Decision #125/16 - 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 June 9, 2016 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
On May 20, 2015, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL") that he related to his employment as an assembly technician and his work experience in general. The worker reported that he first became aware of a hearing problem a long time ago and that he reported it to his employer sometime between 1996 to 2000. The worker said his hearing loss came on gradually and that he has ringing in both ears. He said the noise at the workplace was continuous.
On May 21, 2015, a WCB adjudicator contacted the worker to discuss his claim. The worker stated he was 58 years old and over the last nine years he had been working seasonal employment. The worker denied any illness/conditions with the exception of measles as a child. The worker said his last employer provided muffs but they were not always worn or mandatory. At the age of 20, he started to hunt deer and would go out for a couple of days a season. He had not hunted for the past 8 or 10 years. He was a left handed shooter and no hearing protection was worn. The worker said he was with the armed forces from 1974 to 1977. He was a radio operator and did training in target shooting but muffs were worn.
The worker provided the adjudicator with details regarding his employment history. He worked as a press operator between 1985 to 1986, an assembly technician between 1986 to 2000 and a sheet metal technician between 2000 to 2003. Regarding seasonal work, the worker said he worked as a machine operator and a farm labourer between 2004 to 2015.
The WCB obtained audiogram results dated 1986 and 1999 which were reviewed by a WCB ear, nose and throat ("ENT") consultant.
On August 24, 2015, the WCB advised the worker that his claim for NIHL was not acceptable. The adjudicator referred to the WCB ENT consultant's opinion that the 1986 and 1999 audiograms confirmed normal hearing in the left ear and a sensorineural dip at 6000 Hz in the right ear. This dip represented noise induced hearing loss and can be attributed to left handed firearm user (shadow effect). Occupational noise induced hearing loss was typically bilateral and symmetrical in nature. Based on subsection 4(1) of The Workers Compensation Act (the "Act"), the adjudicator was unable to establish that the worker's hearing loss was the result of noise exposure in the workplace.
On September 14, 2015, the worker wrote the WCB to advise that he was appealing the decision to deny his claim. The worker contended that his hearing damage was related to continuous noises (i.e. bucking rivets) during the course of his daily duties with a specific employer.
On September 16, 2015, Review Office referred the worker's claim file back to Short Term Claims to conduct a further investigation with respect to the worker's hearing loss difficulties.
In a further decision dated October 27, 2015, the WCB advised the worker that the initial decision of August 24, 2015 remained unchanged. The adjudicator noted that annual hearing tests from 1986 to 1999 indicate normal hearing with the exception of his right ear which can be explained by firearm use. Upon entering employment in June 1986, a baseline hearing test was completed. When leaving employment in August 1999, his hearing was re-tested. The results confirmed normal hearing in the left ear and a gradual decrease in the right. The notes documented by the tester confirmed that he wore hearing protection. There were also entries on test results which confirmed that the cause of his right ear hearing loss was related to hunting/fire arm use. The adjudicator noted that occupational noise induced hearing loss was typically bilateral and symmetrical in nature. The adjudicator indicated that she was unable to establish that the worker was exposed to noxious noise at or above 85 decibels while working with this particular employer.
The adjudicator also noted that she spoke with the seasonal employers identified by the worker. The first employer confirmed that the worker worked as a sheet metal worker from 2000 to 2003 and that hearing protection was mandatory. The second employer was no longer in operation and therefore no information could be obtained to confirm his employment duties and noise exposure. The third employer confirmed seasonal employment (September to April) from 2008 to 2015. The employer noted that the worker worked in their warehouse and processing plant. Hearing protection was provided. Noise levels were recorded at 85 decibels and under and with the use of hearing protection, the noise levels would be further reduced.
The adjudicator noted that a WCB medical consultant did a comparison between the 1999 and the 2015 audiometric test results and they showed an average deterioration of 25.9 dB in the right ear and 32.2 in the left ear. Although this deterioration confirmed a hearing loss, the adjudicator was unable to confirm his hearing loss was caused by noxious noise in the workplace. On November 12, 2015, the worker appealed the decision and the file was referred to Review Office.
On January 5, 2016, Review Office confirmed that the worker's claim was not acceptable. Review Office noted that the worker's 2015 audiogram confirmed he was suffering from bilateral NIHL, which was noted to be fairly symmetrical by that time. This constituted evidence of injury. To confirm an accident, Review Office stated that it needed to confirm the injury was work-related.
Review Office stated that Compensation Services was unable to confirm a workplace exposure that met the WCB's hearing loss policy's criteria for exposure levels. Review Office further stated that prior to 2000, the evidence supported a probable relationship between firearm use and the worker's loss, and was unable to conclude that his hearing loss at that time was work-related. Since that time, the worker's hearing loss became more symmetrical; however, given the lack of evidence supporting sufficient workplace exposures subsequently, Review Office was unable to conclude the worker's hearing loss was compensable.
On January 25, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB Board of Directors.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act. Hearing loss claims are adjudicated by the WCB as occupational disease claims.
The Board of Directors has established Policy 44.20.50.20 Hearing Loss (the “Hearing Loss Policy”) to address claims arising from long-term exposure to occupational noise that causes hearing loss.
The Hearing Loss Policy states, in part:
Noise induced hearing loss occurs gradually – often over several years – and most hearing-loss claims do not involve a loss of earnings. For these reasons, it can be difficult to determine when the impairment began. For the purposes of this policy, the date of the accident will be:
The date a loss of earnings has occurred, or
The date of an audiogram which shows evidence of noise-induced hearing loss.
…
Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is 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. For every increase in noise level of 3 decibels, the required exposure time will be reduced by half.
The issue to be determined by this panel deals with causation and whether the worker’s hearing loss arose out of and in the course of employment.
Worker’s Position
The worker was self-represented at the hearing.
The worker advised that much of his overall employment had been in high noise environments, where he had been exposed to high levels of noise on a regular daily basis:
1985 – 1986: Heavy duty drop press operator in an aluminum forging operation.
1986 – 1999: Assembly-operator in an aluminum fabricating operation.
2000 – 2003: Sheet metal worker in a stainless steel operation.
2004 – 2007: Machine operator at a farm. (Seasonal)
2007 to 2015: Operator at a processing mill. (Seasonal)
From 1985 to 1986, the worker set up and operated presses and machines utilized in an aluminum forging operation. He stated that the sources of noise were: grinders, drills, power hammers and forklift utilization. Operating the drop press involved hammering aluminum into a form. Noise level testing was not available for this time.
From January 6, 1986 to August 14, 1999, the worker described his overall functions as a sheet metal technician. He worked with others reaming, drilling, riveting, bucking, sawing, sanding and grinding. All of the work involved working with aluminum, a relatively soft metal, as opposed to other much harder metals.
The worker advised that he and a co-worker would spend approximately two hours a day drilling and countersinking holes, with the balance of the day doing riveting and bucking. This involved two workers, one applying a small rivet gun, similar to an air hammer, to the finished head of the rivet, while the other would “buck” by holding an anvil to the unfinished end of the rivet, thereby effecting compression of the rivet when the rivet gun was discharged. The two employees would change off between riveting and bucking in order to alleviate fatigue.
From October 30, 2000 to December 15, 2003, he was employed as a stainless steel sheet metal operator.
The worker’s primary function was to rivet and buck pieces of stainless steel, where the operator would be required to rivet and buck on his own. The operation was performed in a confined metal space and resulted in significant reverberation and much greater noise than would otherwise be experienced. Given that the operation involved only stainless steel, a much harder metal, the application of force and the noise generated was much greater that it had been in his prior employment. Riveting an aluminum rivet involved a single “pop”, while riveting a stainless steel rivet involved much greater exertion and a more extended and louder type of sound. Noise level testing was not available for this time period.
The worker advised that the work during 2004 - 2006 and 2007 - 2015 had been exceedingly noisy. He stated that the work was outdoors from 2004 - 2006, while the work from 2007 - 2015 was inside a mill. Both were seasonal. He commented that the workplace noise was definitely louder inside the mill.
The worker advised that that the noise levels he experienced in the mill had been greater than those experienced in farm operations.
The worker was questioned regarding his use of hearing protection. He acknowledged that while protection was, for the most part, available with all of the employers, there were often times when he didn’t use it. The one exception was working with stainless steel, where the noise was so great that he could not normally fasten a single rivet without having to immediately resort to hearing protection.
On the issue of firearm usage in the course of hunting, the worker stated that his hunting was confined to one or two occasions per year, and that on such occasions, he would at most discharge his gun once or twice. He states that he discontinued hunting in the mid-1990s.
The worker stated that he realized that he had a definite hearing problem when he received the results of a hearing test conducted in April of 2015. He underwent an audiological assessment on May 19, 2015, and the audiologist informed him he suffered from a textbook case of noise induced hearing loss. He submitted a WCB claim shortly thereafter.
Employer’s Position
There were five employers with noisy work environments over the course of the worker’s employment, but the notice of appeal was sent to the employer that had been designated as the Employer of Record. This was the employer who had employed the worker in its aluminum fabricating operation for the thirteen plus year period from January 6, 1986 to August 14, 1999.
The employer accepted that the worker suffered a noise induced hearing loss, but contended that the hearing loss had occurred as a result of employment with other employers. In support of that position, the employer submitted that the loss of hearing during the period from 1986 to 1999 was not considered to be significant as noted by the WCB's own ENT, on August 24, 2015.
The employer also commented on a 1990 noise survey that advised the employer had instituted an annual hearing testing program beginning in 1986 and that it had mandated compulsory hearing protection as recommended in the narrative discussion contained in the survey. Those assertions were acknowledged by the worker as being accurate.
Analysis
The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker’s hearing loss arose out of the work duties and during the course of the worker’s employment. On a balance of probabilities, we are able to make that finding.
The panel carefully reviewed the audiograms and hearing tests conducted as well as the available sound level surveys conducted by employers in the periods that the worker was employed with them. The records were from 1986 - 1999, from 2000 - 2003 and then from 2008 - 2015.
The first period was during the worker's employment from 1986 - 1999 that showed maximum peak levels during the bucking operation to be 135 dB, measured at an instant in time. The worker's evidence was that during this time he assembled large parts and fastened them with a one inch long rivet into a 3/16 inch hole. The worker stated "there were 144 rivets per [part] and he did 6 [parts]. When I hit the gun, it was one bang…" The operation took about 3 hours to hammer all the rivets.
The second period was from 2000 - 2003 when the worker was working with large stainless steel parts that were assembled and riveted together by himself. The reported noise levels by the employer were that they exceeded 95 decibels during the riveting process. The worker's evidence at the hearing was he completed one part a day, each part was secured by 100 stainless steel rivets that took 5 seconds of multi impacts to tighten them. He also stated that the duties included drilling, reaming and grinding the rivet holes, as well as sanding the part for 2 - 3 hours. The panel accepts the worker's evidence that the noise levels at this workplace were significantly louder than his previous position because of the change of materials from aluminum to stainless steel and his working in a confined space.
The third period was from 2004 - 2015 when the worker was working in seasonal farm related operations. One was working outside with mechanical harvesting equipment and the second was at a processing mill. There was no sound level testing done during the outside operation on the mechanical equipment; however the worker's evidence at the hearing was the noise level made communicating impossible and he had to shut off the machine. The employer in the processing mill did conduct sound level testing when they started a hearing protections program in April 2015. The levels tested by their consultant found the warehouse levels to range from 65 to 75 dB and the processing area ranged from 80 dB to 85 db. The worker's evidence at the hearing was that to him, the processing area was uncomfortably loud at times from the augers, the vibrators that shook the product as well as the rollers that cleaned the product. He noted that the noise was constant.
The panel places weight on the WCB's ENT specialist who reviewed the audiometric testing conducted by the employer between 1986 to 1999 and opined that the comparison showed that the worker's loss during that period was not a significant loss over the 13 years.
The panel also accepts the same ENT advisor's opinion on October 20, 2015 that he "had compared the audiograms from 1999 and 2015 and they showed a deterioration of 25.5 dB in the right ear and 32.2 dB in the left ear. This deterioration is consistent with NIHL."
The panel finds that based on our analysis of the audiogram testing, the audiometric testing, the sound level surveys available to us and the worker's evidence at the hearing, the worker suffered an NIHL during his employment.
In particular, the panel finds that the worker was exposed to significant noise levels in his many workplaces, and in particular, was exposed to noxious noise levels in his employment from 2000 - 2003 that were at or above levels set out in the Policy.
For these reasons, the panel finds that the worker’s claim is acceptable.
The Employer of Record at the hearing had requested that it not be found responsible for the worker’s hearing loss and that it not bear any cost consequences for the claim. The panel's understanding is, pursuant to the Hearing Loss Policy, all claim costs are assigned to the Cost Apportionment Fund. The employer may wish to confirm this with the WCB.
Panel Members
D. Kells, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
D. Kells - Presiding Officer
Signed at Winnipeg this 4th day of August, 2016