Decision #155/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny responsibility for the purchase of a left ear hearing aid. A file review was held on August 23, 2016 to consider the worker's appeal.
Issue
Whether or not responsibility should be accepted for the purchase of a hearing aid for the worker's left ear.
Decision
That responsibility should be accepted for the purchase of a hearing aid for the worker's left ear.
Background
In 2008, the worker filed a hearing loss claim with the WCB. The worker reported that he first became aware of a hearing problem in July 1987 and his hearing loss came on gradually. The worker attributed his hearing loss difficulties to his employment as a mill worker.
On November 27, 2008, the worker advised the WCB that he started working for his employer in 1976 and had been exposed to noxious noise throughout the plant. The worker advised that he had tubes inserted into his left ear twice because of fluid problems, the last time being approximately five years previously. The worker stated that he hunted deer and was a right-handed firearm user.
The WCB obtained medical reports and audiogram results which were reviewed by a WCB ear, nose and throat ("ENT") consultant.
In a decision dated January 26, 2011, the worker was advised that his claim for compensation was accepted and the WCB would pay for the purchase of a hearing aid for his right ear, as well as batteries and ongoing maintenance with prior approval. The worker was also advised that his condition was not considered rateable and that he did not qualify for a permanent partial impairment award. The decision was based on the comments made by the WCB's ENT consultant that the worker's average loss of hearing in his right ear was 37.5 decibels while the average loss of hearing in his left ear was 8.75 decibels.
On July 22, 2013, the worker advised the WCB that he saw an ENT specialist on April 29, 2013 and had a follow-up appointment with an audiologist on August 13, 2013. The worker believed that the WCB should cover the costs of hearing aids for both ears.
In a report to the worker's family physician dated April 29, 2013, the ENT specialist wrote that the worker had bilateral hearing loss. The specialist stated:
The thresholds are worst in the right ear. In the left ear, he does have a history of chronic Eustachian tube dysfunction with evidence of retraction of the inferior quadrants. However, the main problem in the left ear is a sensorineural loss and therefore, I would definitely support a Workers' (sic) Compensation Board claim for workplace noise exposure to include the left ear as well, and a left-sided hearing aid should be approved…
On January 11, 2014, the WCB ENT consultant reviewed audiogram results dated May 15, 2012 and stated:
Based on 2009 audiogram…the worker has primarily conductive hearing loss in the left ear. The audiologist recommended a right hearing aid only. The above audiogram is not complete and is missing bone conduction thresholds in some frequencies on the left side. Bone conduction testing was not done for the right ear. For better comparison, I would suggest repeating the hearing test at [facility].
On March 20, 2014, the worker underwent further audiology testing. In the corresponding report, the attending audiologist stated that:
[The worker] has significant conductive component on both sides and could benefit from an otologic review to see if there are management options for the conductive component providing this has not already taken place more recently. Should there be no further surgical intervention or contraindications for the left ear [the worker] could benefit from a hearing aid directed to that ear as well.
On April 24, 2014, the WCB ENT consultant opined that the new audiogram dated March 20, 2014 showed that the hearing loss in the left ear was primarily conductive in nature and that:
Based on the bone conduction thresholds in the left ear, a hearing aid is not needed. The need for a left hearing aid is on the basis of the conductive hearing loss which is not work-related.
On May 5, 2014, the worker was advised that the WCB was unable to accept responsibility for a left ear hearing aid as the hearing loss in his left ear was primarily conductive, which was not consistent with a noise-induced hearing loss. On July 24, 2014, the worker appealed the decision to Review Office.
On October 14, 2014, Review Office confirmed that there was no coverage for a hearing aid for the worker's left ear. In reaching its decision, Review Office referred to WCB policy and placed weight on the following:
* The May 2012 audiogram from the worker's audiologist was not an accurate reflection of the worker's hearing loss as it was missing some bone conduction thresholds in some frequencies on the left side. * The April 2013 audiogram from the worker's ENT specialist did not record bone conduction thresholds for the left ear and further testing was required. * The March 2014 audiologist's report stated in part: "Pure tone audiometry revealed a severe mixed hearing loss, right and a mild to severe primarily conductive hearing loss, left." Review Office accepted the results from this testing. * The opinion of the WCB ENT consultant outlined on April 24, 2014.
On May 19, 2015, a union representative, acting on the worker's behalf, wrote Review Office asking for reconsideration of its October 14, 2014 decision based on new information from the worker's audiologists dated January 19, 2015.
In a further decision dated May 28, 2015, Review Office confirmed that there was no coverage for a left hearing aid. Review Office noted that the audiologists' report of January 19, 2015 stated that: "Having a conductive overlay does not negate the fact that there is an underlying sensorineural component to the left ear and always has been."
Review Office noted that in a medical report from an ENT specialist dated October 6, 1987, it was reported that the worker was exposed to noise from snowmobiles and firearms. The ENT specialist stated: "The most likely explanation for this high tone hearing loss on the left side is exposure to gun noise trauma even though it may have been quite a few years ago."
Review Office commented that firearm use can cause permanent damage to hearing, with as little as one shot. With repeated exposure (the worker hunted on a yearly basis), further hearing loss could occur. The worker was a right-handed shooter, so more damage to the left ear would occur because the left ear was close to the muzzle of the firearm. The audiologists also stated in part "that firearm use can cause more hearing loss on the opposite ear."
Review Office concluded that the worker's hearing loss in his left ear was due to many causes. The primary cause was conductive hearing loss (not noise related). The other part was due to noise exposure. After factoring in non-occupational noise exposure (i.e. firearm use/snowmobile and motor boat use), Review Office determined that it was likely that a small part of the worker's hearing was affected by the noise at the workplace. Review Office did not find that this portion (compensable left-sided hearing loss) would require the use of a hearing aid.
On May 18, 2016, the worker's union representative appealed Review Office's decision to the Appeal Commission and a file review 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's Board of Directors.
Subsection 4(1) of the Act provides that 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.
Subsection 27(1) of the Act provides that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury.
WCB Policy 44.20.50.20.02, Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The effective date for the Policy is for claims arising from accidents between May 29, 1985 and March 31, 2000, where the initial decision is made on or after October 1, 1995 and the date of notification is prior to October 1, 2013. The relevant time period for this claim falls between these dates, and as such, the Policy applies to this case.
The Policy states, in part, as follows:
2. For a claim 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). … 5. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker will be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board.
Worker's Position
The worker was assisted by a union representative in the appeal. The worker's position, as set out in his appeal form, was that he should be provided with a hearing aid for his left ear due to sensorineural hearing loss in his left ear caused by workplace noise exposure.
It was noted that in 2011 the worker was provided with a right hearing aid only, due to a workplace injury dating back to July 1987, even though there was evidence that both of his ears were affected by his workplace accident. It was submitted that multiple hearing specialists had evaluated the worker over the past five years and concluded that he had sensorineural hearing loss in his left ear from his workplace accident. They had also supported his claim for workplace noise exposure for his left ear. The worker therefore asked that his claim for a hearing aid for his left ear be approved.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not responsibility should be accepted for the purchase of a hearing aid for the worker's left ear. For the worker's appeal to be successful, the panel must find that the worker has a work-related hearing loss which is sufficient to entitle him to a hearing aid for his left ear. The panel is able to make that finding.
The worker has a generally accepted claim for noise-induced hearing loss (NIHL) in both ears based on his exposure to noxious levels of noise while working in the workplace. At the time the claim was accepted, hearing loss was found to be worse in the right ear, and a hearing aid was recommended and provided for that ear only. An ENT specialist and several audiologists have since recommended that the worker be provided with a hearing aid for the left ear as well.
The panel has carefully reviewed the medical information and opinions on file. The panel notes that while the medical opinions differ as to the extent and effect of the conductive component or overlay with respect to the loss of hearing in the worker's left ear, the medical information nevertheless supports that the hearing loss in the worker's left ear has a sensorineural component that is work-related.
The panel notes that the worker's claim related to a loss of hearing in both ears, and there was sufficient evidence for the WCB to accept the claim based on the worker's bilateral exposure to noxious noise levels in the workplace. The panel further notes that the information on file does not indicate that there was a significant, or any, difference between the occupational noise exposure to the worker's left ear and his right ear, and that they were therefore equally exposed to that noise.
In light of the foregoing, and given that the WCB has accepted responsibility for a hearing aid for the worker's right ear based on his work-related NIHL, the panel is satisfied that a hearing aid is similarly required and should be provided for the worker's left ear.
As a result, the panel finds, on a balance of probabilities, that the worker has a work-related hearing loss in his left ear sufficient to entitle him to a hearing aid, and that responsibility should be accepted for the purchase of a hearing aid for the worker's left ear.
The worker's appeal is allowed.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of October, 2016