Decision #104/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his tinnitus condition was not a consequence of his compensable hearing loss condition. A file review was held on June 13, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's tinnitus condition should be accepted as being a consequence of his compensable hearing loss condition.

Decision

That the worker's tinnitus condition should not be accepted as being a consequence of his compensable hearing loss condition.

Background

On April 22, 2013, the worker filed a claim with the WCB for noise induced hearing loss ("NIHL"). The worker reported that he first became aware of a hearing problem in February 2012. He stated that his hearing loss came on gradually and that he had ringing in both ears. The worker stated that he wore hearing protection all through his working career.

On May 6, 2013, a WCB adjudicator spoke with the worker to discuss his claim. The worker reported that he did not have an ear injury, ear surgery or discharge from his ears. He said the tinnitus was bad and that it started in February 2012. The worker reported that he had his hearing testing about three years ago. The worker provided the adjudicator with his employment history and job descriptions with each of his employers.

In a decision dated October 4, 2013, the worker was advised that his claim for compensation was not acceptable as the WCB was unable to 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 March 2, 2014, the worker appealed the decision dated October 4, 2013 to Review Office and new information was provided to support that his claim for NIHL was acceptable. On March 11, 2014, Review Office returned the case to primary adjudication to consider the new information and to render a new decision.

On September 12 and 24, 2014, the worker provided the WCB with further details regarding his work history starting in 1978 onwards. In particular, the worker stated that he worked as a power engineer from 2012 to 2013. He stated that after one year of employment with the company which had a noisy environment, his tinnitus was constant and he was getting panic attacks. He suffered a mental breakdown because of the ringing. The worker said he took medication to control the ringing in his ears.

On February 20, 2015, the worker was advised that the WCB was accepting his claim for NIHL and that he was entitled to a 3% permanent partial impairment award as a result. The decision further stated that the injury date for his hearing loss was changed to April 21, 2009 based on a hearing test of that date. The decision also stated that the WCB was not accepting responsibility for his tinnitus condition and the resulting panic attacks given the history he provided and that he took medication which had known side effects for tinnitus. In November 2015, the worker appealed the WCB's decision that his tinnitus condition was not compensable.

On January 13, 2016, Review Office determined that the worker's tinnitus was not a compensable condition nor was it related to NIHL which occurred as a result of his occupational noise exposure in Manitoba.

Review Office accepted the following medical opinion on file from a WCB ear, nose and throat (ENT) consultant who stated:

According to the information from the Hearing Conservative Program [employer name] dated April 21, 2009, the worker had no tinnitus.

The working is taking (medication). Tinnitus is a known side effect of this medication.

Review Office noted that the file records contained various reports as to when the worker experienced an onset of tinnitus after 2009. The worker was working with a firm while working in another province when he mentioned having tinnitus. As such, it could not account for tinnitus in relation to his prior noise exposure in Manitoba.

At the worker's request, Review Office considered a medical report from a physician dated March 29, 2016. Review Office stated that it placed more weight on the information collected in the closest proximity to when the worker filed his claim with the WCB in Manitoba.

Review Office considered the medical information collected in 2009/2010 on the worker's other WCB claims and noted that there was no reports related to tinnitus. Review Office, therefore, did not find the evidence to show that the worker had tinnitus while he was employed in Manitoba or when working for a registered firm in Manitoba. In February 2017, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act ("WCA"), 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.

Claims for hearing loss due to exposure to noise in the workplace are adjudicated pursuant to WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (NIHL Policy). The NIHL Policy states that noise induced hearing loss occurs gradually and may not involve a loss of earnings. It notes that not all hearing loss is caused by exposure to noise at work and sets a threshold for acceptance of a NIHL claim by the WCB.

The NIHL Policy also deals with tinnitus. It provides that:

4. Tinnitus is a perception of sound in the absence of an acoustic stimulus. It may be of a buzzing, ringing, rushing, whistling or hissing quality. It may be intermittent or continuous.

Claims for tinnitus are rateable if the tinnitus is associated with the noise-induced hearing loss and there is a history of 2 or more years of continuous tinnitus.

The worker is appealing the WCB Review Office decision that his claim for tinnitus is not related to his employment in Manitoba and accordingly is not acceptable.

Worker's Position

The worker provided a written submission to the Appeal Commission. He submitted:

  1. NIHL aka Boilers Notch is caused by working in noisy environments which my workplace was. My specialist, [physician's name] Inc, Otolaryngology has confirmed this with me that Tinnitus is in fact caused by NIHL.
  2. Have not been on (medication) for many years and am still suffering with Tinnitus & is worse not better.
  3. As for "not wearing hearing protection" as stated in [case manger's] letter to me dated September 12, 2014, I always wore hearing protection as it was mandatory at my job site & I was on the OHS Committee and would never go without hearing protection. I was promoted to work safety.
  4. Considering WCB has paid for my Tinnitus hearing aids & Masking Programs, I find it odd they would deny my claim.

The worker made representations on file to the WCB about the denial of his claim for tinnitus. In a November 24, 2015 request for Request Review form he indicated that "The noise induced problems started in Manitoba because of the loud work environments I worked at over 30 years of service and you also have proof of this."

Employer Positon

The employer of record did not participate in the hearing.

Analysis

The worker's claim for NIHL has been accepted by the WCB; however, the WCB has denied the worker's claim for tinnitus. For the worker's appeal to be accepted, the panel must find that the worker's tinnitus was caused by exposure to noise within Manitoba. The panel was not able to make this finding.

The worker has been diagnosed with tinnitus and is relating his tinnitus to his exposure to noise in Manitoba. However, the file information indicates that the worker did not suffer from tinnitus when he worked in Manitoba.

The panel reviewed all the available information and notes that in 2009 the worker advised that he did not have ringing in his ear. This information was noted in an Employee Audiological History form which was completed by the worker on April 21, 2009. The worker placed a check mark indicating that no "Ringing in ears." The panel therefore finds that the worker was not suffering tinnitus from his employment in Manitoba prior to April 2009.

The panel notes that file information indicates that the worker left his employment in Manitoba in late 2010.

The panel has considered the following information on file dealing with the commencement of the worker's tinnitus:

  • the first reference to tinnitus is in a memo of a discussion between the worker and a WCB adjudicator on May 6, 2013. The worker contacted the WCB to report his hearing loss and establish a claim. The memo notes that "The tinnitus is bad, it started in February 2012…"
  • the worker signed the Worker Hearing Loss Report on April 22, 2013. In that report the worker indicated that he first became aware of a hearing problem in February 2012.
  • the family physician advised the case manager noted that the tinnitus was first noticed in September 2012.
  • a letter from a otolaryngologist, dated February 13, 2014 indicates that "This 53 year-old describes onset of binaural high pitched nonpulsatile tinnitus within 12 months of working in noisy environment in approximately 2010."
  • a WCB memo dated September 12 and September 24, 2014 which indicates that the worker advised that he did not have tinnitus when he started working for the employer in Alberta. File information indicates that the worker worked for this employer in Alberta in 2012 and 2013.  
  • Review Office memo dated January 16, 2016 which indicates "The worker stated while working for an employer in Alberta he started to experience tinnitus (ringing in his ears) after being employed for about five months. He said it started slowly and then got worse."

The panel notes that the worker's family physician indicated in a letter dated March 29, 2016 that the worker's tinnitus occurred in and around 2009. This contradicts the earlier information from the physician. The panel places greater weight on the earlier information provided by the physician to the case manager that the worker first complained of tinnitus in September 2012.

Based upon the above information from the worker and his physician's, the panel finds that the worker's tinnitus did not begin when he was employed in Manitoba. The tinnitus began while he was employed in Alberta in approximately 2012 based on medical reports and the worker's own evidence.

The panel notes that the worker's claim was reviewed by the WCB ENT specialist who noted that the worker did not have tinnitus in Manitoba in 2009. Consequently, the WCB ENT specialist did not include tinnitus in the worker's Hearing Assessment form. After our review of the file evidence, the panel agrees with the WCB ENT specialist's analysis.

The panel finds, on a balance of probabilities, that the worker's claim for tinnitus is not acceptable as a result of exposure to noise in Manitoba or as a consequence of the worker's compensable NIHL. The worker's appeal is dismissed.

Panel Members

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 17th day of July, 2017

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