The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his hearing loss claim was not acceptable. A hearing was held on September 27, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In January 2016, the worker filed a claim with the WCB for hearing loss in his right ear that came about while on a work trip to Vancouver on February 3, 2014. The worker noted that his ear plugged up during the flight, but he did not feel it was anything out of the ordinary. When he landed in Vancouver, his ear remained plugged, and the next morning he felt very dizzy and almost fell out of bed. His symptoms continued for the entire trip and he returned to Winnipeg on February 7, 2014.

The WCB claim file contains medical reports regarding the worker's hearing difficulties as well as MRI and audiogram results.

In a report dated November 12, 2014, an audiologist reported that:

…[worker] reported a sudden right-sided hearing loss, which occurred earlier this year. He reported that his hearing on the right ear never recovered and also has a constant tinnitus on this ear. He reported dizziness and that he has gotten used to this now. [Worker] worked in noise for 25 years and used hearing protection. He denied a family history of hearing loss or major illness. 

The audiologist reported that the worker "has a slight sloping toward moderate to severe sensorineural hearing loss for the right ear and normal to slight hearing loss for the left ear."

In a report dated July 31, 2015, the worker's ear, nose and throat ("ENT") specialist noted that the worker had indicated some history of noise exposure through working in the wood industry. He subsequently had a repeat audiogram which showed acute hearing in the left ear and a severe high tone sensorineural hearing loss in the right ear. His MRI scan was reported as normal. Also on file is a report from the ENT specialist when she initially saw the worker for assessment on October 29, 2014.

In a report to the worker's family physician dated April 11, 2016, the treating ENT specialist stated that she saw the worker on April 11, 2016 and that the worker had a permanent right sensorineural hearing loss with an associated vestibulopathy. He also had persistent tinnitus. It was stated that the worker should consider a hearing aid which would likely help both problems, and that hopefully this would be covered by the WCB as the problems began with the 2014 work-related flight.

In a report to the WCB dated April 15, 2016, the treating ENT specialist further stated, in part:

Historically it appears that the issues with his right ear started with this work-related flight in January 2014. The plugging occurred immediately after the flight as did the imbalance…

Historically he has had persistent imbalance secondary to a work-related flight in January 2014. Conceivably this was the precursor for his right tinnitus and hearing loss. He would like to obtain a hearing aid and hopefully WCB will agree to cover the costs. He is not claiming that it is related to noise exposure. Clearly there were disturbances in the ear secondary to this flight.

In a Healthcare Services Request dated May 4, 2016, the case manager asked a WCB medical advisor to address the following question: "The worker has a significant sensorineural hearing loss in the right ear and normal hearing in the left. Can flying on a commercial airline cause this type of hearing loss? Please explain." On June 21, 2016, the WCB's ENT consultant responded as follows:

File reviewed along with claim #15…

In Claim #15…, the worker indicated that his hearing loss was gradual in onset and he attributed his hearing loss to working in the wood industry…

In Claim #14…, the worker indicated that his right sensorineural hearing loss was sudden in onset, and he attributed this to flying from Winnipeg to Vancouver in Feb., 2014 on a commercial flight.

Commercial aircraft cabins are pressurized. When taking off, the effect on the ears is minimal as the pressure in the aircraft cabin decreases. The air in the middle ear is at a relatively high pressure and passes down the Eustachian tube. If there is going to be a problem with equalizing pressure in the middle ear it tends to occur when the aircraft comes down to land. At this time the air in the middle ear is at a lower pressure than the air in the cabin. If the Eustachian tube is blocked, the ears will not "pop" and pressure cannot equalize.

The most common cause of blockage of the Eustachian tube is head cold, sinus infection or nasal allergy. This stops the air flowing through the blocked Eustachian tube. This causes lower pressure inside the middle ear resulting in the ear drum to be sucked inwards and stretched. Such an ear drum cannot vibrate naturally so sounds seem muffled or blocked. In extreme cases the middle ear cavity gets filled with fluid oozing from the lining of the middle ear.

These changes lead to temporary conductive hearing loss and not sensorineural hearing loss.

According to [the treating ENT specialist's] reports, the worker did not have a head cold at the time when he developed the right hearing loss. Also, on initial contact with the adjudicator, the worker denied having any nasal allergies.

The worker has a unilateral right sensorineural hearing loss. According to the reports from the treating physicians, the worker became aware of the hearing loss in the right ear in August/September, 2014. This is a few months after the flight of Jan./Feb., 2014.

According to the worker's conversation with the adjudicator on Aug. 21, 2015, he indicated that he became aware of the hearing loss in the right ear in Aug., 2014 while lying down watching TV. He rolled over to the left and noticed that the TV has no sound.

Based on the above, I cannot conclude that the worker's right sensorineural hearing loss was caused by flying on a commercial aircraft. Sudden sensorineural hearing loss is idiopathic (unknown cause) in the majority of cases. In some cases it can be caused by viral infection, vascular accidents, tumors in relation to the hearing nerve, autoimmune diseases, metabolic diseases, toxic chemicals and drugs and neurologic disorders. (Emphasis in original)

In a decision dated June 22, 2016, Compensation Services advised the worker that the WCB was unable to establish that his right ear difficulty was the result of the flight he took for work in February 2014. The case manager noted that the worker had unilateral right sensorineural hearing loss, and that if hearing loss were to occur from a commercial airline, it would be temporary conductive hearing loss.

On August 15, 2016, a family physician referred to a report he had provided on April 21, 2016, and indicated that he wanted to clarify some additional information that had been requested, as follows:

[Worker] reported to myself on Sept 4th, 2014 c/o of a plugged ear sensation along with a right sided, unilateral hearing loss. Examination noted a partial obstruction of his ear canal along with a slight fluid level thought secondary to eustachian tube dysfunction, however his initial right ear injury had occurred several months earlier, on Feb 4th, 2014, while on a work related business flight to Vancouver he developed a right sided hearing loss. He did not present to the office until the fall with that medical issue, despite the fact that his hearing loss had not improved. He was sent to ENT specialist…who noted the sudden plugging of his right ear along with some balance issues. She also noted a right sided hearing loss from that time which had not improved, also noting no pre-existent ear problems in the past…She notes he did sustain a sudden unilateral sesorineural (sic) hearing loss associated with a vestibulopathy which seemingly had occurred while in the process of performing work related activity.

On September 6, 2016, Compensation Services advised the worker that the revised medical report from his physician was not sufficient to overturn the original decision that his claim was not acceptable. On February 13, 2017, a worker advisor, acting on the worker's behalf, appealed the decision to Review Office.

On March 7, 2017, Review Office confirmed that the claim was not acceptable as it was unable to establish that the worker sustained an injury (noise induced hearing loss) as a result of his work. Review Office noted in the decision that there were inconsistencies on when and how the worker's right ear hearing difficulties developed. Review Office placed weight on the WCB ENT consultant's opinion that the worker's right sensorineural hearing loss was not caused by flying on a commercial aircraft. On March 22, 2017, the worker advisor 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") notes that permanent hearing loss can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise. With respect to a workplace event, the Policy states:

Hearing-loss claims that are the result of trauma or a single exposure to occupational noise are adjudicated in the same manner as other workplace injuries…

With respect to prolonged exposure to excessive noise, the Policy states:

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 assisted by a worker advisor, who provided a written submission in advance of the hearing and made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.

The worker's position was that he suffered a hearing loss to his right ear as a result of a work-related flight on February 3, 2014, and his claim should be acceptable.

In his evidence at the hearing, the worker stated that over the years, and particularly in his last 15 years on the job, he had been on hundreds of flights. He said he had regularly experienced plugging in his ears on those flights, but this would always clear up within an hour or a maximum of three hours, and he did not recall having any previous difficulty with his left or right ear. What happened in February 2014, however, was different.

With respect to the flight on February 3, 2014, the worker recalled that five to seven minutes into the descent into Vancouver, his ears started to plug, which was nothing abnormal. Just before touchdown, his sinus became abnormally painful, and he blamed this on congestion from a head cold which was just nearing its end. When the plane landed, his sinus pain subsided, but his ears were still plugged. He went about his work activities during the day, but felt lightheaded all day. He went to bed early, which was not uncommon after an early flight, and when he got up the next morning, he literally fell on his face getting out of bed.

The worker said he was lightheaded and totally off balance for the rest of the week, and moved around cautiously, holding onto rails while going up and down stairs. He said it was like he had a really bad flu. He did not realize at the time that his right ear had never recovered. He flew home on Friday, and on Saturday when he got up, he felt dizzy. He made an appointment to see his family doctor, but could not get in to see him for two months. In the coming weeks, the symptoms seemed to mellow, although he continued to experience dizziness and lightheadedness. About one month later, while he was waiting for his doctor's appointment, he realized he could not hear anything in his right ear.

The worker said that when he got in to see him, his family doctor diagnosed an ear infection and gave him a prescription for drops. When his condition did not change, he went back to his doctor, who prescribed different drops which were similarly ineffective. On a third visit to the doctor, he was diagnosed with a sinus infection and given antibiotics, but the dizziness and lightheadedness continued. The worker was referred to and eventually saw a hearing specialist, who immediately tested his hearing. The worker said that the results of that test were that he had virtually no hearing on the one ear, while the other ear seemed normal. The specialist tested his hearing again, and sent him to an audiologist for a third test, the results of which were much the same as the initial ones. At that point, the specialist said that he needed a hearing aid.

The worker stated that he did obtain a hearing aid in approximately May 2017. He said the hearing aid works fine, although it does not help with the dizziness and imbalance or with the tinnitus which he experiences.

The worker advisor reviewed the medical information on file from the worker's treating physicians and audiologist. She also referred to medical literature relating to "airplane ear" and sudden hearing loss which she had provided in advance of the hearing. The worker advisor submitted that the medical articles showed the potential for sudden sensorineural hearing loss to develop from either airplane ear or injury to the cochlear portion of the ear while on an airplane, and supported the worker's claim.

In conclusion, it was submitted that based on the available information, on a balance of probabilities, the worker's right ear injury was triggered by his work-related flight on February 3, 2014. The worker therefore sustained an injury to his right ear while in the course of his employment, and the claim should be acceptable.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. The claim has been advanced on the basis of a single workplace event as opposed to prolonged exposure to excessive noise. For the worker's appeal to be successful, the panel must therefore find that the worker's right ear hearing loss resulted from an event arising out of and in the course of his employment, and more specifically that it resulted from a work-related flight on February 3, 2014. For the reasons that follow, the panel is unable to make that finding.

The worker has been diagnosed with a sensorineural hearing loss in his right ear. In her report to the worker's family doctor dated October 29, 2014, the treating ENT specialist thus stated that "the audiogram showed a moderate to severe mid to high tone sensorineural hearing loss in the right ear…" The treating ENT specialist confirmed those findings in her letter of July 31, 2015 to the WCB, where she stated that the worker "subsequently had a repeat audiogram done which showed…a severe high tone sensorineural hearing loss in the right ear." The worker was also referred to an audiologist for further testing, and in her letter of November 12, 2014, the audiologist similarly stated that the results showed that the worker "has a slight sloping toward moderate to severe sensorineural hearing loss for the right ear…"

The panel places significant weight on the opinion of the WCB's ENT consultant who was specifically asked to advise as to whether flying on a commercial airline can cause a sensorineural hearing loss. In his response, the consultant identified two different types of hearing loss, namely conductive hearing loss and sensorineural hearing loss, and described the causes of each of these conditions. The panel accepts the consultant's description of the particular features and causes of these two types of hearing loss.

The WCB's ENT consultant further explained the effect on ears due to the change in cabin pressure when a commercial aircraft is coming down to land in particular. The consultant noted, in part, that:

If there is going to be a problem with equalizing pressure in the middle ear it tends to occur when the aircraft comes down to land. At this time the air in the middle ear is at a lower pressure than the air in the cabin. If the Eustachian tube is blocked, the ears will not "pop" and pressure cannot equalize.

The consultant went on to state that changes which occur in the ear as a result "lead to temporary conductive hearing loss and not sensorineural hearing loss." (emphasis in original)

Finally, having reviewed the worker's files and the causes of both types of hearing loss, the WCB's ENT consultant stated that he could not conclude that the worker's right sensorineural hearing loss was caused by flying on a commercial aircraft.

The panel notes that the treating ENT specialist was also asked by the worker's family physician to advise as to whether air travel could be the possible cause of the worker's right ear sensorineural hearing loss. In her response on April 11, 2016, the treating ENT specialist was only able to refer to "historical" information in support of such a connection. The treating ENT specialist similarly advised the WCB on April 15, 2016 that "historically it appears that the issues with his right ear started with this work-related flight in January 2014" and "historically he has had persistent imbalance secondary to a work-related flight in January 2014. Conceivably this was the precursor for his right tinnitus and hearing loss." The panel notes that the treating ENT specialist's comments in this regard are speculative in nature, and are not medically supported. We are therefore unable to place much weight on these comments.

In his evidence at the hearing, the worker referred to his experience on numerous flights over the years where his ears became temporarily plugged due to changes in pressure during the flights. The panel notes that the kind of symptoms which the worker described are consistent with our understanding of what conductive hearing loss is caused by and looks like, and that this is not the type of hearing loss which the worker has been diagnosed with in this case.

The panel considered the medical literature provided by the worker advisor, but is unable to attach any weight to that literature as a basis for concluding that the worker's right ear sensorineural hearing loss was related to his February 3, 2014 flight. While the worker advisor referred to the potential for hearing loss to have developed from an intracochlear membrane rupture, she acknowledged that there was no medical support for saying that the worker suffered such a rupture. The worker advisor placed particular emphasis on an article which she submitted discussed a similar scenario to that of the worker in this case. The panel finds, however, that the article involves a single case study which is based on a unique and very unusual situation, and we are unable to relate it to the facts of this case.

In conclusion, given the different natures and etiologies of a conductive as opposed to a sensorineural hearing loss, and the clear diagnosis of the worker's injury as a sensorineural hearing loss, the panel is unable to find that the worker's right ear hearing loss was causally related to his flight on February 3, 2014.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right ear hearing loss did not arise out of or in the course of his employment on February 3, 2014, and more particularly, did not result from his flight on that date. The claim is therefore 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 24th day of November, 2017