did not compensate for deterioration of hearing after a PPD award has been rated unless it can be established that the deterioration was due to further exposure to noise in the workplace. As he had not been exposed to work related noxious noise since 1992, there would be no reassessment of his PPD. The WCB also advised the worker that since he had not been exposed to noise in the workplace since 1992, there would be no consideration given to cochlear implants.

On November 4, 2015, Review Office considered an appeal by the worker regarding the decision dated September 23, 2015. Review Office concluded that since the worker had not been exposed to noxious noise in the workplace beyond 1992, the WCB was unable to attribute his hearing loss to his employment. Review Office found that the worker's hearing loss deterioration was not compensable and that he was not entitled to an increase in his PPD rating and/or award. On December 15, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

In dealing with this appeal the appeal panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

As noted in Appeal Commission Decision 127/14, the worker’s hearing loss claim was filed in 1996 and with an accident date in 1987. Accordingly his benefits are assessed under the Act as it existed at the date of the accident. The Act at that time provided that payment of compensation for permanent disability (PPD) was under subsection 32(1) of the Act, which read as follows:

Compensation for permanent partial disability

32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five per cent of his average earnings.

For the purpose of calculating a PPD, the WCB Board of Directors has established Policy 44.90.10.02 which incorporates a Permanent Impairment Rating Schedule as Appendix A. A version of this schedule was in effect at the time of the worker's injury and the development of his permanent impairment.

The WCB Board of Directors has also established Policy 44.20.50.20.02, Hearing Loss, which deals with accidents arising between May 29, 1985 and March 31, 2000. This policy provides, in part, that:

2. For claims to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half).

The worker is appealing the WCB decision that he is not entitled to an increase in his PPD rating due to deterioration in his hearing loss.

Worker's Position

The worker attached a written statement to his Appeal of Claims Decision form. His statement provided, in part:

…Section 44.20.50.02 article 6 paragraph b. of the said policy deals with P.P.I. wage calculations that are dealt in a letter dated August 6, 2014 from Compensation Services. Evidence in the letter shows that the Board is not complying with an Appeal Commission order number 127/14, rendered October 9, 2014...

Employer's Position

The employer account has been closed; accordingly the employer did not participate.

Analysis

The issue before the panel was whether the worker is entitled to an increase in his Permanent Partial Disability Rating and award. For the worker's appeal to be approved, the panel must find that the worker has had further exposure to noxious noise in the workplace which caused a worsening of his hearing loss and an increase in his impairment. The panel was not able to make this finding.

The panel finds, that the worker is not entitled to an increase in his PPD award. The panel understands that hearing loss due to exposure to noise only worsens with additional exposure to noxious noise in the workplace. The information on the worker's claim file indicates that the worker ceased working in a noisy environment in 1992. The panel finds that any deterioration after this date is not due to his work. Deterioration due to non-work causes, such as aging ,is not compensable.

The worker's appeal is dismissed.

Panel Members

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

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of June, 2016