Decision #69/17 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that his left ear hearing loss was not a consequence of the January 11, 2016 accident and that he was not entitled to further benefits. A hearing was held on April 26, 2017 to consider the worker's appeal.
Whether or not the worker's left ear hearing loss is a consequence of the January 11, 2016 accident; and
Whether or not the worker is entitled to further benefits.
That the worker's left ear hearing loss is not a consequence of the January 11, 2016 accident; and
That the worker is not entitled to further benefits.
On January 11, 2016, the worker was eating in the workplace lunch room when a sandfill air line exploded. The worker said he was sitting 15 to 20 feet away from the steel door when the blast occurred. He was not wearing a helmet or ear muffs at the time. The worker reported loss of hearing in his left ear as well as ringing.
On March 30, 2016, a WCB ear, nose and throat ("ENT") consultant reviewed the file information and stated:
Comparison between April 2015 (pre-accident) and March 2016 (post-accident) audiograms shows an average deterioration of 24.3 dB in the left ear. The hearing in the right ear remains within the normal range…There is evidence of a traumatic hearing loss in the left ear.
In a note to file dated April 7, 2016, a WCB adjudicator stated that she advised the worker during a telephone call that his claim was approved for traumatic hearing loss in his left ear. In a report to the WCB dated April 11, 2016, the treating audiologist prescribed the worker a hearing aid for his left ear.
On May 8, 2016, the WCB's ENT consultant stated:
It is too early to consider hearing aids or a PPI (permanent partial impairment) entitlement at this time. There is a possibility that the hearing in the left ear will improve. The worker should have his hearing re-tested in about 6 months.
In a report to the treating audiologist dated May 24, 2016, an otolaryngologist stated:
His hearing loss is certainly not typical of what one would see with loud noise exposure, however, it can happen. I do not suspect any other pathology that needs investigating at present. Tinnitus counselling was given. Only time and a repeat hearing test will tell us if any improvement in his hearing is possible. I would strongly recommend him being fitted with a hearing aid in his left ear.
On August 2, 2016, the claim file was again reviewed by the WCB's ENT consultant who stated that the hearing loss cannot be explained on the basis of the compensable injury.
By letter dated August 18, 2016, the worker was advised by Compensation Services that they were not able to relate his current left ear hearing loss difficulties to the noise exposure that occurred on January 11, 2016.
On December 8, 2016, the above decision was appealed to Review Office by the Worker Advisor Office. The worker advisor argued that there was no medical information to show that the worker had any residual left ear difficulties or hearing loss following treatment of his left ear infection in 1995. The medical information showed that the worker sustained a traumatic injury to his left ear on January 11, 2016 and that his left ear hearing loss had progressively worsened since the accident. The worker advisor noted: "Although the otolaryngologist said the worker's hearing loss was not typical of loud noise exposure he also says it can happen." The worker advisor concluded that because the worker's left ear hearing loss had steadily declined since the traumatic injury, this was significant evidence to support a causal relationship.
On February 6, 2017, Review Office determined that the worker's current level of hearing loss was not related to his compensable accident and there was no entitlement to further benefits.
Review Office referred to specific file information to support that the noise levels produced by the hose rupturing was not sufficient to create permanent hearing loss. Although the worker said his hearing was "fine" before the accident, Review Office indicated that the evidence did not support a cause and effect relationship between the two. The worker's current hearing loss in his left ear was not explained by the January 11, 2016 accident, and his need for a hearing aid was unrelated to the accident.
On February 13, 2017, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing 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.
WCB Policy 18.104.22.168, Noise-Induced Hearing Loss (the "Policy") notes that permanent hearing loss can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise. With respect to a workplace event, the Policy states:
Hearing-loss claims that are the result of trauma or a single exposure to occupational noise are adjudicated in the same manner as other workplace injuries…
With respect to prolonged exposure to excessive noise, the Policy notes that not all hearing loss is caused by exposure to noise at work, and states:
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.
The worker has an accepted claim for an injury that occurred on January 11, 2016. The worker is appealing the WCB decision that his left hearing loss is not a consequence of the January 11, 2016 accident. He is also seeking further wage loss benefits arising from this accident. The primary issue involves causation, specifically whether the worker sustained a hearing loss as a result of the accident.
The worker was represented by a worker advisor who provided a written and oral submission.
The worker's representative advised that the worker does not agree with the Review Office decision. She submitted that the worker's current left ear hearing loss is a consequence of the January 11, 2016 compensable injury, and that he should be entitled to coverage for a hearing aid.
The worker explained that his job involves use of a drill, but that he always wears earmuffs for hearing protection. He said he only takes off his earmuffs when he is in the lunch room.
The worker attributed his hearing loss in his left ear to an incident that occurred on January 11, 2016. He explained that on this day there was an air pipe explosion outside the lunchroom door. He said he and a co-worker were in the lunchroom, sitting about 30 feet from the door when they heard a hissing sound. They got up to see what was happening. He said:
…we got about five feet from the door, then all of a sudden, boom, the pipeline blew and it just slammed the door shut, you know, and, just loud.
The worker said that an eight-inch airline, with many pounds of pressure exploded. His immediate symptom was "a ringing, like a slight ringing in my ears, and it eventually went away for a while."
The worker said he went to check on the worksite after the airline blew, and that on the way back his ears were starting to get worse, and they started getting loud ringing noises in his ears, and he was getting bad headaches. He said that when he and his co-worker left the work area, they cleaned up, went to the hearing center on the main worksite. He said a doctor told him that he had a blood spot in his left eardrum.
The worker advised that his employer sent him off-site for more hearing tests. He was advised that ultimately the blood spot had healed but his hearing in his left ear was still poor.
The worker's representative advised that the worker was not wearing his helmet and hearing protection in the lunchroom when the explosion occurred. She noted that following the blast the worker experienced left ear pain, ringing, hearing loss and headaches.
The worker's representative noted that the WCB accepted the worker's claim. She noted that in a February 3, 2016 audiology report stated, the worker reported that he was exposed to an air line explosion in January while working underground. Left ear hearing difficulties were reported and the left ear test results indicate a mild mixed hearing loss with good speech discrimination ability and normal tympanic mobility.
The worker's representative also noted that the worker received audiology testing in January, February, March and June of 2016. The test showed a progressive deterioration in his left ear hearing. She said the WCB obtained a pre-accident audiogram from April 2015, and compared it to the post-accident March 2016 audiogram, which showed an average deterioration of 24.3 decibels in the left ear.
The worker's representative noted a WCB medical advisor stated in a memorandum on file dated July 14, 2016, that the recent audiogram dated June 16, 2016, shows a significant deterioration in the hearing in the left ear, but that this cannot be explained on the basis of the compensable injury of January 11, 2016.
In answer to questions, the worker said there were several noises associated with the incident. These included the noise of the air line exploding, the continuous hissing noise of the ruptured air line, and the loud bang when the lunchroom door was blown shut.
The worker's representative provided the panel with an article from an on-line source dealing with acoustic trauma.
The worker's representative submitted that:
We have medical evidence of damage to [worker's] tympanic membrane on the left ear following the explosion, and we have evidence of sudden progressive hearing loss, very short layoff to the January 2016 incident. We’ve provided some information today on acoustic trauma, and this shows that hearing loss can result from an explosion type of noise, and that the hearing loss will be progressive and permanent. Can be progressive and permanent. It’s our opinion the weight of evidence supports [worker's] left ear hearing loss is a consequence of the January 11, 2016 incident.
The employer did not participate in the appeal.
The worker has an accepted claim arising from a January 11, 2016 workplace accident. He is appealing the WCB decision that his claim for hearing loss arising from this incident is not acceptable. For the worker's appeal to be successful, the panel must find that the worker's hearing loss was caused by his workplace duties and specifically resulted from the accident that occurred on January 11, 2016.
The panel is not able to make that finding. The panel finds, on a balance of probabilities, that the worker's left hearing loss is not a consequence of the workplace accident and his resulting exposure on January 11, 2016. In arriving at this decision, the panel has considered the facts surrounding the incident and the medical information the file.
Regarding the circumstances surrounding the blast, the worker advised that he and his co-worker were sitting in the lunchroom, approximately 30 feet from the lunchroom door and had removed their hearing protection. The lunchroom door was open about a foot and a half to two feet because the room was warm. When the hissing began they walked towards the lunchroom door and were within 5 feet of the door when the explosion occurred. The lunchroom door slammed shut. The worker and co-worker put their hearing protection on after the explosion occurred. The worker estimated that the air line was 15 feet from the lunchroom door.
The panel notes that the lunchroom was a designated safe area. The panel also notes that the worker's hearing loss was asymmetrical which would not be expected in this type of incident. As well, the panel notes that the co-worker did not file a claim for hearing loss as a result of the incident.
Regarding the medical information, the panel notes the opinion of the audiologist who performed the hearing tests. The audiologist commented:
[Worker] was exposed to a loud noise following an airline explosion underground in January of this year. Interestingly he's demonstrating a flat configuration hearing loss that is inconsistent with the noise exposure in my opinion.
The panel also notes the opinion of the worker's otolaryngologist that the worker's hearing loss is not typical of what one would see with loud noise exposure. The panel notes that the otolaryngologist did acknowledge that it is possible for this to occur, but provided no explanation for how it might occur.
The panel notes and relies upon the August 2, 2016 opinion of the WCB's ENT consultant which stated:
The recent audiogram…dated June 16, 2016 shows a significant deterioration in the hearing in the left ear. This deterioration is mixed in nature with a sizable conductive component. This cannot be explained on the basis of the C.I. (compensable injury) of Jan. 11, 2016.
According to the report from [otolaryngologist], dated Oct. 23, 1995, the worker has been complaining of intermittent left ear discharge, associated with hearing loss. Examination revealed infection in the left ear with granulation tissue over the tympanic membrane. These are signs of chronic ear infection.
According to the [audiologist] report of March 8, 2016, the configuration of the hearing loss in the left ear is flat and is inconsistent with noise exposure.
The panel is not able to find, on a balance of probabilities, that the worker's left hearing loss is a result of the January 2016 workplace incident. The worker's appeal is dismissed.
Whether or not the worker is entitled to further benefits.
Given the panel's findings on the first issue, the worker is not entitled to further benefits.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of May, 2017