Decision #03/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to a hearing aid for his right ear. A file review was held on November 14, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to a hearing aid for his right ear.
Decision
That the worker is not entitled to a hearing aid for his right ear.
Background
On April 22, 2009, the worker filed a claim with the WCB for a hearing loss condition that he attributed to many years of employment in the aviation industry and where he was exposed to noxious noise.
Subsequent to an investigation conducted by the WCB, the worker was advised by letter dated May 19, 2009, that although employment was confirmed by one employer, the other prior employers listed were no longer in business. Therefore the WCB was unable to confirm the employment with those firms or confirm the exposure to noxious noise from the employment. The worker was asked to provide further information before the WCB would be able to make a determination regarding the acceptance of the claim.
The worker did provide records confirming his employment with the firms listed however these were considered insufficient by the WCB to confirm exposure to noise. The WCB again advised the worker that no further action could be taken on his claim until noise exposure from employment could be confirmed.
In January and again in May 2016, the worker provided the WCB with names of two witnesses who could confirm his employment and exposure to noise in the workplace.
The WCB spoke with one of the witnesses who confirmed that he had been employed with the worker. The witness was able to confirm that the worker would have been exposed to noise and that hearing protection was not worn all of the time.
By way of a letter dated June 2, 2016, the WCB wrote to the worker to advise that his claim for hearing loss was accepted. The worker was further advised that his claim was reviewed by a WCB ENT consultant (Ears, Nose, and Throat) who determined, based on an audiogram performed on February 10, 2009, that the worker would benefit from the use of a hearing aid for his left ear. It was determined that the level of hearing loss affecting the right ear was such that a hearing aid was not required. It was also noted that the audiogram used to evaluate the level of hearing loss was conducted 2 years after the worker retired from employment in 2007.
On August 26, 2016, the worker filed a request for reconsideration with the WCB Review Office appealing the decision to only provide him with one hearing aid for his left ear. It was the worker's position, based on further audiometric testing, that his hearing loss had deteriorated and that he required binaural hearing aids.
Review Office considered the worker's appeal and on September 21, 2016, advised that he was not entitled to a hearing aid for his right ear. In reaching this conclusion, Review Office acknowledged that recent audiometric testing did demonstrate a deterioration in the worker's hearing loss. However, as the worker had retired in 2007 and was no longer exposed to noise from the workplace, the deterioration could not be attributed to his employment. Any further loss in hearing subsequent to 2009 was therefore considered to be non-compensable.
On June 21, 2017, the worker submitted an application to appeal requesting the Appeal Commission consider the issue relating to entitlement to a hearing aid for the right ear. A file review was conducted on November 14, 2017.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, 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.
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. WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the “Policy”) states, in Section 7, as follows:
7. When the WCB accepts a claim for noise-induced hearing loss and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the WCB under Policy 44.120 or 44.120.01, Medical Aid.
Worker’s Position
The worker was assisted by a worker advisor who provided a detailed written submission.
It was the worker’s position that the medical evidence supports the conclusion that the worker sustained a gradual onset of left and right ear hearing loss due to work related noxious noise. Throughout his employment history, the worker was exposed to excessive airplane and engine noise which, he submits, led to a gradual deterioration of his hearing as well as constant tinnitus in both ears. Audiology assessments confirmed bilateral hearing loss and hearing aids were recommended.
Given that the WCB provided a left ear hearing aid, the WCB should also accept the worker's request for a right ear hearing aid. Even though a hearing aid for the right ear was not required until after the worker retired, it was the worker’s position that the current right ear diagnosis nonetheless stemmed from the work related noxious noise.
Employer’s Position
The employer did not participate in the appeal.
Analysis
The worker has an accepted claim for bilateral hearing loss caused by noise exposure at his work place. The issue on this appeal is whether or not the worker's claim for a right ear hearing aid is acceptable.
For the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a noise-induced hearing loss to his right ear due to exposure of high levels of noxious noise as set out in the Policy during his employment with the accident employer that was sufficient to warrant a right ear hearing aid. The panel is not able to make that finding.
The Policy provides that in order to be satisfied that a worker’s hearing loss occurred at work, the worker must have been exposed to noxious 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 is reduced by half. As noted above, this threshold was met, and the claim accepted.
In this case, however, based on the evidence before us, the panel is not satisfied that the worker's current right ear hearing loss (requiring a hearing aid) was related to his work. At the time that the left hearing aid was authorized, the worker did not have sufficient hearing loss in his right ear to warrant a hearing aid. Although the worker subsequently experienced an increase in right ear hearing loss, this loss occurred years after the exposure to noxious noise had ceased. More specifically, the panel notes:
• The worker retired and removed himself from work related noise exposure in 2007. • Audiometric testing completed in 2009 revealed that a hearing aid was required for the left ear only, but not the right ear. • Subsequent audiometric testing completed in 2016 revealed that the worker’s right ear had deteriorated and the worker now required a hearing aid in his right ear.
It is the panel’s understanding that once an individual is removed from a noxious noise environment, there is a no longer a basis to develop further hearing loss from that environment. In this case, therefore, the additional right ear hearing loss identified in the audiogram taken in 2016, 9 years after the date of retirement, would not, on a balance of probabilities, be attributable to any work-related NIHL.
Based on the foregoing, the panel finds that the worker did not sustain a NIHL during the course of employment in his right ear sufficient to require a hearing aid as set out in the Policy. The panel therefore finds that the worker’s claim for a right ear hearing aid is not acceptable. The worker’s appeal is dismissed.
Panel Members
K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, R. Lafrance
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of January, 2018