Public Decisions | The Appeal Commission

Decision #166/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to hearing aids. A file review was held on November 14, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to hearing aids.

Decision

That the worker is not entitled to hearing aids.

Background

The worker filed a claim in January 2010 for noise induced hearing loss that he attributed to long term noise exposure at his workplace while working in various capacities. On March 31, 2010, after investigation by the WCB, the worker's claim was accepted, with a 1992 accident date established.

Based on a review of the audiometric information reviewed by the WCB's ENT consultant (specialist in otolaryngology), it was determined that the worker's hearing loss was consistent with noise exposure from the workplace. It was further determined that the worker's loss of hearing in the right hear averaged 17.50 decibels and the left ear averaged 20.00 decibels.

Although the WCB accepted that the worker did have a noise induced hearing loss, they determined that the worker's loss did not entitle him to a permanent partial impairment award (PPI). This was determined based on the WCB's minimum standard required in order to be considered eligible for a PPI which required a deficit of 35 decibels or over in each ear based on an average loss recorded at the 500, 1000, 2000 and 3000 hertz frequencies.

Based on an opinion provided by the WCB's ENT consultant, the WCB advised that hearing aids were not required, given the minimum hearing loss noted above.

In early February 2012, the worker contacted the WCB requesting that his claim be reviewed again to determine his entitlement to hearing aids.

Based on further investigations conducted by the WCB, it was determined that the worker had not worked in a noxious noise environment since 2010. It was learned that the worker had been working in an office environment since that time.

By letter dated February 22, 2012, the WCB advised the worker that his request for hearing aids was denied as information obtained from the employer indicated that subsequent to the last review of his claim, he had not been exposed to further noxious noise. It was determined therefore that any deterioration in his hearing since 2010 could not be attributed to his employment.

On March 20, 2012, the worker completed a request for Review Office to reconsider the WCB's decision.

On May 31, 2012, Review Office advised the worker that he was not entitled to hearing aids. In reaching this conclusion, Review Office noted that the worker was not exposed to noxious noise from the workplace subsequent to 2010 and therefore any further deterioration in his hearing could not be accounted for by any workplace exposure.

The worker completed an application to appeal on June 8, 2017 appealing the Review Office decision denying entitlement to hearing aids. A file review was then convened on November 14, 2017 to consider the worker's appeal.

Reasons

Applicable Legislation and Policy

The worker has an accepted claim for hearing loss and is seeking hearing aids related to his hearing loss.

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.

The WCB Board of Directors passed WCB Policy 44.20.50.20.02, Hearing Loss ("the Policy") which applies to hearing loss claims arising from long-term exposure to occupational noise. The Policy states, in part, that:

1. Claims for long-term exposure to noxious noise may be considered and paid on the basis of a claimant’s exposure with employers who are or had been registered in Manitoba.

2. For a claim to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half). …

4. Claimants who have had an established hearing loss prior to commencing employment in Manitoba will only be given consideration for any increased impairment caused by exposure to Manitoba employment.

5. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker will be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board.

Worker's Position

The worker was represented by a worker advisor who provided a written submission for the panel's consideration.

The worker's representative disagreed with the WCB's position and indicated that the decision and rationale "…should be rejected because both are inconsistent with the applicable WCB Hearing Loss Policy."

He noted that the worker has compensable bilateral noise-induced hearing loss (NIHL) with an accepted accident date in 1992. He also noted that the Appeal Commission is bound by policies enacted by the WCB Board of directors. He noted that for an accident date of 1992 and a hearing loss claim decision date of March 31, 2010, the policy provides that:

He noted that an audiologist recommended hearing aids and that the audiologist meets the requirement for "specialist" in the policy.

The worker's representative submitted that under this section the worker is entitled to hearing aids. He disagreed with the Review Office decision that the "… the degree of a worker's NIHL must itself create the need for a hearing aid or aids in order for the WCB to provide coverage." He asked that the worker be granted coverage for hearing aids.

Employer's Position

In an email message dated June 30, 2017, the employer's Workers Compensation Claims Officer advised that the employer agrees with the WCB's decision. He noted that the WCB determined that since the worker was no longer exposed to noxious noise beyond 2010, any further deterioration in his hearing could not be attributed to the workplace.

The representative noted further that:

1. The WCB Medical Advisor evaluated the worker's hearing loss based on the audiological test results from 2010, which were inclusive of all occupational noise exposure experienced by the worker. It is generally accepted that any further deterioration in an individual's hearing, once removed from the occupational noise, would be the result of another unrelated cause. This is because noise induced hearing loss does not improve or worsen once the occupational noise exposure ends (the damage is permanent).

2. "…the level of hearing loss measured after the Worker had been removed from the workplace exposure did not warrant hearing aids. Therefore, the additional deterioration was not caused by work, and would not be the responsibility of the WCB."

The employer's representative submitted that the correct decision had been made by the WCB.

Analysis

This appeal concerns whether or not the WCB is responsible for the provision of hearing aids to the worker for employment related hearing loss. For the worker's appeal to be approved, the panel must find that hearing aids are necessary to provide relief for an injury as a result of a workplace accident. The panel was not able to make this finding.

In making this decision the panel makes the following findings: • the worker was employed by the accident employer from 1975 to 2012 • the worker's hearing loss claim was accepted on March 31, 2010 based on exposure to loud noise in excess of 85 decibels as part of his past job duties • as of the date of the acceptance of his claim, the worker did not require hearing aids for his hearing loss • the worker had no further exposure to workplace noise as of 2010 when he commenced working in an office. He retired in 2012. • in January 2012 the worker underwent further hearing tests, and it was subsequently determined that his hearing had deteriorated and he required hearing aids. In determining this appeal the panel has considered the meaning of Section 5 of the policy. The panel notes that Section 5 of this policy deals with the provision of hearing aids to workers with accepted hearing loss claims. The panel finds that Section 5 does not authorize hearing aids for non-occupational exposure. In the opinion of the panel for Section 5 to apply the section would have to clearly say that non-occupational hearing loss is included when determining eligibility for hearing aids. Section 5 does not include this language and the panel finds the Section does not apply.

The panel finds, on a balance of probabilities, that the worker is not entitled to hearing aids which were first recommended as a result of his later non-occupational hearing loss.

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 8th day of December, 2017

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