The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim was not acceptable. A hearing was held on May 11, 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 26, 2015. The worker reported that she first became aware of a hearing problem while at work but she did not report it to her family or employer. The worker advised that her hearing loss came on gradually and that she was exposed to occasional noise at work. The worker stated:

I spent 20 years working in a library where the buzzers rang regularly and were extremely loud. For the last seven years my built in desk (new library) was directly below the buzzer. It was so loud it hurt my ears and I had the custodian "stuff" the bell to try to make it quieter…

On May 29, 2015, the worker spoke with a WCB adjudicator to discuss her claim. The worker outlined the view that her hearing loss was caused by the school bell which was located in close proximity to her desk during her employment from 1982 to 2002. The bell rang approximately 15 times per day for three to five seconds each time. The bell was the same one used for the fire alarm, only it would ring longer in those situations.

On June 11 and 12, 2015, a WCB ear, nose and throat (ENT) consultant reviewed the audiogram reports on file dated May 2008 and January 5, 2015 and opined that the results were typical and diagnostic of bilateral presbycusis. They were not typical or diagnostic of noise induced hearing loss (NIHL).

In a decision dated June 15, 2015, Compensation Services advised the worker that her claim was not acceptable as it was determined that her hearing loss difficulties were not indicative of a NIHL but were consistent with bilateral presbycusis which was the natural aging of the ear. On November 24, 2016, the worker's daughter filed an appeal with Review Office regarding the decision dated June 15, 2015.

On January 4, 2017, Review Office confirmed that the worker's claim for NIHL was not acceptable. Review Office stated that it accepted the opinion expressed by the WCB ENT consultant dated June 11 and 12, 2015. It found that the worker suffered from hearing loss that was not occupational in nature but rather related to presbycusis. On January 15, 2017, the worker's daughter 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") 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 attended the hearing with her daughter and husband. Her daughter acted as her representative for the purpose of presenting the worker's position to the panel.

It was submitted to the panel that while it seemed absurd that a school librarian would have a NIHL claim, there were unique circumstances that would establish the claim. In particular, the worker's desk was located in very close proximity to the school bells for 20 years. This set-up was unlike other staff who were in offices or classrooms, while the bells were located in hallways. There were letters on file from co-workers confirming that the bells were exceptionally loud in both libraries that the worker had worked in.

A new library opened around 1996, and for the last 7-8 years of her employment, her desk was about 12 feet away from the bell. On questioning from the panel, the worker confirmed that the bell was 12 feet back from her desk, 8 feet up, and to the left of the worker's desk. The bell was so loud that she asked a maintenance person to stuff the bell. The representative provided detailed estimates and calculations as to the likely total volume of bell noise, concluding that over 20 years, the worker would have experienced 41,400 bells, all in close proximity, with a total noise exposure of 57 hours. She estimated daily bell ringing to be 40-75 seconds.

The representative indicated that the worker delayed in filing a WCB claim because she did not understand cumulative injury claims, and that hearing tests weren't generally done by the school division at that time, so she was not aware of any long term damage. She did, however, complain of the bell noise as evidenced by her getting the bell dampened.

The representative noted that the worker's husband first noted the hearing loss in 2008, and the children noticed in 2014, leading to a second hearing test in 2015. It was at that time that the school bells were identified as the possible cause. She has not been able to access the school to check on the bells and had asked WCB to gather the information as it would be relevant to the claim.

The representative discussed her online research which indicated that "pain" starts at 125 decibels, and another article that found that a bell in the hallway had a peak decibel of 115 at two meters away, and advised that she is using a median number of 120 decibels for her submission. She then used the WCB Policy formula of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels. By her calculation, at 115 decibels, the daily exposure safely allowed would be 28.125 seconds, and at 124 decibels it would be 3.51 seconds. Her mother would have been exposed to 10 times that amount, not just for two years but for a career of 20 years.

Employer's Position

The employer was represented by its Secretary-Treasurer.

It was submitted that there is insufficient data to indicate that the bells at the worker's school were responsible for her hearing loss. The representative started with the employer in 2000, and doesn’t recall any complaints or concerns raised by staff at the school regarding the volume of bells. She acknowledged that there was no hearing conservation program in the school division through the early 2000s, and that when it was implemented it was for annual hearing tests for employees that work in areas at risk of elevated noise. It would include individuals in areas like music, band, physical education, industrial arts, power mechanics, custodians, cleaners, transportation and maintenance staff. Librarians and most employees such as teachers, secretaries and educational assistants are not tested. On questioning by the panel, these criteria are developed by the province.

As well, the medical evidence on the file points to the worker's hearing loss being consistent with bilateral presbycusis which relates to the natural aging of the ear.

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 the worker sustained NIHL during the course of her employment with the accident employer due to exposure to levels of noxious noise as set out in the Policy. The panel is unable to make that finding.

The criteria under the Policy provide 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. This is the threshold that must be met.

Based on the evidence before us, the panel is not satisfied that this noise threshold has been met. The panel first looked at the worker's job duties, and finds, on a balance of probabilities, that the noise exposure was much lower than that asserted at the hearing. A considerable amount of information was provided by the worker's representative including the assertion that the worker's noise exposure should be set at 120 decibels, based on articles that she had read and the absence of real noise level monitoring at the workplace. The worker asserted that the safe level of exposure at 115 db was 28.1 seconds/day, and at 120 db it would be 3.5 seconds/day, while her daily exposure was 40-75 seconds. The panel notes a number of deficiencies with this noise level standard and whether the worker in fact had been exposed to sufficient toxic noise exposure by the time she had retired from her position as a school librarian in 2002:

• The article referencing a school bell in a hallway establishes a noise level of 115 db at 2 meters and not 120 db. As the decibel scale is logarithmic, the difference between 115 db and 120 db is not incremental but involves a doubling every 3 db, resulting in a difference approaching 4 times the volume for the two db levels.

• As well, the panel notes that the worker was not located 2 meters away from the bell (the article's measuring point), but much further away, with the bell 12 feet behind her, 8 feet up and to the left of her desk. This increase in distance would also require a significant discounting from 115 db to approximate the noise exposure levels actually experienced by the worker.

• On questioning, the worker's evidence that she was likely only at her desk 80% of the time when the bell rung, again reducing total exposure.

• Further discounting of the noise levels would be required because of the dampening that was added to the bell.

• Finally, the bell was located to the left of the worker's head. In the panel's view, this would have directly exposed the worker's left ear to the ringing noise and would have placed the worker's right ear in an acoustic shadow, essentially protected by the worker's head. This work environment should show up as an asymmetric hearing loss in audiological testing -- with hearing loss greater in the left ear than the right. The panel notes, however, that the audiogram test results on the file do not disclose either an asymmetric hearing loss or, for that matter, a noise-induced hearing loss, as noted by the WCB ENT consultant dated June 11 and 12, 2015.

Accordingly, based on this analysis, the panel finds that the worker was exposed to loud ringing bells, but at overall levels far below the standards established in the Policy, being 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."

Further support for this finding comes from the audiological test results. In particular, the May 2, 2008 audiogram, the most proximate to the 2002 date of retirement, does not disclose any medical evidence of a NIHL, but rather a bilateral hearing loss associated with presbycusis. The panel accepts the interpretation of the WCB ENT specialist in that regard, who confirms a similar interpretation for the January 5, 2015 audiogram. The panel notes that the first reference to a NIHL component to the worker's hearing loss comes in a December 1, 2016 audiogram and an accompanying report. It is the panel's understanding, however, that once an individual is removed from a toxic noise exposure environment, there is no longer a basis to develop further hearing loss from that environment. In this case, with the 2008 audiogram showing no NIHL (six years after the date of retirement), there is no medical evidence of any work-related NIHL.

The panel finds that the later-discovered NIHL, in December 2016, would not, on a balance of probabilities, be attributable to the worker's job duties which ended in 2002.

Based on the foregoing, the panel finds that the worker did not sustain a NIHL during the course of her employment with the employer due to exposure to levels of noxious noise as set out in the Policy. The panel therefore finds that the worker's claim is not acceptable. The worker's appeal is dismissed.

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 6th day of July, 2017