Decision #174/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a Permanent Partial Disability award with respect to his hearing loss. A file review was held on October 31, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to a Permanent Partial Disability award.
Decision
That the worker is not entitled to a Permanent Partial Disability award.
Background
On November 2, 2015, the worker filed a claim with the WCB for noise induced hearing loss.
When speaking with a WCB adjudicator on November 18, 2015, the worker reported that he retired on March 27, 1998. He denied any ear injuries, surgeries or discharge from his ears. The worker noted that he has tinnitus which has been constant since 1999. The worker provided details of his employment history and his use of hearing protection.
On January 18, 2016, a WCB ear, nose and throat ("ENT") consultant reviewed the file information which included audiogram results dated July 21, 1999. The consultant concluded that the worker's hearing loss at that time in his right ear was 28.75 decibels and the hearing loss in his left ear was 31.25 decibels. The consultant also reviewed audiograms from 2005 and 2015 and was of the view that both audiograms showed a significant deterioration in the hearing which could not be explained on the basis of occupational noise exposure.
In a decision dated January 20, 2016, the worker was advised that he did not qualify for a PPD award as his hearing loss did not meet the standard deficit of 35 decibels or over in each ear. On May 27, 2016, the worker appealed the decision to Review Office. The worker commented that his hearing loss was coupled with tinnitus.
On August 2, 2016, Review Office confirmed that there was no entitlement to a PPD award. Review Office noted that the file information showed that the date of the first screen/audiogram testing indicated signs of noise induced hearing loss ("NIHL") in 1973. The worker retired in 1998 and the first audiogram conducted by a certified audiologist was on July 21, 1999.
Review Office stated that it agreed with the opinion outlined by the WCB ENT consultant that the average loss of hearing in the worker's right ear was 28.75 decibels and the average loss of hearing in his left ear was 31.25 decibels. As per WCB policy, the worker did not meet the minimum standard (greater than 35 decibel loss in each ear) to merit a PPD rating/award. The 2005 and 2015 audiograms showed a significant deterioration in the worker's hearing which could not be explained on the basis of occupational noise exposure, as the worker retired in 1998. The further deterioration also did not merit a PPD rating/award.
Review Office acknowledged that the worker suffered from tinnitus. The condition became a rateable impairment for accident dates effective August 1, 2000. As such, there was no provision to provide a PPD rating/award for tinnitus for the worker's claim.
On August 9, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
On September 23, 2016, the worker provided the appeal panel with a letter from his treating physician dated September 21, 2016 for consideration.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act ("WCA"), regulations and policies of the WCB Board of Directors.
As the worker is employed by a federal government agency or department, his claim is therefore adjudicated under the Government Employees Compensation Act (the "GECA"), which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.
Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.
At the outset, the panel notes that as the worker’s claim dates back to 1973, his benefits are to be assessed under the WCA as it existed at that time.
Payment of compensation for permanent disability under the WCA in effect in 1973 was provided for under subsection 32(1), which read as follows:
Permanent partial disability:
32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.
Hearing loss claims arising in 1973 are assessed pursuant to Impairment Rating Schedule (the "Schedule") which was established in 1946. The “Impairment of Hearing” section of the Schedule 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, 1,000, 2,000 and 3,000 hertz.
In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear and the hearing loss in decibels is converted into percentage of impairment….
The Worker's Position
In his appeal form, the worker advised that he has minimal hearing and suffered a permanent hearing loss. The worker provided a letter from his current physician, dated September 21, 2016. The physician noted that:
During my consultations with him, he has shown significant psychological distress related to difficulty in hearing despite wearing a hearing aid. He also has constant tinnitus which affects his quality of life.
In a letter to the WCB Review Office the worker indicates that:
I am asking for a monetary entitlement for my hearing loss. My hearing loss is coupled with tinnitus. I have had both the hearing loss, together with the tinnitus since 1998. Although I have sought expert medical help…Sep 1999, I was told that 'yes I have tinnitus, but there is nothing medically that can be done". I have had bouts of suicidal thoughts and much suffering as the tinnitus is a high frequency 'whistle' and is constantly with me. This tinnitus also greatly interferes with my hearing as I am always having to "hear over it"…
The worker advised that he has hearing aids that have tinnitus programs installed, but the hearing aids did not work as he has had his tinnitus for too long and at best are a mask for tinnitus.
Analysis
The worker is appealing the WCB decision that he is not entitled to a permanent partial disability award. For the worker's appeal to be approved the panel must find that the worker's noise induced hearing loss meets the minimum hearing loss threshold set out in Board Policy 44.90.10, Permanent Impairment Rating Schedule.
The panel reviewed the worker's file and notes that the first screen/audiogram test indicating signs of NIHL was conducted in 1973. The first audiogram conducted by a certified audiologist was on July 21, 1999. The panel also notes that the worker retired in 1998.
In accordance with usual practice, the worker's file was reviewed by the WCB ENT consultant. The ENT consultant noted that the readings on the audiologist's report for 3000HZ was missing and therefore substituted the reading for 4000 Hz. The ENT consultant calculated the worker's average loss to be 28.75 decibels in the right ear and 31.25 decibels in the left ear. The panel accepts the ENT consultant's calculations and opinion.
To be granted a permanent partial disability award the average loss must be 35 decibels in each ear. Accordingly, the worker does not meet the minimum rating to receive a PPD award.
The panel notes that the worker's hearing loss appears to have deteriorated further after the worker retired in 1998. The panel is not able to grant an award for deterioration that arises when the worker is no longer subjected to workplace noise. The best evidence for the work-related portion of the worker's total NIHL is the July 21, 1999 audiogram, done soon after the worker retired.
The worker identified two other issues arising from his hearing loss. He advised that he suffers tinnitus. The panel notes, however, that there is no provision for tinnitus for claims arising prior to April 1, 2000. The worker's claim arises before this date and therefore the panel is not able to grant the worker an award for tinnitus.
The worker and his current physician also advised that the worker suffers psychological symptoms resulting from his hearing loss and related tinnitus. The panel notes that the worker has not filed a claim for psychological injury arising from the hearing loss and therefore is not able to consider this aspect of the worker's complaints.
The panel finds, on a balance of probabilities, that the worker's appeal for a permanent partial disability award is not approved. The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, B. Kosc
- Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of November, 2016