The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on November 29, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On October 24, 2016, the worker filed a claim for noise-induced hearing loss ("NIHL") after a hearing test on October 5, 2016 indicated "Slight sloping to moderately severe sensorineural hearing loss bilaterally…Slight decrease in hearing noted since prev audio at [facility] in Apr/2016." The worker attributed his hearing loss to his employment with the employer from 1989 to 2015.

In the Worker Hearing Loss Report dated October 24, 2016, the worker indicated that his hearing loss came on gradually and the noise at work was continuous. The worker stated that he had worn hearing protection at work, both ear plugs and ear muffs, since 1989.

On January 4, 2017, the employer provided the WCB with noise level testing results for different departments in their company.

On January 16, 2017, Compensation Services advised the worker that his claim was not acceptable as the information indicated that he would not have been exposed to sufficient levels of noise to meet the criteria for acceptance of a hearing loss claim. Compensation Services stated, in part, that "At 96 decibels (your highest level of exposure, with the use of foam plugs), you would need to be exposed to this level of noise consistently for more than 30 mins and under an hour per day. Your occupations with [employer] would not expose you consistently to such a decibel level."

On February 21, 2017, the worker requested reconsideration of Compensation Services' decision by Review Office.

On April 28, 2017, Review Office determined that the claim was not acceptable. Review Office acknowledged that noise level testing results provided by the employer indicated that the worker would have been in areas where the noise was considered significant enough to meet the requirements of the Policy for acceptance of the claim. Review Office noted, however, that the worker wore hearing protection which would have reduced the overall exposure level. Review Office found that the worker was not exposed to noxious noise levels on a continuous basis for an average of eight hours without protection. The worker worked in and out of areas where he was exposed to noise levels above 85 decibels, but his actual exposure with the use of hearing protection would have been under the thresholds for acceptance of the claim.

On May 13, 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.

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.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") states, in part, as follows:

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. The worker made a presentation, and responded to questions from the panel.

The worker's position was that the timelines which were used in assessing his claim were not correct. The WCB based its decision on his exposure to noise while he himself was using the compressor, and failed to recognize that there were 6 employees working each shift, each of whom would take their turn blowing out tubes using the compressor. The 6 people were all working in the same area, and were all exposed to hazardous noise from compressed air being blown into the tubes whenever others were using the compressor. The worker may have used the compressor for a limited period of time when he was doing an order, when he was finished, the next person would come and use the compressor to do their work. He indicated that in his view, the use of the compressor and blowing out the tubes was the most harmful activity. The worker suggested that another option would have been when he worked in a paint area, where the exhaust fan would be turned on for at least one and one half hours each day.

The worker submitted that even though he wore hearing protection, just the volume of air flow and amount of work he did, given the length of time he worked in the workplace, caused his hearing loss. He submitted that no matter how slight his hearing loss might be, the company which did the hearing testing filed the claim, and it should be accepted.

Employer's Position

The employer was represented by an advocate and by its Senior Leader, Health & Wellness.

The employer's position was that the appeal cannot be accepted, as the claim does not meet the criteria under the Policy.

It was submitted that entitlement under the Policy is quantifiable; it is based on long-term exposure to noise using time-weighted averages, with a reduction in exposure through the use of hearing protection. The advocate acknowledged that the workplace was noisy. She also noted that the employer had a surveillance program in place since the 1980s and every employee was monitored on a regular basis. The employer had a policy requiring everybody to wear hearing protection which the employer provided, to reduce their exposure to noise.

The advocate noted that the worker said that he wore the approved hearing protection which was provided. To the extent that the worker was exposed to hazardous noise levels, as he was suggesting, his exposure would have been moderated or accommodated through his use of hearing protection. The advocate submitted that the evidence would have to be quantifiably different in order for the worker's claim to be accepted, and there was nothing to suggest that that is the case.

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 noise-induced hearing loss. For the worker's appeal to be successful, the panel must find that the worker sustained NIHL during the course of his employment with the accident employer 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 criteria under the Policy provide that 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. This is the threshold that must be met. Based on the evidence before us, the panel is not satisfied that this noise threshold has been met.

The panel questioned the worker at the hearing with respect to his job duties over the course of his employment, including the time he spent on different tasks and in different areas of the workplace, and the extent of his exposure to noxious noise levels.

The worker's evidence was that he had been working in the same area for the last 5 years of his employment, from 2010 forward, assembling cylinders. He confirmed that there were 6 employees working in the assembly area and they would all do the same duties, which included blowing out the cylinders using a compressed air wand. The assembly area was located on the plant floor, and the workers would be approximately 10 to 15 feet apart from each other while they were working.

The worker said that there were a number of different operations involved in assembling cylinders and the volume of noise fluctuated as he was performing his job. He estimated that he was exposed to noise from the compressed air being blown into the cylinders for an average of 5 hours per day. This was based on the use of the compressed air not only by him, but also by the other 5 people who were working at the time, as he would still be in the vicinity when they were blowing out the cylinders. He acknowledged that he would not be exposed to quite as much noise when others were doing the work, as he was some distance away from them. He said that it was the forced air being shot into the tubes which made the noise. Exposure would vary, depending on the orders that had to be filled.

The worker confirmed that he wore hearing protection all the time when he was working, and acknowledged that the protection would reduce the level of noise to which he was exposed. He said that when he was blowing the cylinders out himself, he would use the ear muffs, as he found that they were better than the ear plugs, but would use the ear plugs when others were blowing out the cylinders.

The panel questioned the worker at the hearing with respect to the positions he occupied and the work he performed in the course of his employment prior to 2010, and is satisfied that the evidence does not indicate that the worker was exposed to minimum levels of noxious noise as required under the Policy in those positions.

Information on file includes testing of noise employee exposure at the employer's facilities from 2001 and updated 2010. Testing with respect to the assembly position indicates sound level exposure of less than 86 decibels over a sampling period of approximately four hours. The comments with respect to the position and testing refer to, among other things, use of a compressed air wand to blow out a cylinder tube. The worker confirmed that this was the work he would have been doing from 2010 onwards.

In the panel's view, the evidence indicates that at best, based on the worker's own estimate, the worker would have been exposed to noxious noise for an average of 5 hours per day. The testing information indicates that average exposure in that position over the course of one day would have been less than 86 decibels.

The worker's evidence was that he wore hearing protection at all times. The panel is satisfied, and the worker acknowledged, that the use of hearing protection would have had the general effect of reducing the level of noxious noise to which the worker was exposed.

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

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of January, 2018