The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept the worker's claim for noise-induced hearing loss ("NIHL"). A hearing was held on September 8, 2016 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In December 2014, the worker filed a claim with the WCB for NIHL. The worker reported that his hearing loss came on gradually and that the noise in the workplace was continuous. The worker provided details regarding his employment history, past medical conditions, extra-curricular activities and the type of hearing protection he used during his working career.

On January 12, 2015, the employer provided the WCB with additional information which included audiograms and a report dated October 6, 1987, dealing with sound level testing on machines "F" and "G." The employer submitted that the information did not show NIHL.

The WCB then obtained audiogram and MRI results which were reviewed by a WCB ear, nose and throat ("ENT") consultant.

On October 9, 2015, the employer was advised that the worker's claim was acceptable as it was established that the worker was subject to noxious levels of noise as a driver/operator, and their firm was responsible for a portion of the claim costs, which amounted to 60.86% based on Section 105 of The Workers Compensation Act (the "Act").

On October 30, 2015, the employer appealed the decision of October 9, 2015 to Review Office and stated: "Please look to the results of the sound level intensity test on the [F & G machines]. The worker is sitting at the place 2 and 3 in the cab, so the ear level is 77.5 dba and 76.5 dba."

On December 9, 2015, Review Office confirmed that the worker's claim for NIHL was acceptable.

Review Office disagreed with the employer's contention that the noise level surveys outlined in the October 6, 1987 report supported that the worker was not exposed to noise greater than 85 decibels. Review Office noted that the data showed that readings for the F and G machines were well above 100 decibels. The recommendations were to find some means of reducing the noise level intensity and imposing mandatory hearing protection. What measures were taken to reduce the noise levels was not outlined in the report.

Review Office noted the employer provided additional information on the noise levels for machines which did not appear to be part of the October 6, 1987 report. In the submission, noise level surveys were provided for unit "#69". They showed readings taken on August 21, 1985 with the engine in standby mode. The employer indicated that the worker sat in position number 2 and 3 and therefore was exposed to noise levels of 77.5 decibels and 76.5 decibels.

Review Office indicated that it did not dispute the readings, but given the file information that noise levels at times were over 100 decibels, there was sufficient evidence to support that during his 20 years of employment, the worker was likely, at times, exposed to noise at or greater than 85 decibels. Review Office concluded that the whole of the evidence supported, on a balance of probabilities, that the worker's occupational exposure met the requirements outlined in WCB's NIHL policy. On December 17, 2015, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. Both the employer's advocate and the worker provided a written submission in advance of the hearing.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's 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.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") states, in part, as follows:

Not all hearing loss is caused by exposure to noise at work. A claim for noise-induced hearing loss is accepted by the WCB when a worker was exposed 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. For every increase in noise level of 3 decibels, the required exposure time will be reduced by half.

Employer's Position

The employer was represented by an advocate, as well as two of the employer's Disability Management Analysts and its Senior Manager, Western Operations. The employer's Senior Manager participated in the hearing by teleconference.

The employer's position was that the evidence did not establish that the worker sustained a noise-induced hearing loss as a result of his employment activities. The advocate noted that the worker's hearing loss was substantially worse in his right ear than his left ear. The hearing in the worker's left ear was essentially normal until approximately 2015, which was more than six years after he had retired. It was submitted that occupational NIHL is almost always bilateral, and there was no explanation for the asymmetric hearing loss in this case. This asymmetry indicated that the cause of the worker's hearing loss was non-occupational. It was submitted that the WCB's ENT consultant confirmed that the worker had asymmetric hearing loss, which was substantial, and that this could not be explained on the basis of firearm use or exposure to whistles at work, as both ears were equally exposed. In the employer's submission, there was simply no occupational reason for the significant asymmetry in the worker's hearing loss.

It was further submitted that the pattern of loss demonstrated by the audiogram evidence was not indicative of occupational NIHL, but was more suggestive of presbycusis or age-related deterioration in the worker's hearing.

The advocate noted that the employer had provided noise level information which showed noise levels that were significantly less than what was required under the Policy. The advocate acknowledged that the worker had since indicated that this was for a different machine than the one he operated, but added that it was the employer's position that the sound levels for testing in the cab areas in both units would be similar. The advocate noted that neither the employer nor the worker had been able to find specific noise level studies for the particular machines which the worker operated. Accordingly, it was submitted that there was no evidence that the noise threshold levels for a compensable hearing loss under the Policy had been met.

Worker's Position

The worker was accompanied by a union representative and a worker advocate. The worker made a presentation, with the assistance of the union representative and advocate, and answered questions from the panel.

The worker's position was that he was exposed to excessive noise throughout his employment, which caused his hearing loss. The worker stated that he worked for the employer full-time on machines from 1990 to 2009. During that time, he worked on two different types, the "63s" and "64s". The 63s originally had steam heat which was converted to electric. The 64s were used on a different route driven by the worker. The 63s were retired around 1997, after which the worker operated the 64s only.

The worker submitted that the noise information which the employer provided with respect to the "69" machines was misleading, as they were used exclusively in another province and he never operated them. The 69s were completely different from the 63s and 64s which he operated for his whole career.

The worker stated that he worked on a safety committee for years, and that noise was an ongoing issue with respect to the 64s. The machines operated under full load at all times when they were in use, including when they were sitting or travelling at any speed. He noted that the employer's October 6, 1987 report contained test results for the F machine, which was a "64", and showed that the decibel levels were well over 100 decibels.

Analysis

The issue on this appeal is whether or not the worker's claim for NIHL is acceptable due to long-term exposure to noxious levels of occupational noise.

For the employer's appeal to succeed, the panel must find, on a balance of probabilities, that the worker did not sustain noise-induced hearing loss due to exposure to high levels of noxious noise as set out in the Policy during his employment with the accident employer. The panel is able to make that finding.

The Policy provides that in order to be satisfied that a worker's hearing loss occurred at work, 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 8 hours of exposure on a daily basis. For every increase in noise level of 3 decibels, the required exposure time is reduced by half.

The worker's evidence was that he wore hearing protection at all times while working for the employer. It is the panel's understanding that the use of hearing protection as described in this case would have had the general effect of reducing the level of noxious noise which the worker was exposed to. The levels under the Policy would therefore be adjusted, such that the worker would have to have been exposed to equivalent noxious noise at work to meet the minimum of two years, based generally upon an average of 85 dBA for 8 hours of exposure on a daily basis. The required exposure time would also be reduced by half for every increase in noise level of 3 decibels. Based on all of the evidence which is before us, the panel is unable to find that this noise threshold has been met.

The panel notes that there was a lack of information as to the noise levels that the worker himself would have been exposed to in the course of his employment. No information was available with respect to the levels on the 63 machine. The employer provided information on noise levels with respect to the 69 machine, but the evidence shows that was a very different machine, and the panel was not satisfied that the information could establish exposure levels on the 63 and 64 machines. In response to questions from the panel, the worker stated that the 64s were noisier than the 63s, and the diesel engine was the main source of the noise. The tabulated data on the October 6, 1987 report did identify noise levels of 114 to 118 decibels for the 64 machines. While the panel accepts that information, we also note that the evidence showed that those numbers represented noise levels inside the engine area itself, and that there was no data with respect to the noise level in the proximity of the worker.

The panel questioned the worker at considerable length with respect to his job duties and the extent of his exposure to noxious noise levels. The worker stated that he drove 3 different routes, which ranged in length from approximately 200 to 290 miles each way. On the northbound trip, the worker would drive to his destination then have a one-hour break before driving back to Winnipeg. On the other two trips, the worker would stop over at the destination and return to Winnipeg the next day. In a two-week rotation, the worker would see each of these three destinations.

The worker indicated that he would spend well over 90% of his time in the cab, and that once the steam heat was changed, 98 to 99% of his time was spent in the cab. The cab was separated from the engine area by a wall, a steel door and an electrical panel. The worker would leave the cab, and walk past the engine area for various reasons. The number of times that he would do so would vary each trip. He estimated, for example, that on the northbound route, he would go through the engine area between 3 to 6 times a trip, and on the other trips he might go past the engine up to 15 or 16 times in the summer. He noted that the steam heat on the northbound route required an hour a shift in the engine area. Overall, the panel is satisfied that the evidence indicates that the worker spent very little time in proximity to the engine.

The panel notes that the worker also indicated in his evidence that he spent an increasing amount of time over the years parked waiting because of route congestion issues.

The panel considered various other factors which the worker referred to as having a potential impact for the noise levels to which he was exposed. Among other things, he noted that he was required to sound an air horn often. One route, for example, he would have to sound the horn at least 282 times per trip. This would be particularly loud when the window was open. The panel notes that this sound from the horn would result in a very temporary exposure which was intermittent and of short duration, and that there was no data showing what the noise level of that sound might be or the effect that it might have on the noise level in the cab.

In conclusion, and based on the foregoing, the panel finds that the evidence establishes, on a balance of probabilities, that the worker did not sustain NIHL during the course of his employment with the accident employer due to exposure to levels of noxious noise as set out in the Policy. The panel therefore finds that the worker's claim for noise-induced hearing loss is not acceptable.

The employer's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of November, 2016