Decision #117/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to a permanent partial impairment ("PPI") award with respect to her hearing loss difficulties. A file review was held on July 18, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

That the worker is not entitled to a permanent partial impairment award.

Background

The worker filed a Worker Hearing Loss Report with the WCB on September 7, 2013. The worker reported that she has had a hearing problem for many years and that her hearing loss came on gradually. The worker indicated that the noise at work was continuous (8 to 10 hours per shift) and that she never wore hearing protection. The worker said she worked as a sewing machine operator for almost 38 to 40 years.

Following review and receipt of hearing loss results dated September 21, 2013 and September 6, 2014 and consultation with a WCB ear, nose and throat ("ENT") consultant, the worker was advised on September 29, 2014 by Compensation Services that her claim for noise induced hearing loss had been accepted and that she was entitled to the costs associated with 2 hearing aids. The worker was also advised that she did not qualify for a PPI award. On February 8, 2017, the worker appealed the decision to Review Office.

On February 14, 2017, Review Office determined that there was no entitlement to a PPI award as the worker's hearing loss did not meet the criteria for PPI awards. Review Office also indicated that there was no provision to allow for an impairment rating in relation to the hearing loss affecting the worker's activities of daily living.

On March 17, 2017, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

In considering this appeal, the panel is bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB 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.

Subsection 4(9) provides that the board may award compensation for an impairment that does not result in a loss of earning capacity.

The method for calculating compensation for an impairment is set out in section 38 of the Act. Subsection 38(1) provides that "[t]he board shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.

WCB Policy 44.20.50.20.02, Noise Induced Hearing Loss (the "NIHL Policy"), applies to claims arising from long-term exposure to occupational noise that causes hearing loss.

WCB Policy 44.90.10, Permanent Impairment Rating Schedule (the "PPI Policy") provides that impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the PPI Policy.

Worker's Position

The worker was represented by her daughter who had assisted with the appeal form and other correspondence.

In her appeal form, the worker asked the Appeal Commission to:

Review, test and examine in detail my work conditions that caused my hearing loss. Not blaming it on my age.

In her Hearing Loss Report, she indicated that she:

worked as a sewing machine operator for almost 38-40 years. The room was full of sewing machines operators and no one wore protection. Volume was constant and high all day, 8-10 hours.

In a March 27, 2017 letter to the WCB Review Office she indicated, in part:

I disagree with the decision. I have an impairment that affects my functional living. I cannot hear words on the phone, endings and many sounds, and the hearing loss has permanently damaged my ears so I cannot regain my hearing even with the hearing aids…

Employer's Position

The employers of record no longer operate.

Analysis

The panel notes that the worker has an accepted claim for hearing loss and had been provided with hearing aids under the NIHL Policy. She is seeking a PPI award under the PPI Policy and is appealing the WCB decision that she is not entitled to a PPI award for her hearing loss.

For the worker's appeal to be approved the panel must find that the worker's noise induced hearing loss meets the minimum hearing loss threshold set out in the PPI Policy.

The worker is seeking a PPI award for her hearing loss. The process the WCB must follow to calculate an impairment award is set out in the schedule to the PPI Policy. The calculated rating represents the percentage of the worker’s impairment as it relates to the worker’s whole body. The impairment rating is not related to loss of earning capacity and is not intended to compensate a worker for any pain or suffering flowing from an injury.

The specific provisions related to calculation of a permanent impairment rating in respect of hearing loss are found in Chapter 4 of the Schedule which sets out a three-step process: 

1. Calculate the percentage of hearing loss in each ear; 

2. Calculate the combined percentage of hearing loss; 

3. Convert the loss of hearing to an impairment of the whole person.

In accordance with usual practice, the worker's file was reviewed by the WCB ENT consultant. Using the September 21, 2013 audiogram, the ENT consultant calculated the worker's loss to be 115 decibels in the right ear and 92 decibels in the left ear. The panel accepts the ENT consultant's calculations and opinion.

The panel notes that the table in the PPI policy provides that the 115 decibel loss in the right ear equals a 5.6% impairment rating. The 92 decibel loss in the left ear is below the minimum loss of 100 decibels, accordingly there is no impairment rating for the left ear. When these results are calculated to a whole body rating, the formula gives a 0.9% rating whole body impairment. The PPI policy provides there is no PPI award payable for whole body impairment under 1%, therefore the worker is not entitled to an impairment award.

The panel finds on a balance of probabilities that the worker does not have a ratable impairment for hearing loss and is not entitled to a PPI award.

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 3rd day of August, 2017

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