The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for hearing loss was not compensable. A hearing was held on February 23, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 23, 2015, the worker filed a Worker Hearing Loss Report with the WCB. The worker reported that his hearing loss came on gradually and that he did not report it to his employer. He noted that he had ringing in both ears and his right ear was the worst. The noise at work was occasional and he wore ear plugs.

The Employer Hearing Loss Report dated July 15, 2015 stated that the worker began his employment on October 20, 1975 and retired on May 18, 2013. The employer described the worker's job titles as a labourer, assistant operator, operator and senior operator. The machinery/equipment used was centrifuges, power pumps, miscellaneous motors, compressors, deep well pumps, backhoes and hauling trucks. The worker's exposure was four to six hours per day. The employer confirmed that the worker did not report any hearing difficulties to the employer.

In a memorandum to file dated June 26, 2015, a WCB case manager documented information he obtained from the worker regarding the nature of his hearing loss difficulties and how his hearing

loss progressed. The worker provided details regarding his employment history from 1969 onwards, his use of hearing protection over the years and his extra-curricular activities. The worker advised that it was his left ear that was worse, not the right as indicated on his hearing loss report.

An audiogram report dated June 15, 2015 and an audiometric record of periodic hearing test results between 1985 and 2012 are on file. File information also contains various noise level reports, including Noise Monitoring Results and Noise Dosimetry Activity Reports obtained from the accident employer.

On September 1, 2015, the worker was advised that his claim for compensation was denied as the WCB was unable to relate his hearing loss to his employment with the accident employer or his prior employers.

The case manager noted that based on the hearing test results from 1985 to 2012, the worker's hearing was in the normal range up to and including 1998. Based on personal noise level monitoring for the worker and other senior operators done in 1998, it was found that the average noise levels were below 85 decibels, and that the use of hearing protection as reported would have further reduced the actual noise exposure. The case manager noted that although the worker's hearing declined in his left ear after 1998 and his right ear after 2007, the WCB was not able to relate this to his employment.

On July 4, 2016, the worker advised that he disagreed with the case manager's decision to deny his claim. The worker noted that the case manager based his decision on a one day noise level study done in 1998. The worker stated:

This one day noise level study does not reflect a true picture of noise exposure over my 37.5 years working at the plant. There were numerous days when the noise level was above 85 dB for short or long periods and this continued exposure has contributed/worsen (sic) my hearing loss. Many changes have occurred at the plant since 1998, which was 15 years prior to my retirement in 2013.

On August 5, 2016, Review Office confirmed that the worker's claim was not acceptable. Review Office stated, in part, that the audiogram on file dated June 15, 2015 showed a pattern consistent with presbycusis, an age-related condition. It noted that the worker clearly had significant sensorineural hearing loss, which might well be a combination of noise-induced hearing loss ("NIHL") and age-related degenerative factors.

Review Office noted that the audiological test results covered the period 1985 to 2012. It found the worker's test results in 1985 to be essentially normal and symmetrical. Review Office

acknowledged there was a noticeable shift in the worker's hearing which might be noise-related, but was not able to find that the shift was related to an occupational exposure. On October 31, 2016, the worker 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'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.

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.

Worker's Position

The worker was self-represented.

The worker's position was that the decision to deny his claim was based on just one day of noise level monitoring in 1998, with one person wearing a monitor, and that this did not accurately reflect his noise exposure over the length of his employment. The worker submitted that every day was different, and the noise levels changed. He was exposed to louder noise for periods of time.

The worker commented that while the decision also referred to hunting, he had only hunted for a short period of time, and all his outside activities were silent sports such as hiking, cross country skiing and mountain biking.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. The employer's position was that the weight of evidence did not demonstrate that the worker's hearing loss was

related to his work, and the Review Office decision should be upheld.

The employer's representative submitted that noise level testing showed that the worker was not exposed to the noise levels which were required under the WCB Policy to produce an acceptable claim. The noise level testing was the best available evidence with respect to the worker's exposure or potential exposure to noise, and should be given greater weight than other available information concerning his exposure to noise. Further, there was a clear indication from information on file, as confirmed by the worker, that he was using hearing protection from a certain point forward.

It was submitted that significant weight should also be given to the medical information indicating that the worker's hearing loss was not symmetrical as would be expected for NIHL caused by workplace exposure. This demonstrated that the worker's hearing loss was not caused by compensable factors or exposure.

Analysis

The issue on this appeal is whether or not the claim is acceptable. The claim has been advanced on the basis of long-term exposure to noxious levels of occupational noise resulting in noise-induced hearing loss. For the worker's appeal to be successful, the panel must find that the worker sustained 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 is unable to make that finding.

The criteria under the Policy provide that 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. This is the threshold that must be met. Based on the evidence before us, the panel is not satisfied that this noise threshold has been met.

The panel spent a considerable amount of time at the hearing questioning the worker with respect to his job duties over the course of his employment, including the time he spent on different tasks and in different areas of the workplace, and what he considered to be the loudest areas and equipment.

The evidence shows that the worker's hearing was within the normal range well into the 1990s. The worker said that he did not recall noticing changes in his hearing through the mid 1990s or having issues with his hearing prior to the past ten years or so.

The worker worked as a senior operator from approximately 1990 onwards. He described the position as basically that of a foreman. He worked from 7:30 to 4:00 five days a week, and his work varied from day to day. He did everything from payroll to dealing with problems, issuing work orders and ordering materials. He had a fair amount of administrative duties, and estimated that he spent 20% or more of his time during the week in the main office. In performing his other duties, he would be going in and out of different parts of the facility. The time he spent in high noise areas would vary: sometimes it would be very little, sometimes a lot depending on whether he had to deal with mechanical problems. When there was a problem or maintenance issue, he would generally be instructing or directing staff as to how to take care of the problem then leaving them to do the work.

The worker said the facility was divided into 3 general areas and there were 3 senior operators. Different things were done in each area. The senior operators rotated through the areas for a period of time, but then it was decided that it would be better if they were each assigned to a particular area.

Much of the focus on the appeal was on the adequacy of the noise level testing which was done in early 1998. The panel reviewed the 1998 test results and reports in detail with the worker, and notes that he was generally unable to identify anything that was wrong with them.

With respect to that noise level testing, information on file indicates that the exposure to noise of each of the 3 senior operators was monitored for a full day in February 1998, and in the worker's case, for a second full day on March 17, 1998. The monitoring was done using dosimeters, and the levels of exposure were recorded at one minute intervals. The Noise Monitoring Results report for the worker stated, in part:

The monitoring of your exposure to noise within your workplace, revealed that you were exposed to an equivalent sound exposure level (Time Weighted Average based upon an 8 hour Work shift) of 76.5 and 79.7 decibels respectively…While your exposure to noise can vary on a daily basis depending upon the types of noise producing activities that occur, we believe that the sampling is a good estimation of your actual noise exposure. Based upon the monitoring of other…senior operators, the average equivalent sound exposure level is 78.9 ±2.1 decibels.

A graph of the worker's test results indicated that his exposure above 84 decibels was approximately 5% of the day. Asked whether it was fair to say that this was close to being accurate on a daily basis, the worker stated "Yes, I would have to agree."

Included with the monitoring results was a Noise Dosimetry Activity Report on which each worker had been asked to describe the type of activity and areas of the workplace where the work was being performed during the monitoring period. The worker acknowledged at the hearing that the activity as recorded on this report for March 17, 1998 under his name was typical of what he would be doing, with louder and quieter activity during the day.

A Noise Monitoring Results report for one of the other senior operators stated that the monitoring of his exposure to noise on February 10, 1998 revealed that he was exposed to a higher equivalent sound exposure level of 81.3 decibels. A description of the operator's activities was similarly provided in his Noise Dosimetry Activity Report. When asked about those activities, the worker indicated that this was the area where he himself had spent the majority of his time, and that the activity as described was typical of that area and of what he might have been doing in that area. The panel notes that while the monitored noise levels for this second area were higher, they were still significantly below the 85 decibel level required under the Policy.

There is also data on file with respect to particular machines which the worker identified as the noisiest ones he worked with or around in the course of his employment, including a report dated December 28, 2010 which identifies various machines which had equivalent noise exposure in excess of 85 decibels. The panel is satisfied, however, that the evidence establishes that the worker was not in the particular areas where the machines were or working in proximity to these machines long enough or on a sufficiently regular basis to meet the criteria under the Policy.

The panel further notes that the worker's evidence was that he started wearing hearing protection in 1984 or 1985, when hearing protection programs came into place. His preference was ear plugs, which had a manufacturer's rating of 29 to 33. He could not say what percentage of his time he would have been using hearing protection in the noisiest areas. The panel is satisfied that the use of hearing protection would have had the general effect of further reducing the level of noxious noise to which the worker was exposed.

In addition, the evidence shows that the worker's hearing loss is asymmetrical. It developed earlier and is worse in the worker's left ear than his right. The panel notes that it is unusual in work-related NIHL cases for there to be a significant difference in hearing loss between the left and the right ears. The panel was unable to identify anything which would account for such a difference in this case. When the worker was asked at the hearing whether he could recall anything obvious at work which would suggest that his left ear was exposed to more noise than his right, he responded that he could not and that he found this odd too.

Based on the foregoing, the panel finds that the worker did not sustain a 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 is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 19th day of April, 2017