Decision #50/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a hearing aid for his right ear. A review was held on February 28, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to a hearing aid for his right ear.
Decision
That the worker is not entitled to a hearing aid for his right ear.
Background
On December 1, 1989, the worker filed a claim with the WCB for a work-related hearing loss. The worker indicated that he had been exposed to a blast or loud explosion at work. His claim for compensation was accepted for noise induced hearing loss in his left ear due to an accident at work. The worker was provided with a hearing aid and awarded a permanent partial disability (PPD) rating of 1%. The 1% PPD rating was confirmed by Review Office and then by the Appeal Commission on March 22, 1991.
By letter dated July 15, 1991, the WCB confirmed that they had accepted responsibility for a hearing aid for one ear, as well as reasonable costs associated with batteries and maintenance.
On November 27, 2000, the worker wrote the WCB stating that he wished to have his hearing aid replaced. The worker stated "I am not able to wear it or use it near any noise without having to adjust it constantly, rather a nuisance. I own and operate a paint store and the paint shakers are very disturbing with it."
In a letter dated February 27, 2001, the worker was advised that the WCB would cover his replacement hearing aid along with a fitting fee and assessment fee. In a memorandum to file dated April 6, 2001, a WCB adjudicator noted that the worker owned a paint store in another province and had been self-employed since the fall of 1990. He was exposed to noise from the paint shaker but the exposure was less than an hour per day. He would put the paint on the shaker, set the timer and walk away. Each exposure would be only about a minute. The worker was initially supplied with one hearing aid (left ear) due to the exposure at work. The audiologist had suggested he now required two hearing aids.
On May 4, 2001, a WCB ear, nose and throat ("ENT") consultant reviewed audiogram results dated March 27, 2001. The consultant stated that according to a February 21, 1990 audiogram, a hearing aid was not needed for the right ear. The March 27, 2001 audiogram showed deterioration in both ears. This was due to age and noise exposure at his paint shop. The consultant opined that the additional hearing loss was not due to the compensable injury, and the requirement for a second hearing aid was not as a result of the compensable injury.
In a letter to the worker dated May 14, 2001, the WCB adjudicator stated: "The information on file establishes that when tested in 1990, you did not require a second hearing aid for your right ear at that time. Although further hearing loss requiring additional aid occurred after 1990, the hearing loss occurred while you were self-employed in the province of [name]. Given that further hearing loss is not related to your employed (sic) in Manitoba, the WCB is unable to accept responsibility for the additional hearing loss."
On May 9, 2002, the worker wrote to the WCB and stated: "I just got a new hearing aid; they say that I only qualify for one by your instructions. But it is hard to balance my hearing to the other ear with the reduced hearing in my right ear. I remember when I got the first one…it was expressed by the audiologist that I should have two, as the hearing in the right ear was impaired as well, but at the time I opted for just one, not realizing that it would jeopardize my claim in the future when the hearing in the other ear further determinate (sic). Now I see that it has done so. I would sincerely like to have this claim reviewed."
In a letter dated May 14, 2002, the WCB adjudicator confirmed to the worker that no change would be made to the May 14, 2001 decision that Manitoba's WCB would not be responsible for the costs related to a right hearing aid.
On June 26, 2002, the worker wrote to the WCB and stated: "As in a discussion with my Hearing Specialist here in [province], it was not common practice to have two hearing aids a dozen years ago. That was only for the most extreme cases. So when it was suggested to me by the specialist in Manitoba at the time, I really did not want one never mind two hearing aids, which I got at the time…I again ask you to review my application for another hearing aid for the other ear."
In a letter dated July 10, 2002, the adjudicator advised the worker that Manitoba's WCB was unable to cover the cost of a right hearing aid. He noted that a deterioration of the worker's hearing in his right ear occurred in 1990, while he was working in another province.
On October 20 and November 4, 2010, the worker wrote to the WCB, requesting coverage for a right side hearing aid. On November 8, 2010, the WCB confirmed to the worker that no responsibility could be accepted for the cost of a right hearing aid. On November 24, 2010, the worker appealed the decision to Review Office.
On January 6, 2011, Review Office determined there was no entitlement to a hearing aid for the worker's right ear.
Review Office noted that audiogram results dated February 21, 1990 showed that the worker had a 15 decibel loss in his right ear and a 50 decibel loss in his left ear. These findings did not support that the worker required a hearing aid for his right ear. Review Office noted that the first recommendation for a right ear hearing aid was made on March 27, 2001.
Review Office concluded that the file evidence did not support that the requirement for a right side hearing aid was related to the worker's exposure to noxious noise while working in the Province of Manitoba. Review Office found that it was more probable that the worker's exposure to noise in his paint store contributed to the hearing loss in his right ear. In November 2016, the worker 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. The panel notes that the worker's claim dates back to 1989. Accordingly, the worker's benefits are to be assessed under the Act as it existed at that time.
Subsection 4(1) of the Act as it existed in 1989 provided 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.
Payment for treatment in addition to compensation was provided for under subsection 27(1) of the Act, which read as follows:
27(1) In addition to the other compensation provided by this Part, the board may provide for the injured worker such medical, surgical, and hospital treatment, transportation, nursing, attendant care, medicines, crutches, and apparatus, including artificial members, as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury: and the board may adopt rules and regulations with respect to furnishing medical aid to injured workers entitled thereto, and for the payment thereof.
WCB Policy 44.120.10, Medical Aid (the "Policy") allows for the provision of recommended devices, including hearing aids. The Policy sets out a coordinated approach to delivery of medical-aid services to injured workers. As it relates to the provision of medically prescribed devices and related accessories, the Policy provides as follows:
2. Medically Prescribed Treatments, Devices and their Related Accessories
To minimize the impact of workers' injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices, including prescription drugs, over-the counter medical supplies, braces, prosthetic devices, wheelchairs, dentures, hearing aids, eye glasses, contact lens and other devices.
a. Medically Prescribed Treatments and Prosthetic Devices
i) The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prostheses when required by reason of a compensable injury, and the treatment or device is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.
Worker's Position
The worker provided a written submission outlining his reasons for appealing the Review Office decision.
The worker's position was that he is suffering from a bilateral hearing loss and the primary reason for that loss was the workplace incident in 1984. The worker submitted that this was a horrific incident, where he was literally blown off his feet by an explosion and slammed against the opposite wall, and his hardhat and earmuffs were blown off.
The worker submitted that he was told initially that he would require two hearing aids. Not realizing how serious the injury was, he protested and was equipped with only one hearing aid. Since then, he has had to purchase a hearing aid for the right ear and pay for it himself. He stated that several audiologists had indicated that further deterioration was imminent, normal, and to be expected after such a horrendous incident.
The worker provided a letter from a treating physician dated August 11, 2016 in support of his appeal. A letter from a hearing instrument specialist dated October 16, 2016 and a hearing assessment dated September 30, 2016 were also provided.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue on this appeal is whether or not the worker is entitled to a hearing aid for his right ear. For the worker's appeal to be successful, the panel must find that the worker requires a hearing aid for his right ear as a result of an accident or noise induced hearing loss which is related to his employment in Manitoba. The panel is unable to make that finding.
The worker's claim was accepted in 1990 for a noise induced hearing loss in his left ear based on a work-related accident several years earlier. A hearing aid was approved and provided for the worker's left ear only.
Early reports and audiograms from 1989 and 1990 do not support that the worker had suffered a similar loss of hearing in his right ear or required a hearing aid for the right ear at that time. On March 30, 1990, the WCB ENT consultant noted that a February 21, 1990 audiogram showed marked asymmetry between the two ears. The consultant further opined that the hearing in the worker's right ear was normal or near normal. Based on the medical records at that time, the panel is unable to find that the worker required a hearing aid for his right ear in 1990.
The panel notes that while the worker has stated that he was told from the beginning that he required or should have two hearing aids, the information on file does not support that assertion. Reports in 1990 from both the audiologist and the WCB ENT consultant expressly recommended amplification or a hearing aid for the left ear only.
File information shows that the worker was laid off from his employment in late 1989, and moved away from Manitoba in August 1990. The panel finds that the worker was therefore not exposed to noxious noise in Manitoba after that time.
File information further shows that the first recommendation for hearing aids for the worker's right ear was in 2001. A comparison of February 21, 1990 and April 27, 1990 audiograms with audiograms from 2001 and after, show that the hearing in both of the worker's ears deteriorated subsequent to 1990, and therefore after the worker left Manitoba. In these circumstances, the panel finds that this deterioration and loss of hearing in the worker's right ear and his current need for a hearing aid for that ear are not related to his compensable injury or his employment in Manitoba.
Based on the foregoing, the panel finds that the worker's requirement for a hearing aid for his right ear is not as a result of an accident or noise induced hearing loss related to his employment in Manitoba.
The panel therefore finds that the worker is not entitled to a hearing aid for his right ear.
The worker's appeal is denied.
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 26th day of April, 2017