Decision #60/17 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to bilateral hearing aids. A file review was held on March 15, 2017 to consider the employer's appeal.
Whether or not the worker is entitled to bilateral hearing aids.
That the worker is entitled to bilateral hearing aids.
On February 16, 2016, the worker's case was considered by the Appeal Commission to determine whether or not his claim for compensation was acceptable. On May 19, 2016, the Appeal Commission granted the worker's appeal and found that his claim was acceptable for noise induced hearing loss (NIHL). For complete details regarding the panel's decision, please see Appeal Commission Decision No. 75/16.
On June 27, 2016, the worker was advised by Compensation Services that he was not entitled to hearing aid(s). The letter stated, in part:
Occupational noise induced hearing loss is typically symmetrical in both ears. We have not been able to establish a work related cause for the asymmetry in your hearing loss. In the absence of an occupational cause for the asymmetry in your hearing, we are not able to establish the increased hearing loss in your right ear was related to your employment.
Furthermore, while we were able to confirm you were exposed to noise, in 1994 a hearing aid for your left ear was not required. It is generally accepted in medical literature that further deterioration in hearing will not occur as a result of prior noise exposure once an individual is removed from the noxious noise levels.
As such, we are unable to determine that your current need for a hearing aid for your right ear is the result of exposure to noise at work in Manitoba and we are unable to accept responsibility for hearing aids.
On October 19, 2016, the worker's union representative appealed the June 27, 2016 decision to Review Office. On November 30, 2016, the employer's representative submitted that the decision of June 27, 2016 should be maintained.
On December 19, 2016, Review Office determined that the worker was entitled to hearing aids. Review Office stated that it found the reasons for denying hearing aids to the worker confusing and not consistent with the decision made by the Appeal Commission. Review Office noted that the Appeal Commission accepted the worker had bilateral hearing loss due to his employment and thus his claim was accepted for hearing loss in both ears. Based on WCB policy and the recommendations made by the registered audiologist on September 24, 2014, Review Office confirmed that the worker was entitled to hearing aids for his left and right ears.
On January 9, 2017, the employer's representative appealed Review Office's decision to the Appeal Commission and a file review was arranged.
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.
Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
WCB Policy 188.8.131.52, Noise-Induced Hearing Loss (the "Hearing Loss Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise that causes hearing loss. Section 7 of the Policy states as follows:
7. When the WCB accepts a claim for noise-induced hearing loss and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the WCB under Policy 44.120 or 44.120.01, Medical Aid.
WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy") deals with the provision of recommended devices, including hearing aids. As it relates to the provision of medically prescribed devices and related accessories, the Policy provides as follows:
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.
The employer was represented by its Workers' Compensation Claims Officer. The employer's representative stated that they did not agree with Review Office's interpretation of the Appeal Commission decision. The employer's position was that Compensation Services' decision of June 27, 2016 was correct, and the worker is not entitled to hearing aids.
The employer's representative relied on their November 30, 2016 submission. He noted that the Appeal Commission decided that the worker's claim for NIHL was acceptable as he would have been exposed to noxious noise in the course of his employment. The entitlement to hearing aids was not part of that decision, and this was the reason the file was referred back to Compensation Services. On June 27, 2016, when speaking to the WCB regarding his entitlement, the worker still could not explain the asymmetry in his hearing loss. As no evidence had been presented to explain the asymmetrical results in relation to the worker's job duties, Compensation Services correctly decided there was no entitlement to hearing aids.
The employer also disagreed with the Review Office having approved hearing aids for both ears. The employer's representative submitted that the Appeal Commission had agreed with the WCB ENT consultant's conclusion that a hearing aid was not required for the left ear, and the evidence on file suggested that a hearing aid was not needed for the worker's left ear.
The worker did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to bilateral hearing aids. For the employer's appeal to be successful, the panel must find that the worker does not require a hearing aid for his right and/or left ear as a result of an occupational noise-induced hearing loss. The panel is unable to make that finding, for the reasons that follow.
The previous appeal panel, in Appeal Commission Decision No. 75/16, found that the worker had bilateral noise-induced hearing loss, as follows:
It is the panel's understanding that the configuration of the test results as shown on the worker's 2014 audiogram and as reflected on the recorded results for the 2012 audiogram are consistent with NIHL in both ears.
The panel places great weight on the opinion of the WCB ENT consultant who reviewed the worker's hearing tests and determined that the worker had noise induced hearing loss, the signs of which were in both ears. While the consultant reported that the date of the first audiogram indicating signs of NIHL in both ears was 2012, the panel notes that the information on file shows that there were large gaps in testing, with the closest previous test having been more than 11 years earlier, in 2001. The panel notes that the WCB ENT consultant's final comment that based on the 2014 audiogram, "a hearing aid is not needed for the left ear at this time" is not inconsistent with his conclusion that the worker has NIHL in both ears.
In all of the circumstances, the panel accepts and adopts the WCB ENT consultant's opinion that the worker has bilateral NIHL.
The appeal panel went on to consider whether the worker's NIHL was related to his employment, and found:
… that the worker sustained a NIHL during the course of his employment due to exposure to levels of noxious noise within the WCB Policy requirements, and that his claim for hearing loss is acceptable.
The previous appeal panel made no findings with respect to a non-compensable component of the worker's NIHL. In our view, the decision by the previous appeal panel indicates that the worker's entire hearing loss in both ears is related to his long-term exposure to occupational noise and is compensable.
On September 24, 2014, the treating registered audiologist assessed the worker's hearing and documented that he had "mild flat sensorineural hearing loss bilaterally in mid-high frequencies...Experiencing difficulty communicating in crowds and certain environments. Recommend trial with binaural amplification."
Section 7 of the Hearing Loss Policy contains mandatory language ("shall") and outlines two prerequisites for entitlement to a suitable hearing aid: an accepted claim for noise-induced hearing loss and a specialist's recommendation. The panel is satisfied that both of these conditions have been met.
Based on the foregoing, the panel finds that the worker requires hearing aids for both his right and left ears as a result of an occupational noise-induced hearing loss.
The panel therefore finds that the worker is entitled to bilateral hearing aids.
The employer's appeal is denied.
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 12th day of May, 2017