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 was not acceptable. A hearing was held on April 20, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In early October 2015, the worker filed a claim with the WCB for noise induced-hearing loss ("NIHL"). The worker stated that he first became aware of a hearing problem when he retired about 10 years ago. The worker stated that his hearing loss came on gradually and the noise at work was continuous. He stated that ear protection became available after 15 years of employment and he wore hearing protection in both ears. The worker attributed his hearing loss to his 38.5 year career with his employer.

On October 27, 2015, the employer confirmed that the worker was employed continuously from September 1966 to June 2005. The worker was exposed to noise intermittently and hearing protection was implemented in 1985. The employer stated that it was unknown whether noise level testing was performed in the areas where the worker was employed and that the worker had not reported any hearing difficulties to the employer.

On October 15, 2015, the worker spoke with a WCB adjudicator and provided details regarding his medical and other history. The worker reported that he was a right-handed shooter in his youth and he used a .22 rifle. The worker indicated that he worked as a trainman for two months in the summer of 1966. From 1966 to 2005, he worked for the accident employer and his duties were as follows:

• 1966 to 1970: Auxiliary Plant Operator. He took readings on the floor and adjusted equipment as required. He did not wear hearing protection.

• 1971 to 1981: Boiler Operator. He worked in the second floor control room. During shut downs, he did his rounds on the floor when the plant was non-operational. No hearing protection was worn in the control room.

• 1982 - 2005: Thermal Operator/Supervisor: He oversaw all workers on the floor. He had an office on the turbine floor. Outside the office he wore hearing protection consistently.

The worker could not recall hearing protection being worn until the late 1970s and early 1980s. Muffs and ear plugs were available and he would double up and use both in especially noisy areas (turbine floor). Once hearing protection became available, he used it consistently.

On October 29, 2015, a WCB ear, nose and throat ("ENT") consultant reviewed audiogram results on file dated 1986 to 2015, and stated:

The earliest audiogram to show signs of NIHL in the left ear is dated 1988.

The earliest audiogram to show signs of NIHL in both ears is dated 1993.

Based on the 1994 audiogram, a hearing aid is needed for the left ear.

Based on the 2002 audiogram, hearing aids would be needed for both ears.

In a decision dated November 2, 2015, Compensation Services advised the worker that based on all the information obtained, it was determined that his claim for compensation was not acceptable. The adjudicator noted that the WCB was unable to establish an occupational cause for the asymmetry in the worker's hearing loss, and the available information did not establish a work-related exposure to noise levels at or above 85 decibels for a sufficient period of time to establish a claim for NIHL. The adjudicator also commented that the worker consistently used hearing protection when required beginning in the 1980s, which would have reduced the noise levels below noxious levels.

On February 16, 2016, the worker's advocate submitted that the worker's hearing loss should be considered a compensable workplace injury as it was documented as early as 1994, and in 2002 he had sustained hearing loss to the point that he would qualify for hearing aids in both ears. As the submission included information that had not been seen by the adjudicator, the file was returned to Compensation Services by Review Office for consideration.

On March 15, 2016, the worker was advised by Compensation Services that the additional information did not establish work-related exposure to noise levels at or above 85 decibels for a sufficient period of time to establish a claim for NIHL. On May 12, 2016, the worker's advocate appealed the decision to Review Office.

In a submission to Review Office dated June 22, 2016, the employer's representative submitted that they agreed with the WCB's decision as the worker was not exposed to noxious noise at work to the threshold required under WCB policy and he had other non-compensable issues affecting his hearing.

On July 28, 2016, Review Office determined that the claim was not acceptable as it was unable to establish that the worker sustained an injury (i.e. NIHL) as a result of his exposure to noise at work.

Review Office noted that the worker's hearing loss involving his left ear became evident in 1988. The evidence did not support that the worker's hearing loss was the result of exposure to noxious noise in his work environment. Review Office could not account for the worker's asymmetrical hearing loss. Review Office noted that the worker wore hearing protection that would have reduced his exposure to noise in the workplace.

Review Office noted that the worker presented with NIHL in both ears based on the 1993 audiogram results. As the worker stated he consistently wore hearing protection, Review Office was of the opinion that the noise levels would have been reduced below 85 decibels on average. As such, the file evidence did not meet the criteria of the WCB policy. On September 2, 2016, the worker's advocate 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") 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.

Worker's Position

The worker was assisted by a worker advocate, who made a presentation on his behalf. The worker responded to questions from the panel.

The worker's position was that his hearing loss was work-related, and his claim should be accepted as a compensable workplace injury.

The advocate noted that the worker worked in a high noise level environment for 38.5 years. She submitted that descriptions of the job duties which were supplied by the employer indicated that the worker was out on the plant floor the majority of the day. She suggested that the exposure hours per day which the employer referred to in their Hearing Loss Report were not reflective of the actual operation, and the worker's exposure to loud noise would have been considerably more than that.

The advocate had provided sheets from noise level tests, which were on file. The advocate said that the sheets were from tests that were conducted at the plant and had been submitted by the employer to the WCB in a different matter.

The advocate submitted that 85 decibels is an established level where hearing protection is required to attempt to prevent hearing loss, but damage is nevertheless done by lower exposure levels and the worker was exposed to excessive noise for more than 38 years. In response to a question from the panel, the advocate said that she disagreed with the WCB Policy, and believed that hearing loss damage happens at a much lower level. The advocate acknowledged, however that this was a personal opinion not supported by medical or scientific literature.

It was submitted that the employer's hearing protection program was not implemented until 1985, by which time the worker had already been exposed to the workplace noise for 19 years. The worker wore the hearing protection which the employer supplied, but such protection only works as well as it is fitted to each individual. The advocate submitted that hearing protection helps reduce the risk of hearing loss but does not fully prevent it, and once it was implemented, the hearing protection that was provided was only minimal. Even though the worker was diligent in wearing his hearing protection, he has a hearing deficiency.

Employer's Position

The employer was represented by an advocate. The employer's position was that the worker's hearing loss is not compensable, as he was not exposed to noxious noise at work as required under the Policy, and the appeal should be dismissed.

It was submitted that the worker's exposure to noisy areas was limited. The advocate referred to her previous submission to Review Office, and said that based on the information provided, the worker would not have been exposed, on average, to over 85 decibels for 8 hours a day on a daily basis. To the extent that he was exposed to noise, it was not continuous, and his exposure to noise from 1982 on would have been brief and on an intermittent basis only.

It was submitted that the worker's exposure to noise was further reduced by the wearing of hearing protection. While hearing protection was not mandatory prior to 1985, it was available before then, and in any event, the worker's hearing was fine until that time. The worker said that he wore hearing protection consistently once it was available. This would have had the effect of reducing exposure to noise to acceptable levels.

In addition, it was submitted that there is no occupational explanation for the asymmetrical nature of the worker's hearing loss. The first audiogram which showed a hearing loss was in 1988, and the loss was in the left ear only. This could have been due to firearm use, as the worker was a right-handed shooter and hearing loss affects the opposite ear, or it could have been due to other non-compensable health issues, but there was no workplace explanation for the difference. A hearing aid was required for the left ear only in 1994, and it wasn't until 2002 that hearing aids were required for both ears.

In response to a question from the panel, the employer's representative said that she was not aware of the employer having any sound measurements. She said that she did not know the source of the noise level test sheets which the advocate had submitted, but did not have a concern with the panel using them if they were indeed from the plant.

The representative submitted that there was no explanation for the fact that the worker's hearing deteriorated precipitously long after he had retired and was no longer exposed to noise at work. In his report, the worker indicated that he first became aware of a hearing problem "gradual since retirement 10 years ago." The advocate submitted that it is generally agreed that NIHL does not progress after noise exposure is discontinued. She noted that while it is not up to the WCB to provide another explanation for the worker's hearing loss, it was possible that outside activities including power boating or the use of power tools, a family history of hearing loss, or other health conditions may have contributed to the worker's hearing problems, which became worse long after he retired.

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 during the course of his employment, the worker sustained NIHL due to exposure to levels of noxious noise as set out in the Policy. The panel is able to make that finding.

The Policy criteria for establishing a work-related hearing loss state 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.

The worker's file was reviewed by a WCB ENT consultant, who opined that there was evidence of noise-induced hearing loss. The consultant found that the earliest audiogram showed signs of NIHL in the worker's left ear in 1988, and in both ears in 1993. The consultant further determined that the worker required hearing aids for the left ear in 1994, and for both ears in 2002.

The panel accepts the ENT consultant's findings and opinion. The panel notes that the findings show that the worker had NIHL and a need for hearing aids for both ears while he was still working in the workplace and prior to his retirement in 2005.

At the hearing, the panel questioned the worker at length with respect to his job duties, the work site, and the extent of his exposure to noxious noise levels. Evidence on file and at the hearing showed that the worker spent a considerable amount of time moving around and working on the plant floor, and performed a variety of job duties where he would have been exposed to different levels of noise.

The noise level testing provided by the worker's advocate appeared to be from 1990 and showed noise levels ranging from 72 to 99 decibels. The sheets themselves were blurred and difficult to read and interpret. The minimal amount of information which was available with respect to the actual noise levels in the workplace made it difficult to establish NIHL based on the worker's job duties as they had previously been described.

However, additional evidence was provided by the worker at the hearing with respect to his use of a shotgun at the plant for blasting slag off the walls of the boilers. The worker stated that:

We had to make the inside of the boiler safe so that the maintenance staff could go in from the bottom, do pad welding…

So lots of times…, the slag was where you couldn't reach it, so we used a shotgun to get it off the walls…

We were outside the boiler, and you've got a manhole and flipping the shotgun through the hole…

The worker said they used the shotgun, maybe weekly, for approximately 3 years, starting in 1988. They would use regular buckshot. There were four boilers, and they would aim the shotgun across the boiler at areas on the opposite wall which they could not otherwise reach.

The panel finds that evidence clearly established that the worker would regularly or semi-regularly be firing the shotgun into the boilers as part of his job duties. The worker's evidence with respect to this use of firearms in the workplace was uncontroverted. The use of the shotgun started in 1988, around the same time as the worker's hearing loss started which, in the panel's view, suggests that the worker sustained an occupational NIHL.

Previous investigations did not show that the worker used a firearm at work. Based on our review of this new job duty and all of the other information before us, the panel is satisfied that there is sufficient evidence to establish, on a balance of probabilities, that the worker was repeatedly exposed to high levels of noise for shorter periods of time that would meet the threshold requirements of the Policy.

The panel notes that the worker's hearing loss is asymmetrical, in that it developed earlier in the worker's left ear. The panel recognizes that it is generally unusual in NIHL cases for there to be a significant difference in hearing loss between the right and left ears. The panel is able to account for the asymmetry in this instance based on the worker's use of the firearm in the workplace. This use of the firearm occurred at the same time as the audiogram showed NIHL in the worker's left ear. The worker indicated that he was a right-handed firearm user, and it is the panel's understanding that firearm use can cause more hearing loss on the opposite ear. This would therefore also explain the left ear showing symptoms of NIHL first, and the earlier need for a hearing aid for that ear.

Based on the foregoing, the panel finds, on a balance of probabilities, 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. The worker's claim for hearing loss is therefore acceptable.

The worker's appeal is allowed.

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 15th day of June, 2017