The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board ("WCB") with respect to his claim for noise induced hearing loss. A hearing was held on August 31, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to hearing aids; and

Whether or not the worker is entitled to a Permanent Partial Impairment award.

Decision

That the worker is not entitled to hearing aids; and

That the worker is not entitled to a Permanent Partial Impairment award.

Background

On October 3, 2014, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL").

On October 15, 2014, a WCB adjudicator spoke with the worker to gather information related to the onset of his hearing loss difficulties, details of his employment history, extra-curricular activities and family/medical history. The WCB also contacted several employers that were identified by the worker in order to verify employment information.

On February 18, 2015, a WCB ear, nose and throat ("ENT") consultant was asked to provide his opinion regarding the nature of the worker's hearing loss. In a response dated February 18, 2015, the ENT consultant noted that the worker had an asymmetric hearing loss with the left ear being worse than the right. He noted that the worker was a right-handed firearm user. The consultant commented that the average loss in the worker's right ear was 8.75 decibels and the average loss in his left ear was 20 decibels based on 1992 audiogram results.

In a decision dated March 23, 2015, the WCB advised the worker that his claim for NIHL was not compensable as the WCB was unable to establish a work-related cause for the asymmetry in his hearing loss. On May 19, 2015, the worker appealed the adjudicator's decision to Review Office.

On July 21, 2015, Review Office accepted the worker's claim for NIHL. Review Office noted that noise level surveys were not on file but acknowledged that the worker had been employed in a certain type of industry where he would have been exposed to noise greater than 85 decibels for eight hours a day for a minimum of two years. He was employed as a welder prior to when hearing protection was available and provided.

Review Office noted that NIHL was symmetrical and as the worker's noise induced hearing loss in his right ear was 8.75 decibels, then it can be presumed the noise induced portion of his hearing loss in his left ear was 8.75 decibels.

Review Office noted that the worker retired in 1993 and had later worked as a welding instructor for a different employer from 1999 to 2007. Review Office stated that the file evidence did not confirm exposure to noise greater than 85 decibels for eight hours a day while working with this employer. Therefore, any deterioration in his hearing after the 1992 audiogram was not the WCB's responsibility.

The worker's claim was then referred back to Compensation Services to determine benefit entitlement. On July 22, 2015, the worker was advised that the WCB was unable to cover the cost of hearing aids and that he was not entitled to a Permanent Partial Impairment ("PPI") award. On August 27, 2015, the worker appealed the decision to Review Office.

Prior to considering the worker's appeal, Review Office sought medical advice from the WCB's ENT consultant. On October 25, 2015, the consultant stated:

A hearing aid is recommended when the hearing level in the speech frequencies (500-4000 Hz) drops below the normal level of 25 decibels. In the December 14, 1992 audiogram, the hearing levels in the speech frequencies are perfectly within the normal range in the right ear (which is used for both ears), except for a 5 decibel drop at 3000 Hz below the normal level. This is not significant and does not justify the use of a hearing aid.

On October 27, 2015, Review Office found no entitlement to hearing aids or to a PPI award. Review Office referred to the October 25, 2015 medical opinion and its prior decision dated July 21, 2015 which accepted that bilateral hearing loss of 8.75 decibels occurred. Based on the WCB medical opinion and no further evidence to demonstrate the worker's employment between 1993 to 2007 caused further deterioration in his hearing, Review Office found no entitlement for hearing aids.

To merit a PPI award based on WCB policy, Review Office noted that the average loss of the four speech frequencies must exceed a minimum threshold of 35 decibels in each ear. As the average employment related hearing loss in the worker's ears had been accepted at 8.75 decibels, the worker did not qualify for a PPI award as it was under the threshold of 35 decibels. On December 8, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The worker has an accepted claim for hearing loss and is seeking hearing aids and a PPI award related to his hearing loss.

In considering this appeal, the panel is bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB 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. With respect to claims for hearing loss, the injury can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise.

Subsection 4(9) provides that the board may award compensation for an impairment that does not result in a loss of earning capacity.

The method for calculating compensation for an impairment is set out in section 38 of the Act. Subsection 38(1) provides that "[t]he board shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.

The board has enacted WCB Policy 44.20.50.20.02, Noise Induced Hearing Loss, which applies to claims arising from long-term exposure to occupational noise that causes hearing loss. Section 7. of this policy deals with the provision of hearing aids to workers with accepted hearing loss claims.

The WCB Board of Directors has established Policy 44.90.10, Permanent Impairment Rating Schedule (the "PPI Policy"). Pursuant to the PPI Policy, impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the PPI Policy.

Appendix A to the PPI Policy deals with "Impairment of Hearing". It provides that:

When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1000, 2000, and 3000 hertz.

The policy further provides that in order for a worker to be eligible for a PPI award, the average loss of four speech frequencies must be a minimum of 35 decibels in each ear.

Worker's Position

The worker was accompanied to the hearing by his wife. He also called as a witness a co-worker who was familiar with the working environment at the various facilities where the worker performed his duties.

The worker advised that he began working for the employer in 1956. He worked on the road from 1956 and 1969 between Ontario and B.C. He then worked out of different facilities in Winnipeg.

The worker's wife advised that she has known the worker since 2009 and that she noticed his hearing loss at home so she suggested that he get his hearing tested.

The worker acknowledged that the hearing tests show that he has a greater hearing loss in his left ear than his right. He disputes the WCB position that this may be due to shooting with a shotgun. He said that he did not use a shotgun. In response to a question from the panel, the worker did acknowledge that he used a .22 rifle when he was younger, but that the noise level was not significant.

The co-worker testified that he worked for the employer since 1971 and retired in 2003. He said that he worked as a time keeper for the worker. He described the working environment and answered questions regarding noise and hearing protection.

The co-worker was asked whether there were any particular features of the job which would affect one ear more than the other. The co-worker replied that:

From going in there, I think it would be equally as bad. Both my ears, well, I don’t know, like, after 14 years of hearing this banging.

When asked if "generally speaking, the noise level would be both on the left and on the right", the co-worker said that "I would say it would be equally as bad ear." The worker agreed with the co-worker's evidence.

Regarding his work as a welder, the worker said that the noise was worse with grinding and less bad with the actual welding. The worker advised that he used a hand-held grinder and that it was "Right in front of you."

The worker advised that he eventually worked as a grinding instructor. He worked with about 6 students at a time and would always be assisting someone. He would have to remove his hearing protection to talk to them.

The worker was asked about the blast which he thought was responsible for his asymmetrical hearing loss. He described it as follows:

And as I explained, we lit the torch. You know, you have to blow out your oxygen and your propane, and then we lit it. And then it backfired and went back into the gauge and blew out a big hole. It was like standing in front of a rifle.

The worker said that he had ringing in both ears but that the left ear "every now and then it kept on ringing."

Regarding the second issue, a PPI award, the worker advised that he was not seeking an award, he was just asking for hearing aids.

In answer to questions, the worker agreed that the noise exposure during grinding and using a torch would be equal for both ears.

The worker provided photos of the worksite which were accepted as exhibits. He explained the set-up, related duties and noise exposure.

Employer's Position

The employer was represented by its Workers Compensation Claims Officer. The employer representative advised that the employer was in agreement with Review Office, that there is no benefit entitlement under the Act.

He noted that worker initially advised WCB in October 2014 that his hearing problems began approximately five years ago, suggesting that the first evidence of noise-induced hearing loss was noticed around 2009, with occasional ringing in his ears noticed between 2001 and 2007. He noted that the worker also mentioned being exposed to a blast explosion around 1966 or 1967 and stated that the resulting symptoms was ringing in his ears, which only lasted about a week. The employer representative advised that he investigated the blast and could find no information or record of the blast. He also noted that the co-worker identified by the worker as being present did not have a claim for a hearing loss related to the blast.

The employer representative also noted that the worker advised the WCB that he consistently used hearing protection since the 1970s. The representative commented that none of the causes noted by the worker have provided an explanation for asymmetrical hearing loss.

Analysis

The evidence before the panel is, as follows:

• the worker was employed in a noxious noise environment since 1956.
• the worker retired in 1993 from this employment. * the worker had audiograms in 1992 and 2014.
• the 1992 screening audiogram was consistent with noise induced hearing loss, with the loss in the worker's left ear greater than in his right ear.
• an WCB ENT consultant noted that the average loss in the worker's right ear was 8.75 decibels and the average loss in his left ear was 20 decibels.
• the noise exposure in the workplace was equal for both his ears.
• in a Hearing Assessment memo dated February 18, 2015, the WCB ENT advised that based on the 1992 audiogram, a hearing aid is not needed for the right ear. He noted that the need for a hearing aid for the left ear is not related his employment. He also noted that in the 2014 audiogram the worker is a candidate for bilateral hearing aids.
• in a memo dated October 25, 2015, the WCB ENT consultant advised that a hearing aid is recommended when the hearing level in the speech frequencies (500- 4000 Hz) drops below the level of 25 decibels. The consultant noted that in the 1992 audiogram, the speech frequencies are perfectly in the normal range in the right ear and as such does not justify the use of a hearing aid.
• in a December 1, 2014 letter, the worker's ENT specialist noted that the worker has "an asymmetrical sensorineural loss."

The difficulty faced by the panel in rendering a decision is that the worker had uneven hearing loss in his ears. The evidence is that the worker needs a hearing aid for his left ear for noise exposure which is not related to his employment. The worker was asked if he could identify a time or incident that would account for greater noise exposure to his left ear than his right ear, given that the duties described by the worker supported a finding that exposure was the same for both ears. The worker recalled one incident which involved a tank exploding in close proximity to where he was working. He said it was very loud and that he had ringing in his ears after the incident. The employer was not able to verify the incident. The panel finds, based upon the worker's description of the event, that noise exposure for this event would have been the same for both ears. The panel is not able to find that this event caused the worker's asymmetrical hearing loss in his left ear.

In the absence of evidence of a work-related cause for the worker's asymmetrical hearing loss, the panel finds that the right-sided hearing loss best represents the hearing for both ears, therefore we find the worker has a bilateral hearing loss of 8.75 decibels.

1. Whether the worker is entitled to hearing aids.

This appeal deals with whether the WCB is responsible for the provision of hearing aids to the worker as a result of employment related hearing loss which we have established as a bilateral hearing loss of 8.75 decibels.

The panel finds that the worker is not entitled to hearing aids under the Hearing Loss Policy. The evidence is that the worker does not require hearing aids as a result of his workplace exposure to noise. The panel finds that Section 7 of the policy is not applicable as the hearing aids are not required as a result of the workplace exposure.

The worker's appeal of this issue is dismissed.

2. Whether the worker is entitled to a PPI award.

At the hearing, the worker advised that he was seeking hearing aids and that he had not specifically applied for a PPI award. The panel advised that as the matter has been adjudicated by the WCB and is listed with this appeal, it will consider the worker's eligibility for a PPI award for his hearing loss.

The process the WCB must follow to calculate an impairment award is set out in Schedule A to the Impairment Rating Policy. The calculated rating represents the percentage of the worker’s impairment as it relates to the worker’s whole body. The impairment rating is not related to loss of earning capacity and is not intended to compensate a worker for any pain or suffering flowing from an injury.

The specific provisions related to calculation of a permanent impairment rating in respect of hearing loss are found in Chapter 14 of the Schedule which sets out a three-step process:

1. Calculate the percentage of hearing loss in each ear;  
2. Calculate the combined percentage of hearing loss;
3. Convert the loss of hearing to an impairment of the whole person.

The policy further provides that in order for a worker to be eligible for a PPI award, the average loss of four speech frequencies must be a minimum of 35 decibels in each ear.

In this case, as the average employment related hearing loss in the worker's ears has been accepted at 8.75 decibels the worker does not qualify for a PPI award as it is under the threshold of 35 decibels.

The panel relies upon the calculation performed by the WCB ENT consultant. On October 25, 2015, the consultant calculated the impairment and opined that:

For hearing loss to be rateable (when the date of accident is prior to April 1, 2000), the average loss in both ears should be 35 dB or more. Therefore, an average loss of 8.75dB (in both ears) does not result in a rateable hearing loss.

The panel finds that the worker is not entitled to a PPI award. The appeal on this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 22nd day of September, 2016