Decision #139/16 - 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 September 7, 2016 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Background
On October 6, 2015, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL"). The worker reported that he first became aware of a hearing problem approximately four years ago and that there was no specific injury. The worker said his hearing loss came on gradually and that he was exposed to continuous noise in the workplace.
On October 16, 2015, the worker provided the WCB with details regarding his employment history, the hearing protection he used, past and present medical history, the nature of his hearing loss difficulties and other history related to his extra-curricular activities.
On October 28, 2015, the accident employer outlined the position that there was no evidence of NIHL "especially earlier in the employee's career, when exposure would have been at its greatest."
On November 2, 2015, Compensation Services advised the worker that after considering all the file information, his claim for NIHL was not compensable. The letter stated:
[Employer] confirmed your employment from 1980 to date as a Machinist/Heavy Duty Mechanic. A Sound Level survey received to the board on December 17, 1980 confirmed the average noise levels for the Motive Power shop ranged from 74.37 to 80.88 decibels, and between 83.79 and 84.34 decibels in the Wheel shop.
Hearing test results from 1980 to 2015 were obtained and reviewed in consultation with a WCB Ear, Nose and Throat Specialist. Your hearing tests from 1980 to 2001 confirmed your hearing remained within normal ranges. The first indication of noise induced hearing loss was documented in your October 2, 2015 hearing test.
…
Your hearing remained normal and stable until 2015, and you reported the consistent use of hearing protection when exposed to noise throughout your career. It is the opinion of Compensation Services that the noise levels would have been reduced below 85 decibels. For these reasons, we are unable to determine your hearing loss is as a result of noise exposure at work…"
On December 4, 2015, the above decision was appealed to Review Office by the worker's union representative. A copy of the submission was referred to the employer for comment and their submission to Review Office is on file dated January 11, 2016.
In a decision dated February 1, 2016, Review Office confirmed that the claim was not acceptable.
Review Office commented that the worker's hearing was in the normal range up to the year 2001 and between 2001 and 2015, he developed NIHL.
Review Office referred to the worker's comments that he wore hearing protection throughout his career, which was consistent with the fact that to 2008, after 25 years of workplace exposure, he considered his hearing to be "good" (according to the work history summary on file). This was supported by audiometric testing which was measured to be normal between 1980 and 2001. NIHL was not seen on testing until 2015.
Review Office indicated that noise level survey with readings for the areas the worker was working over the years supported that he was not exposed to noxious noise levels in excess of the WCB policy threshold after taking into consideration the use of hearing protection. If the worker's hearing protection over the years was insufficient as suggested by his representative, Review Office would have expected to see evidence of NIHL by 2001. Given that the worker's hearing was fine up to and even beyond that point, and he continued to use hearing protection in the workplace, Review Office was unable to conclude his NIHL was work-related.
On March 3, 2016, the worker's union representative presentative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
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 Board of Directors.
The worker is appealing the WCB decision that his claim for hearing loss is not acceptable. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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;”
The Board established Policy 44.20.50.20, Hearing Loss (the "Hearing Loss Policy") which sets out guidelines applicable to claims for hearing loss arising from long-term exposure to occupational noise.
The Policy states, in part that:
3. 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…
Worker's Position
The worker was represented by a worker advisor. The worker advisor outlined the worker's position. The worker answered questions from his representative and the panel.
The worker advised that he has worked for the employer for almost 36 years as a machinist and heavy duty diesel mechanic. He said that he worked in an environment where he was exposed to noxious noise from a variety of sources. The worker acknowledged that the hearing test indicated normal results for the early years in his career. He agreed that with hearing protection, he did not sustain a loss in hearing in the period from before 1980 to 2001.
In answer to questions from the panel, the worker described the hearing protection that he used, the duties he performed and the noises he was exposed to after 2001.
Regarding hearing protection, the worker said that he always wore hearing protection. He said that he primarily used ear plugs but on occasion he wore both muffs and plugs. He said that muffs did not fit over hard hats. He identified the type of plugs and muffs that he wore. It was agreed that the hearing protection from the plugs and muffs combined gave a total reduction of 18 decibels.
The worker noted that most work areas did not post decibel levels.
The worker described his duties in the engine rebuild and advised that after 2008, he transferred from motive power to the diesel shop for engine rebuild. This area was responsible for stripping and rebuilding engines. The number of engine rebuilds was limited to about 5 per year prior to 2009, but in 2009 the employer increased production from one engine in the workshop to 5 engines in the workshop on a daily basis, an increase from 5 engines to 67 engines per year. He said sound tests conducted before 2009 do not accurately reflect sound levels in the area after 2009 when he worked there. He said total noise exposure was about 6 hours per day. Tools included pneumatic impact tools, metal grinders and hammers for striking metal.
The worker performed load testing between 2002 and 2008. He explained the process for load testing an engine including the incremental increase in engine speed to top speed. He said that the noise exceeded 85 decibels and could hit 141 decibels. He said that even with hearing protection, he was exposed to greater than 85 decibels of noise. He noted that he wore both muffs and plugs which provided a combined reduction of only 18 decibels. The worker confirmed that he load tested about 4 engines per week and that each test took about 2 hours.
The worker said that he worked the evening shifts and that the brunt of undesirable work was done on this shift.
The worker advised that he first noted his hearing loss in conversation about 4 to 5 years ago. He developed tinnitus in 2011. He hears the sound in his right ear only.
The worker's representative noted that the worker underwent a hearing assessment in 2015 and that it was consistent with hearing loss due to noise exposure. She also noted that the worker did not have a medical history of ear difficulties to account for his hearing loss.
Employer's Position
The employer was represented by its Workers Compensation Officers. At the commencement of the hearing an employer representative tendered Exhibit 2 which included:
Calculation of Noise Reduction from Hearing Protection (derating factor - CSA Standard Z94.2-14) which identified noise reduction for earplugs, ear muffs and dual protection (when both are used simultaneously).
Hearing Protection (effective NRR) for various brands of ear plugs, ear muffs and combined protection.
Photos of the types of ear plugs and ear muffs available at the worksites Survey and Report of Noise Assessment During Engine Rebuild Activities 2003 Noise Exposure in [name] Areas 2001
Sound Level Survey In Wheel Shop 2001
The employer representative submitted that the information does not establish that the worker meets the threshold of exposure to noxious noise upon an average of 85 decibels for 8 hours of exposure on a daily basis.
The employer representative noted that for the Wheel Shop and Engine Rebuild, the test levels less hearing protection deduction reduced the noise exposure to a level below the criteria.
Analysis
The issue before the panel is whether the worker's claim is acceptable. In this case, the worker claimed an injury caused by prolonged exposure to occupational noise. In order to find the claim acceptable, the panel must find, on a balance of probabilities, that during his employment in Manitoba the worker was exposed to levels of noxious noise at an average of 85 decibels for 8 hours of exposure on a daily basis or equivalents, as defined by the Hearing Loss Policy. The panel is not able to make this finding based on the evidence on file and presented at the hearing.
The worker's evidence, at the hearing, was that he worked in a noisy environment for almost 36 years. However, the worker's hearing tests do not demonstrate a hearing loss prior to 2001 and the evidence does not support that he was exposed to noxious noise during this period. Given this, the panel focused on the work performed from 2001 onwards.
The worker confirmed that he always wore hearing protection and that when he was performing the nosiest work, he wore both hearing plugs and muffs. The panel finds that, at times the noise exceeded 85 decibels to as much as 141 decibels. The panel notes that the exposure was for a limited time and was reduced by the use of hearing protection. The evidence at the hearing was that the loudest noise lasted for 48 minutes and that it was on average 108 decibels. The panel notes that with the hearing protection, the reduction was 18 decibels, resulting in an exposure of 90 decibels for a limited period of time and would not equate to an average of 85 decibels for 8 hours or equivalents, as defined by the Hearing Loss Policy.
The panel finds that the worker's noise exposure levels do not meet the average exposure levels for noxious noise as set out in the Hearing Loss Policy.
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 29th day of September, 2016