Decision #181/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to hearing aids. A file review was held on November 2, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to hearing aids.
Decision
That the worker is entitled to hearing aids.
Background
On May 21, 2009, the worker filed a claim with the WCB for noise induced hearing loss.
On May 6, 2009, a WCB adjudicator contacted the worker to discuss his claim. The worker stated that he was employed with the accident employer for 30 years and that he retired in 2004. In his work environment, he was exposed to constant grinding and welding on steel and he was exposed to equipment noises from lathes, boring machines and other grinders.
On July 22, 2009, the worker was advised that his claim for noise induced hearing loss was accepted as it was determined that he had been exposed to noxious levels of noise while working in the province of Manitoba. The worker was advised that based on a review of his audiogram results by a WCB ear, nose and throat ("ENT") consultant, he was not eligible for a PPD award as the average loss of hearing in his right ear was 20.00 decibels while the average loss in his left ear was 23.75 decibels. The worker was also advised that he was "a borderline candidate for bilateral hearing aids", and since his hearing loss was at a socially adequate level, he was not entitled to hearing aids at this time. Should his hearing deteriorate in the future, it was suggested that he attend an audiologist for a hearing assessment.
In October 2015, the WCB received a hearing assessment which stated that the worker required hearing aids. On October 21, 2015, it was determined by the WCB that the worker's hearing deterioration was attributed to the natural progression of aging (presbycusis) given that he had not been exposed to a noisy work environment since his retirement in 2004, 11 years ago. Based on these findings, he was not entitled to hearing aids. On November 20, 2015, the worker appealed the decision to Review Office.
On January 18, 2016, Review Office confirmed that the worker was not entitled to hearing aids. Review Office indicated that since the worker retired from the workplace in November 2004, it was unable to relate the further deterioration of his hearing (beyond April 2009 to 2015) as there was no work related activity taking place in that time period that would cause a further deterioration. While hearing aids may be medically indicated, Review Office stated the evidence did not support that the need for the aids arose from his compensable hearing loss.
In April 2016, the worker asked Review Office to reconsider their decision of January 18, 2016 based on a letter from a hearing instrument practitioner who opined that the worker should have been provided with a left hearing aid in 2009 with the option to test a right hearing aid as well. It was noted that the untreated hearing loss can decrease hearing at a faster rate and questioned whether the worker not having hearing aids caused further disability in his hearing levels.
On July 13, 2016, Review Office confirmed that there was no entitlement to hearing aids. Review Office placed weight on the opinion of the audiologist who, following the testing of the worker's hearing in April 2009, did not recommend hearing aids. In July 2009, the WCB ENT consultant agreed with the audiologist's determination that the worker did not require hearing aids at that time.
Review Office stated in its decision that any deterioration in hearing that occurs after the workplace exposure stops is not the WCB's responsibility. On September 9, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy
The worker has an accepted claim for hearing loss and is seeking hearing aids 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.
The WCB Board of Directors passed WCB Policy 44.20.50.20.02, Hearing Loss ("the Policy") which applies to hearing loss claims arising from long-term exposure to occupational noise. Section 7 of this policy deals with the provision of hearing aids to workers with accepted hearing loss claims.
Worker's Position
The worker was represented by a worker advisor who provided a written submission. The worker advisor submitted that:
The worker acquired noise induced hearing loss (NIHL) while being exposed to noxious noise working for [employer]. The worker worked for [employer] from July 3, 1974 until he retired on November 1, 2004…
On July 22, 2009 the WCB's case manager issued a decision letter stating that the worker's claim was acceptable for NIHL. She noted that because the worker was a "borderline candidate for bilateral hearing aids" at that time wrote, "should your hearing deteriorate in the future, please attend an audiologist for a hearing assessment and audiogram as you may be entitled to hearing aid at that time. Your hearing aids would be the responsibility of the WCB.
The worker advisor noted that the worker was subsequently retested on October 15, 2015 because he had noticed his hearing declined in recent years. He approached the WCB who denied responsibility for the worker's hearing loss.
In support of the worker's position, the worker advisor noted the treating hearing instrument specialist's opinion that presbycusis would not be a factor in contributing to the worker's mild high frequency hearing loss. The specialist noted that:
2. The blame laid on presbycusis in 2015, when there was no change in his left ear based on 2009 test results. And at that time hearing aids were not recommended or approved.
The worker advisor also noted that the hearing instrument specialist opined that:
It is my professional opinion that [worker] would have been fit with at least a left high frequency hearing aid, and given the an option to possibly test a right hearing aid as well. It is absolutely ridiculous that a hearing aid was not represented.
The worker advisor submitted that, in accordance with the Policy the worker's claim be accepted and that he be provided with hearing aids.
Employer's Position
The employer was represented by its Workers Compensation Claims Officer. The employer representative advised that the employer is in agreement with the Review Office, that there’s no benefit entitlement under Act. In a letter date June 15, 2016, the employer representative submitted that:
[Worker] retired from the work place in 2004. At the time of his retirement, he did not require hearing aids. [Worker] is now stating that he requires hearing aids. However, the requirement for hearing aids cannot be attributed to a work hazard as [worker] has been out of the workforce for 12 years. It is more likely that [worker's] hearing declined as a result of natural ageing. As a result, [employer] should not be held accountable for his deterioration of hearing to the point where hearing aids are required.
Analysis
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. For the worker's appeal to be approved the panel must find that worker requires the hearing aids as a result of his exposure to workplace noise. The panel finds that the worker's exposure to workplace noise is the major contributing factor to the worker's need for hearing aids. The panel finds that but for the significant workplace exposure, the worker would not require the use of hearing aids.
The panel relies upon the 2009 audiogram. While this audiogram was performed after the worker's retirement in 2004, the panel finds that it provides a reasonable representation of the worker's noise exposure at work. The panel notes that the WCB ENT specialist relied upon this audiogram in assessing the worker's hearing at that time.
Regarding the impact of aging on the worker's hearing loss, the panel attaches weight to the opinion of the current treating hearing instrument specialist. The specialist opined that that "presbycusis would not have been a factor in contributing to his mild high frequency hearing loss."
The panel notes that in 2009 the treating audiologist referred to the worker as "a borderline candidate for bilateral hearing aids." The panel attaches greater weight to the opinion of the hearing instrument specialist who opined that hearing aids should have been provided in 2009.
The panel finds, on a balance of probabilities, that the worker's need for hearing aids is derived from his workplace exposure to noise and that the worker is entitled to hearings aids.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding Officer
R. Hambley, Commissioner
S. Briscoe, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of December, 2016