Decision #26/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a permanent partial impairment award in relation to his compensation claim. A file review was held on May 31, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to a permanent partial impairment award.
Decision
That the worker is not entitled to a permanent partial impairment award.
Background
The worker filed a claim with the WCB for noise induced hearing loss ("NIHL"). Following an investigation into the claim and review by a WCB ear, nose and throat ("ENT") consultant, the worker's claim for NIHL was accepted on November 17, 2016. The WCB decision letter to the worker stated:
The Workers Compensation Board has established a minimum level at which hearing loss is considered rateable. The standard is a deficit of 105 decibels or more in both ears, or 130 decibels more in one ear. This is arrived at by taking the sum of the hearing loss as recorded at the 500, 1000, 2000 and 3000 hertz frequencies.
…Upon review of the audiological information received, our ENT specialist noted that the sum of the loss of hearing in your right ear was determined to be 135.00 decibels, while the sum of the loss of hearing in your left ear has been determined to be 35.00 decibels.
Employment related noise exposure typically affects both ears equally. It is noted the hearing loss in your right ear is greater than the left, and there is no occupational explanation for this asymmetry. For the purposes of establishing your entitlement, the hearing loss in your left ear (35 decibels) was deemed to be representative of employment related hearing loss and was applied to both ears. As such, your condition is not considered to be rateable, and you do not qualify for a permanent partial impairment award.
On December 16, 2016, the worker appealed the WCB's decision that he was not entitled to a permanent partial impairment ["PPI"] award. The worker stated that he has hearing loss in both ears. When the foreman or other workers talk to him he can't hear the conversation. He said his hearing loss will never get better and will probably worsen. He said there were other workers who received impairment awards for their hearing loss and their hearing loss was not as bad as his.
On February 6, 2017, Review Office determined that the worker was not entitled to a PPI award as the worker's NIHL did not meet the minimum hearing loss threshold set out in Board Policy 44.90.10, Permanent Impairment Rating Schedule (the "PPI Policy").
Review Office noted that the worker's claim was essentially accepted for hearing loss due to his exposure to noxious levels of noise prior to 1999. The WCB used the 2010 hearing test results to determine his eligibility for a PPI award. As there was no occupational explanation for the asymmetry in the worker's hearing loss, an ENT consultant used the left ear readings for both ears to calculate the PPI rating. Review Office stated that it agreed with the WCB ENT consultant's calculations that the worker did not have a rateable PPI.
On February 15, 2017, the worker appealed Review Office's decision to the Appeal Commission. A file review was arranged on May 31, 2017 to consider the appeal. The worker was advised on June 5, 2017 that at the file review, the panel determined that it was premature for them to address the worker's issue of entitlement to a permanent partial impairment award and the Chief Appeal Commissioner asked that the worker's file be referred back to the WCB for further investigation.
Review Office advised the worker on August 28, 2017 that it determined he was not entitled to a permanent partial impairment award. In reaching this decision, Review Office noted that while a hearing loss report dated June 7, 2017 noted bilateral hearing loss, the worker had been wearing hearing protection since 1999 and NIHL does not continue to progress when there is no longer exposure to loud noise or the ear is protected. Review Office also determined that there was insufficient evidence to support that the significant difference (135 decibels in the right ear and 35 decibels in the left ear) in the worker's hearing loss was caused by the type of vehicles he operated or how they were operated.
The worker filed an application with the Appeal Commission on September 19, 2017. A file review was held on January 29, 2018.
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.
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.
Subsection 4(9) provides that the board may award compensation for an impairment that does not result in a loss of earning capacity.
The method for calculating compensation for an impairment is set out in section 38 of the Act. Subsection 38(1) provides that "[t]he board shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.
The board has enacted WCB Policy 44.20.50.20.02, Noise Induced Hearing Loss, which applies to claims arising from long-term exposure to occupational noise that causes hearing loss.
The WCB Board of Directors also established the PPI Policy. Pursuant to the PPI Policy, impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the PPI Policy.
Appendix A to the PPI Policy deals with "Impairment of Hearing". It provides that:
When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1000, 2000, and 3000 hertz.
The policy further provides that in order for a worker to be eligible for a PPI award, the average loss of four speech frequencies must be a minimum of 35 decibels in each ear.
The worker has an accepted claim for noise-induced hearing loss, however, the WCB has determined that he is not entitled to a PPI award. He is appealing the WCB decision that he is not entitled to a PPI award.
Worker's Position
The worker spoke with, and wrote to, the WCB and Appeal Commission on several occasions. In a note dated May 11, 2017 the worker advised that he is aware of several workers who received PPI awards and that their hearing loss is not as bad as his.
In a noted received on March 8, 2017 regarding the noisy conditions where he worked, he advised the WCB that:
The truck windows (are) all rolled down in the hot summer because there is no air con, and the exhaust pipe is on the right, causing more noise on the right side of me.
The worker acknowledged that he began using hearing protection in 1999.
In an appeal form dated February 15, 2017, the worker stated that the hearing in his left ear and right ear are almost the same. He asked that the Appeal Commission look at the 4 years of hearing tests which will show this.
Employer's Position
The worker's employers did not participate in the appeal, however the employer for whom he worked between 1983 and 1999, confirmed that the worker drove a cement mixer truck which was very noisy and did not have air conditioning. The worker's most recent employer indicated that the worker was provided with hearing protection.
Analysis
The worker has an accepted claim for hearing loss and has been provided with hearing aids by the WCB. He is seeking a PPI award in relation to his accepted hearing loss.
The issue before the panel is whether the worker is entitled to a PPI award arising from his accepted claim for noise induced hearing loss. For the worker's appeal to be accepted, the panel must find that he sustained a hearing loss in both ears at the minimum level set out in the PPI policy. The panel was not able to make this finding.
In this case, it has been determined, through audiometric testing, that the worker has a greater hearing loss in his right ear than in his left ear, referred to as asymmetrical hearing loss. The worker explained that this was due to working in a noisy environment. He said that he drove a cement mixer truck which was very noisy, he kept the right window open, and the exhaust was by the right window thereby allowing the noise to enter the right side of the cab and affect his right ear and hearing.
The panel accepts that the worker drove a truck and that it was noisy due to a loud exhaust, however, the panel does not accept that the noise inside the truck cab would be significantly louder on the right side than on the left. The panel finds that the worker's explanation does not provide a reasonable basis for the worker's significant difference in hearing between his left ear and his right ear.
The panel notes that to determine the worker's entitlement to a PPI award, a WCB ENT consultant assessed the worker's entitlement to a PPI award, using the results from the worker's left ear hearing test conducted in 2010, which was the closest test to when he ceased working in a noisy environment in 1999. This resulted in a determination that the worker's hearing loss was not rateable (too low for a PPI award), and therefore, he was not entitled to a PPI award.
The panel accepts the ENT consultant's calculations and conclusions. The panel has reviewed the calculations and finds that the worker's loss of hearing due to his compensable injury was calculated correctly and in accordance with the criteria set out in the PPI Policy. The worker is not entitled to a PPI award for his hearing loss.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of February, 2018