Decision #101/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for noise induced hearing loss was not acceptable. A hearing was held on May 25, 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 November 20, 2015, the worker filed a claim with the WCB for noise induced hearing loss. The worker reported that he first became aware of a hearing problem after his retirement. He said his hearing loss came on gradually and that the noise at work was continuous. The worker noted that he has worked in the central office switch room with the same employer for 36 years.
On November 27, 2015, the worker spoke with a WCB adjudicator by telephone and answered questions related to his employment history, the nature of his hearing loss difficulties and his non-occupational noise exposure. The worker noted that he had a sudden loss to his hearing in his right ear in 2003 following a battle with West Nile Virus. The virus affected his balance and his right ear. The worker confirmed that he had his hearing tested recently (November 19, 2015) and that this was the one and only hearing test he has had. He denied any annual hearing tests at work.
In a decision dated December 3, 2015, Compensation Services advised the worker that his claim for noise induced hearing loss had been denied as the available information did not establish work related exposure to noise at or above 85 decibels for a sufficient period of time to meet the WCB threshold for noise induced hearing loss. On December 31, 2015, the worker appealed the decision to Review Office.
On January 25, 2016, Review Office confirmed that the claim was not acceptable as it was unable to find a causal relationship between the worker's hearing loss and his work environment.
In reaching its decision, Review Office noted that the worker's position from 1956 to 1992 was a central office technician. While performing these job duties, the worker indicated that he "was exposed to noise from the mechanical switching equipment and step by step switches." Review Office indicated that based on information supplied by the employer i.e. noise exposure levels, the noise exposure did not meet the policy criteria as all noise levels in the areas where the worker worked were below 85 decibels.
Review Office noted that in the 1980s, the worker started testing the backup diesel engines once per month and that hearing protection (ear muffs) was always worn. Noise levels from the diesel rooms measured 96 to 110 decibels.
Review Office acknowledged that the worker was exposed to noise; however, given that he wore hearing protection, it found that his noise exposure would have been further decreased. It also considered the length of the noise exposure and found the noise exposure would be intermittent. As such, Review Office indicated that it did not meet the criteria outlined by policy.
On February 2, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
The worker is appealing the WCB decision that his claim for hearing loss is not acceptable.
In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(1) of the Act, 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.
Long term hearing loss claims are adjudicated under the ''occupational disease" provisions of the Act. Subsection 1(1) (c) defines an "accident" as including an occupational disease. This subsection later defines occupational disease as: "a disease arising out of and in the course of employment and resulting from causes and conditions:
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;"
Where there is a claim for hearing loss due to exposure to noise in the workplace, WCB Policy 44.20.50.20, Noise-Induced Hearing Loss, sets out the criteria for acceptance of such a claim. The Policy sets out that noise-induced hearing loss ("NIHL") occurs gradually and may not involve a loss of earnings. The Policy notes that not all hearing loss is caused by exposure to noise at work and sets the threshold for acceptance of NIHL claims by the WCB as exposure 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.
Worker's Position
The worker was self-represented. He advised that he disagreed with the WCB Review Office decision. He submitted that the WCB criteria for assessing noise exposure in the workplace does not adequately take into consideration the effects of long term exposure.
The worker advised that he worked for the employer for 36 years performing the same or similar duties on a full time basis. He described his workplace and the type of work he performed.
he worked at several different workplaces but performed the same work at each location.
the workplaces varied in size and could be as large as 150 feet by 150 feet interior dimensions.
in larger workplaces during the day shift, there could be 7 or 8 staff performing the same duties.
duties included monitoring, testing, repairing and tweaking equipment using small hand tools which did not create noise.
noise was caused by the equipment, specifically 'crossbar' and 'number 5' switches. The worker agreed with the employer's information that the crossbar switches were louder than the other switches
switches were nosiest at times when "traffic" on the switches was busiest, for example during normal business hours on week days. When traffic dropped off, the ambient noise in the workplace lessened such as on evenings, nights and weekends.
he generally worked five days a week 8:00 AM to 4:30 PM but also worked evening and night shifts.
seven of the eight hours per day was in the equipment bay area, subject to the noise that would be in excess of 87 percent of his day, not 40 percent as suggested by the employer.
he did not dispute the noise level assessments submitted by the employer.
after 1990 - he advised that the equipment was updated to digital switches where the main noise was air circulation devices as well as the diesel generators which were tested on a monthly basis. He advised that hearing protection was worn when testing the generators. These tests were performed monthly. The worker advised that he was not exposed to noise when he was away from the workplace and after his retirement.
Employer's Position
The employer did not participate in the hearing but had provided the WCB with information on the noise level testing for the areas where the worker was employed during his term.
Analysis
The issue in this appeal is whether or not the worker's claim for NIHL is acceptable. The worker submits that his NIHL is due to long-term exposure to noise in the workplace.
In order for the worker’s appeal to be successful, the panel must find that during the course of his employment with the accident employer, the worker sustained hearing loss due to exposure to the levels of noxious noise at levels as set out in the Policy. The panel finds, on a balance of probabilities, that the evidence does not establish that the worker suffered a NIHL caused by long-term workplace noise exposure, and accordingly his claim is not acceptable.
In the panel's view, the noise level survey provided by the employer does not support a finding that there was excessive noise exposure in the workplace. The employer conducted noise surveillance and advised that the noise levels in the workplaces, prior to 1990, were in the range of 73 to 83 decibels at the equipment bay with cross bar switches and 68 to 78 decibels at the equipment bay for step by step switches.
The panel notes that the Policy provides 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 eight hours of exposure on a daily basis. The evidence does not establish that this noise threshold was met.
The panel notes that the worker did not challenge the accuracy of the noise level survey submitted by the employer. The worker's main concern was that the sound levels do not adequately recognize his long term exposure (36 years) to noise, albeit less than the 85 decibels noted in the policy.
The panel also notes that the worker did not notice a hearing loss until after he had retired in 1992.
The panel is unable to find, on a balance of probabilities, that the worker sustained a NIHL as a result of his employment with the employer and concludes that the worker's claim is not acceptable.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 29th day of July, 2016