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 compensation was not acceptable. A hearing was held on May 18, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on May 10, 2016. The worker reported that he first became aware of a hearing problem six years ago. His hearing loss came on gradually and he did not report it to his employer. He noted that the noise at work was occasional and that he wore ear protection for 25 years. The worker attributed his hearing loss to general repairs and maintenance of heavy duty equipment, and loud engine noise (diesel) over 40 years. He was not exposed to a loud blast or explosion. The worker indicated that he was right-handed and that he shoots a gun twice a year at hunting season.

The claim file contains information regarding the worker's employment history and job duties from 1970 to the present along with details regarding the amount of time he was exposed to loud noises at each workplace. The claim file also contains audiogram reports from 1987 to 2015 which were reviewed by a WCB ear, nose and throat (ENT) consultant.

On August 23, 2016, the worker was advised by Compensation Services that his claim for compensation was not acceptable. The case manager advised the worker that the earliest audiogram to show signs of noise induced hearing loss (NIHL) in the left ear was dated 2001, and 2002 in both ears. The WCB ENT consultant opined that he did not require a left hearing aid until 2011, and two hearing aids until 2015.

The case manager also stated:

The noise level testing we obtained for mechanics is approximately 87 decibels. Manufacturers provide information about the capability of hearing protection to reduce noise as noise reduction rating (NRR) based on laboratory conditions. The 3M Optime 101 foam ear plugs that you used have a realistic protection rating of 30 decibels if used most of the time, and 15 decibels if used half of the time. Your noise level exposure would have been less than 85 decibels while using hearing protection.

Based on a review of all the file information, the case manager acknowledged that the worker had been exposed to high levels of noise in the workplace. However, file evidence indicated that sufficient hearing protection was provided, that reduced his exposure to noxious noise. She was not able to establish work-related exposure to noise levels at or about 85 decibels for the required period of time. The criteria for a hearing loss claim had not been met and therefore the claim was not acceptable.

On September 12, 2016, the worker appealed the above decision to Review Office. The worker stated:

I strongly believe that the hearing issues are totally related to the type of work that was being performed during 42 years of exposure to loud noise in the work environment. I have communicated with other employees that have performed the same type of tasks over the years with similar noise exposure in similar environments where their claims were accepted…My firearm noise exposure has absolutely no relevance to the hearing loss incurred. Double hearing protection - certified ear plugs & ear muffs - were used for the minimal times there was such noise from firearms usage. Over the past 42 years as heavy duty mechanic very loud noise exposure has an accumulated effect on ear damage & hearing loss. It would be very unfortunate if my claim is denied on the basis of no other evidence other than work environment conditions. Using my age would be very discriminatory in making part of WCB's decision.

On October 24, 2016, the employer's representative submitted to Review Office that although the worker was exposed to possible noxious noise for two to four hours a day, he wore both ear plugs and muffs thereby reducing exposure by about 30 decibels which was well below the threshold of 85 decibels. Based on WCB policy and file evidence, the representative stated there was no reason to reverse the decision to deny the claim.

On December 14, 2016, Review Office determined that the worker's claim was not acceptable for an accident as defined by subsection 1(1) of the Act. Review Office's decision was based on the findings that a NIHL was not detected before 2001 and the findings that the worker wore hearing protection which reduced his noise exposure to being below a noxious/harmful level.

Review Office noted that the worker's hearing loss was more prominent in his left ear and that hearing loss from a work environment typically affects both ears relatively the same. The worker was a right-handed firearm user who did not use hearing protection while hunting. On a balance of probabilities, Review Office determined that some of the worker's hearing loss would be due to this recreational activity. Review Office concluded that the criteria for claim acceptance had not been met. The worker's NIHL, first evident in 2001, was not accounted for in relation to his work environment.

On December 13, 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 Act, regulations and policies of the WCB's Board of Directors.

Under subsection 4(1) of the Act, 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.

With respect to claims for hearing loss, the injury can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise.

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. He made an oral submission.

The worker provided information on the various worksites he was employed at over his career and answered questions from the panel.

The worker told the panel that:

• he started his career in a job with banging and hammering and lots of noise.

• the work environment for 40 years has been in the noisy mechanical field, including rebuilding engines, listening to engine noise, powertrain noise, a lot of it involves diagnosing where you don’t wear hearing protection because you cannot properly diagnose the malfunction in an engine or a transmission.

• from the beginning, he had eight to ten hours a day loud noise exposure.

• his issue arises from the 1970s and 1980s when he worked for a number of companies where hearing protection wasn’t part of the culture.

• his hearing loss has occurred, in the work environment, either at his current employer or previous employers.

• at times he had to remove his hearing protection to discuss matters with co-workers.

The worker referred to one specific site where he worked with the employer that was very noisy because the worksite was in an all steel structure.

The worker acknowledged that later in his career, he worked in a call center where he provided technical advice to crews out in the field.

Regarding his asymmetrical hearing loss, the worker said that:

Being right-handed, every time you hammer something you’re kind of looking this way, so your left ear gets exposed to it more so than probably your right ear…

In response to questions, the worker confirmed that he had participated in sport shooting. He said he wore hearing protection when on the range but not when out hunting. He said that in the last three years he has not "harvested any game" and only went target shooting.

The worker confirmed that he does "a little bit of gunsmithing." He said it was a hobby not a business.

Employer's Position

The employer was represented by an employer advocate.

The employer representative submitted that the claim is not acceptable as it doesn’t meet the criteria required under WCB policy to be acceptable. She noted that file information indicates that the worker was subjected to noise for three to four hours a day when he worked for the employer. That was from December 21, 1987 until April 2002, when the employer was taken over. She also noted that the worker told the WCB that when the employer was taken over, exposure to loud noise was limited to two to three hours per day. She advised that when the worker moved to a senior fleet technician position on July 1, 2010, he worked in an office environment where noxious noise was not an issue.

The employer's representative submitted that the file information does not support the worker's evidence, at the hearing, that he was exposed for eight to ten hours a day. She also submitted that the file information indicates that the worker wore hearing protection throughout the period of his employment, including earplugs and muffs. In addition she submitted that any loss after the worker moved over to the office environment could not be due to employment activities.

She noted that;

Noise-induced hearing loss does not continue after exposure to noxious noise ceases. But when we look at the audiograms, the earliest one to show signs of noise-induced hearing loss was in 2001 and that was for the left ear only. In 2002, there was mild noise-induced hearing loss in both ears, but it wasn’t until 2011 that a hearing aid was required for the left ear, and 2015 for hearing aids for both ears.

In answer to questions, the employer representative confirmed that the employer had noise tests for one of the sites where the worker was employed. She said that the decibel levels ranged from the 70s to about 92, and that exposure was limited.

Analysis

The issue on this appeal is whether or not the worker's claim for NIHL is acceptable due to long-term exposure to noxious levels of occupational noise.

For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a noise-induced hearing loss due to exposure to high levels of noxious noise as set out in the Policy during his employment with the accident employer. The panel is not able to make that finding.

The Policy provides that in order to be satisfied that a worker's hearing loss occurred at work, 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 eight hours of exposure on a daily basis. For every increase in noise level of three decibels, the required exposure time is reduced by half.

The worker worked in many sites over his career. The panel notes that there was a lack of information as to the noise levels that the worker would have been exposed to in the course of his employment. Noise testing results were provided by the employer representative, at the hearing, for one workspace where the worker was employed. For the vast amount of the worker's career, there were no noise testing results. Fortunately, the worker underwent hearing tests for much of his career.

The panel questioned the worker at considerable length with respect to his job duties and the extent of his exposure to noxious noise levels.

As noted above, the panel was not able to find that the worker sustained a noise-induced hearing loss due to exposure to high levels of noxious noise in the workplace. The panel notes that the worker was provided with hearing protection during his employment with the accident employer and finds that the type of hearing protection provided would have reduced the noise exposure below 85 decibels.

The panel attaches weight to the opinion of the WCB ENT consultant who opined that:

The earliest audiogram to show signs of hearing in the left ear is dated 2001. The earliest audiogram to show signs of NIHL in both ears is dated 2002.

Based on the 2011 audiogram, the worker would be considered a candidate for a left hearing aid. Based on the 2015 audiogram, the worker would be considered a candidate for bilateral hearing aids.

The panel notes that the worker underwent regular hearing testing from 1987. These tests did not show a hearing loss until 2001. This contradicts the worker's position that his hearing loss was caused by his early career when he was employed as a mechanic in smaller businesses and did not wear hearing protection.

The panel also notes that commencing in 2009, the worker was employed in the employer's call center and finds that the worker was not exposed to noise after this period and that the worsening of his hearing after this time cannot be attributed to his employment.

The panel notes the hearing tests demonstrate an asymmetrical hearing loss. The panel did not find evidence to support that the worker had greater noise exposure in the workplace on his left side and cannot account for the noted asymmetrical hearing loss on the basis of his workplace exposure. The panel notes that the worker engaged in a non-work activity which is associated with asymmetrical hearing loss.

In conclusion, the panel finds that the evidence does not establish, on a balance of probabilities, that the worker was exposed to hazardous noise at work for a minimum of two years, based generally upon an average of 85 decibels for eight hours of exposure on a daily basis. The panel finds that the requirements of the Policy have not been met and accordingly, that the worker's claim for noise-induced hearing loss is not acceptable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of June, 2017