Decision #17/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on December 6, 2017 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a claim for noise induced hearing loss ("NIHL") in 1989, with a date of injury of January 2, 1989. On May 15, 1990, the WCB advised the worker that his claim was acceptable, but there was no entitlement to a disability award or hearing aid.
On August 6, 2013, the worker filed a Hearing Loss Report with the WCB. By letter dated October 10, 2013, Compensation Services advised the worker that, based on their review of the file and noise level information provided by the employer, his claim for compensation was disallowed. Compensation Services found that audiometric testing results indicated that the worker had hearing loss in his left ear since at least 1976, at which time the hearing in his right ear was normal. The asymmetric hearing loss, with his left ear being worse than his right, could be explained by his right-handed firearm use.
Compensation Services determined that the hearing in the worker's right ear was in the normal ranges up until 1995, when it started to deteriorate. The worker's most recent audiogram showed a loss of hearing indicative of damage due to noise exposure, but Compensation Services was unable to find that it was due to the worker's employment, given his consistent use of hearing protection at work.
The worker filed a further Hearing Loss Report with the WCB on May 10, 2016. On May 18, 2016, the worker was advised that based on the information provided, the October 2013 decision would stand. On February 7, 2017, the worker filed a request for reconsideration by Review Office.
In a decision dated March 9, 2017, Review Office determined that the worker's hearing loss was not as a result of his work environment and his claim for benefits was not acceptable. Review Office noted that there were several inconsistencies on the file, mostly due to the varying reporting of the worker. Review Office noted, in particular, that hearing loss forms from 1989 indicated that the worker was an avid shooter, and that as of the mid-1980s, he had gone shooting every year for 21 years, using a box of rifle ammunition and several boxes of shotgun shells seasonally. Review Office further noted that the worker had confirmed in 2013 that he shot right-handed and would place his gun on his right shoulder. While the worker was currently stating that he was a left-handed shot and had only fired a .22 caliber gun five to six times a season, Review Office accepted the earlier reporting from the worker which contradicted that information. Review Office found that being a right-handed shot and placing the gun on his right shoulder was consistent with the worker's greater hearing loss in his left ear, as it would have exposed that ear to a greater amount of noise.
Review Office found that file information confirmed the worker had profound hearing loss in his left ear since 1976. Review Office accepted that the worker's hearing did not deteriorate following "explosions" in 1984 and January 1992 as described by the worker, based on a WCB ear, nose and throat ("ENT") consultant's conclusion that a comparison of December 1988 and July 1992 audiograms showed no change in the hearing in the worker's left ear and the hearing in his right ear was within the normal range in 1988 and 1992.
Review Office noted that the worker's hearing on the right side was considered normal as of 1995, and that the sudden deterioration in his right ear hearing at that time could not be explained, as the worker wore hearing protection while at work. Noise level readings from different work areas and different times provided by the employer indicated that with hearing protection, the minimum amount of noxious noise required to cause NIHL was not met.
The worker appealed Review Office's decision to the Appeal Commission on June 14, 2017, and an oral hearing was arranged.
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.
As the worker's claim was filed in 1989, the claim is governed by the Act as it existed at that time.
In 1989, subsection 4(1) of the Act provided that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
WCB Policy 184.108.40.206 (the "Policy") as it existed both in 1989 when the claim was filed, and in 1990 when the initial decision was made, set out the following criteria for a claim to be considered compensable for NIHL:
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).
These same general criteria have been consistently incorporated in WCB policy since that time.
The worker was self-represented and was accompanied by a relative at the hearing. The worker provided a submission in advance of the hearing and made a presentation to the panel.
The worker's position was that his hearing loss is due to his exposure to hazardous noise levels throughout his employment with the employer, as a result of which he requires hearing aids for both ears.
The worker briefly outlined the various positions he worked in during the course of his employment, the 1992 explosion where he said he lost half of the hearing in his left ear, and his ongoing exposure to high levels of occupational noise up until his retirement in March 2014.
The worker stated that the WCB had previously sent him a letter saying he could have a hearing aid anytime he wanted. When he eventually asked for hearing aids, however, he was told that the letter was no longer any good.
The worker disputed the WCB's reliance on activities outside of work as causative of his hearing loss. He stated that contrary to what the WCB had said, he had never driven a tractor or a snowmobile. He acknowledged he had done some hunting, but noted that all he had ever used was a .22 and an air rifle, neither of which made much noise. In his view, his hearing loss was the result of his having worked in a very noisy work environment where he was constantly exposed to very high levels of noise.
The employer did not participate in the appeal.
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. 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. The panel is not satisfied, based on the evidence, that this noise threshold has been met.
The evidence shows that the worker's hearing loss is asymmetrical. It developed earlier and is worse in the worker's left ear than his right.
The panel notes that the worker already had a significant hearing loss in his left ear by January 4, 1976, the date of the earliest audiogram on file. Based on our review of the information on file and at the hearing, the panel is unable to account for the worker's left ear hearing loss prior to 1976. The panel further accepts the WCB's ENT consultant's advice, as recorded in an October 10, 2013 note on file, that the worker's hearing in his right ear was within normal ranges until 1995, at which time there was a noticeable shift in his hearing.
The panel understands that it is generally unusual in work-related NIHL cases for there to be a significant difference in hearing loss between the left and right ears. The panel was unable to identify anything from a work-related perspective which would account for such a difference in this case.
In this regard, the worker acknowledged at the hearing that he was exposed to noise in all directions. In response to a question from the panel, the worker was unable to recall anything obvious at work which would have affected his left ear only or which would have resulted in his left ear being more exposed to noise than his right. Based on our general understanding of the worker's job, as described, the panel is of the view that the noise which the worker was exposed to should have affected both ears equally and that any work-related NIHL should have been bilateral.
The worker confirmed at the hearing that he worked as a crane operator from at least the 1990s through to 2011. Noise survey testing from 2003 for three crane operator positions which the worker had worked in as a crane operator indicated that the sound level which the different operators were exposed to ranged from an average of 86.0 decibels to 90.5 decibels. Noise survey testing from July 25, 1989 for two crane operators, one of whom was the worker, revealed that the bulk of the noise they encountered fell within the 80 to 89 decibel range and exposure over 90 decibels was less than one hour, which in the case of the worker, was over a 12-hour shift.
When asked about the noise survey test results, the worker commented that a lot of times when these tests were taken, it was a down day and nothing was running. The panel notes, however, that it was reported in two of the three test reports from 2003 that this was a busy day, while the third report indicated that it was a busy shift, although the furnace was down for a couple of hours out of the 12-hour shift.
The panel notes that information on file showed, and the worker confirmed at the hearing, that he wore hearing protection in the form of sponge ear plugs from approximately 1974 or 1975 forward. The worker added at the hearing that he "used them a lot of times", but "didn't wear them 24/7." The panel is satisfied that the worker's use of hearing protection would have had the general effect of reducing the levels of noxious noise to which the worker would have been exposed as a crane operator.
The worker indicated that from 2011 up until the time of his retirement, he worked in an offline position, which was quieter. Noise survey testing for that position indicated an average sound level of less than 85 decibels.
The worker had also indicated that he was exposed to two workplace explosions, the first in 1984 and the second in January 1992, where both ears were subject to significant trauma. The panel is unable to find, based on the evidence, that those explosions had a long term effect on the worker's hearing. The panel places weight on the September 24, 2013 opinion from the WCB's ENT consultant, who reviewed hearing test results from December 1988 and July 1992 and stated:
Comparison between Dec. 1988 and July 1992 shows no change in the hearing in the left ear. Therefore, the accident of Jan. 1992 did not affect the worker's hearing in the left ear. The hearing on the right side is within the normal range in 1988 and 1992.
The panel accepts the ENT consultant's opinion, which is consistent with our review and understanding of the audiograms and information on file.
The panel also notes that information on file, including a May 20, 2016 audiogram, further indicates that the worker's hearing has become significantly worse since his retirement in March 2014. The worker acknowledged at the hearing that he had noticed that his hearing had become worse since his retirement and was getting worse all the time. The worker indicated that he did not know why his hearing would have continued to deteriorate after he stopped working, and added: "I haven't done anything since I retired, nothing."
The panel places significant weight on the opinion of the WCB's ENT consultant as recorded in a note to file dated October 10, 2013, that the worker's hearing loss was indicative of noise exposure; however, with the consistent use of hearing protection at work, his noise induced hearing loss would not be occupationally related. As previously noted, the evidence showed and the worker confirmed that he consistently wore hearing protection at work from approximately 1974 or 1975 forward. Based on the evidence, and given the use of hearing protection, the panel is unable to find that the noise threshold under the Act has been met.
In light of 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.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of February, 2018