The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no causal relationship between his hearing loss difficulties and his work environment. A hearing was held on August 22, 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 claim with the WCB for noise-induced hearing loss ("NIHL") dated October 5, 2016. The worker reported that his hearing loss had become progressively worse over the last couple of years. He said his hearing loss came on gradually and the noise at work was continuous. The worker advised that he wore hearing protection starting in 1988.

The worker provided the WCB with information regarding his employment history with two employers. The worker attributed his hearing loss to 37 years of employment working on a factory floor with decibel levels of 80 to 100.

On October 20, 2016, the worker spoke with a WCB adjudicator regarding his hearing loss claim. The worker indicated that he had had constant ringing in both ears for 2 to 3 years. He did not know why his hearing loss was worse on the right side. The worker advised that he never owned a snowmobile, motor bike or boat, and only went on them a couple of times. He occasionally used a drill, circular saw and table saw for home repairs. He used a shot gun (left handed shooter) once about 1 year ago, and wore hearing protection. He denied any other noise exposure outside of work.

Regarding his employment history, the worker advised that he worked with a survey crew from 1979 to 1980 where he was exposed to intermittent noise from heavy equipment for about 1 to 2 hours per day. He did not wear hearing protection at that time. He was then employed in a plant which had a very noisy environment. Starting in 2012, he worked as a supervisor and spent 3 to 4 hours in the office. He always wore hearing protection, but changed to ear muffs in 2008.

The WCB obtained hearing loss results that were reviewed by a WCB ear, nose and throat ("ENT") consultant. Also on file is a report from the worker's employer, created May 1, 2007 and last revised February 24, 2014, entitled "Occupational Noise Exposure Assessment."

On February 7, 2017, Compensation Services advised the worker that his claim for hearing loss was not accepted as there was insufficient evidence to support his hearing loss was the result of work-related noise exposure. The worker was provided with details regarding the criteria used by the WCB in order to accept hearing loss claims. The decision stated:

Audiograms from 1986 to 2016 were reviewed by our Ear, Nose & Throat (ENT) Consultant. He indicated the earliest audiogram to show evidence of noise induced hearing loss in the right ear only was in 1997. It was noted you sustained a right ear injury in 1997 while playing softball, and this would explain the asymmetry. Our ENT Consultant indicated the earliest audiogram to show evidence of noise induced hearing loss in both ears was in 2016.

It is noted there was some deterioration in your hearing in both ears between 2015 and 2016. Given you were wearing hearing protection, I am unable to confirm you were exposed to sufficient noise levels to account for this deterioration in your hearing. In addition, your asymmetric hearing loss is not reflective of noise exposure since noise induced hearing loss is usually bilateral and equal.

On February 21, 2017, the worker appealed the decision to deny his claim to Review Office. Prior to considering the worker's appeal, Review Office sought clarification from the WCB's ENT consultant regarding audiogram results and also contacted the worker to obtain additional information.

In a decision dated March 6, 2017, Review Office confirmed that the claim was not acceptable. In making its decision, Review Office referred to the worker's employment history, job duties, amount of noise exposure, and use of hearing protection with each employer. Review Office also referred to the opinions expressed by the WCB's ENT consultant dated January 19 and March 2, 2017. Based on its review of this information, Review Office was unable to find that the worker sustained an injury or NIHL as a result of his exposure to noise at work. On March 2, 2017, 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 Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsections 1(1) (the definition of "accident") and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss, where the date of notification of the claim is on or after October 1, 2013. The Policy states, in part, as follows:

3. 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 at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that his hearing loss was the direct result of working for 37 years in an extremely noisy plant, in many areas of which the noise levels exceeded 85 decibels.

The worker said that no hearing protection was offered for the first 8 years of his 37 year career. Once hearing protection was offered, he wore it fairly diligently, but found that he had to remove it quite often in order to have conversations with people on the floor and to troubleshoot equipment, especially toward the end of his career.

The worker submitted that his hearing loss progressed over the years. Annual hearing tests were done after the first 8 years, with workers being pulled off the floor for testing which took approximately 20 minutes. The worker said that as he came closer to the end of his career, he commented to them that he felt he had a hearing loss and it was getting worse. In 2016, he went for an independent hearing test, as a result of which he was told he was going to need hearing aids. The worker retired at the beginning of 2017.

In response to questions from the panel, the worker said that as an electrician, he worked throughout the entire plant. His job entailed both regular maintenance and trouble-shooting, and he would be on the floor all day, every day. For the most part, the machines would be running continuously, and the noise level would stay the same when the plant was operating. While he would have to shut the machines down when doing repairs, everything else around him would still be running.

The worker referred to a couple of areas in particular where the noise levels he was exposed to would have been especially high, as indicated on a map of the plant which was on file. The worker said that he would be moving in and out of those areas, and the amount of time he spent in those areas would depend on what the issue was.

The worker said that there were times when the plant was less noisy, including the annual shutdowns, where they would shut the plant down to do maintenance repairs. While everyone would be on vacation at that time, he would have to work through the shutdown period.

The worker was asked about the Occupational Noise Exposure Assessment which was on file. The Assessment identified average noise exposures for various workers based on monitoring which was done in March 2013 using dosimeters. Although no electricians were listed as having been monitored in that process, the worker stated that 3 of the workers who were monitored would have worked all over the plant, like he did, and the data relating to them would be the most consistent with his type of noise exposure, with average exposures of 93.2, 87.6 and 89.3 decibels. He indicated that the closest of those, in terms of the work he did, would have been a millwright on the engineering side, whose average exposure was listed at 93.2 decibels.

The worker said that in 2012, he moved on to a supervisory position where he was doing planning and scheduling as well as maintenance. In that position, he would spend an average of probably 3 to 5 hours a day on the floor and 3 to 4 hours in the office. The worker said that hearing protection was not needed in the office.

In closing, the worker said that having worked in an extremely noisy environment for 37 years had to have had an effect on his hearing, and his claim for NIHL should be accepted.

Employer's Position

The employer did not participate in the appeal.

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 NIHL. For the worker's appeal to succeed, the panel must find that the worker sustained NIHL during the course of his employment due to exposure to levels of noxious noise as set out in the Policy. The panel is unable to make that finding, for the reasons that follow.

The Policy criteria for establishing a work-related NIHL state that the worker must have been exposed to noxious noise at work for a minimum of 2 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. That is the threshold that must be met. Based on the evidence before us, the panel is not satisfied that this threshold has been met in this case.

The evidence shows that the worker was not assigned to any particular area, but would be roaming everywhere in the plant, and would be exposed to different areas or equipment and different levels of noise for varying lengths of time. While the worker referred to 2 areas in particular where he said the noise levels were especially high, he was unable to say how much time he would have spent in those areas over any particular period of time. The worker said that his references to areas which he felt were in the 100 decibel range were based on a gut feel and not on any technical knowledge.

The worker also said that when he was repairing machines, he would have to shut them down, as he could not work on live equipment. The evidence further shows that the worker would be working through annual shutdowns, when there would be no ambient production noise and less general noise due to repairs and inspections.

The panel considered the Occupational Noise Exposure Assessment, and the worker's evidence that the individual whose pattern of work most closely resembled his was monitored as having an average exposure of 93.2 decibels. The panel notes that the Assessment does not provide any information or specifics as to the duration of the measurement or the actual activities that were monitored, other than to say that this was a "normal sample." The panel further notes that the average exposure represented the individual's exposure without hearing protection.

The panel notes that the worker wore hearing protection for the last 29 years of his career, having switched to ear muffs in 2008. While the worker indicated that he would have to lift his ear muffs at times, in order to speak to someone or to listen to equipment, he also indicated that he would not have had his hearing protection off for long. The panel is satisfied that the use of hearing protection would have had the general effect of reducing the levels of noxious noise to which he was exposed.

The panel notes that the worker moved into the supervisory position in 2012, after which he spent an average of 3 or 4 hours, or almost one half of his day, in the office. The worker said that hearing protection was not required in the office, and there is no evidence that he was exposed to noxious noise while he was in the office. The panel notes that the WCB ENT consultant advised that the earliest audiogram to show signs of NIHL in the left or both ears was in April 2016, or at least three years after the worker moved into the supervisory position.

The evidence shows that the worker's hearing loss is asymmetrical, in that it developed earlier and is worse in the worker's right ear than his left. The panel notes that it is unusual in work-related NIHL cases for there to be a significant difference in hearing loss between the right and the left ears. In response to questions from the panel, the worker said that he could not explain the difference in hearing between his right and left ears. Based on our general understanding of the worker's job, as described, the panel is of the view that any work-related NIHL should have been bilateral.

With respect to the asymmetry in the worker's hearing loss, the panel accepts the opinion of the WCB ENT consultant who commented, on January 19, 2017, that:

The earliest audiogram on file to show signs of NIHL in the right ear only is dated 1997. According to the information on the audiograms, dated Oct 7, 1997, the worker was hit on the right ear while playing softball…This would explain the early onset of NIHL in the right ear.

The earliest audiogram to show signs of NIHL in both ears is dated April 14, 2016.

The panel also places weight on the March 2, 2017 opinion of the WCB ENT consultant, who stated that:

Further to my note dated Jan. 19, 2017, the audiogram of May 3, 2016 shows NIHL in the right ear and presbycusis in the left ear.

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

 The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of October, 2017