The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to hearing aids. A hearing was held on April 16, 2018 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

In December 2003, the worker filed a claim with the WCB for noise induced hearing loss (NIHL). On September 24, 2004, the WCB advised the worker that his claim was accepted and that he was entitled to the costs associated with a left hearing aid.

On October 7, 2015, the worker spoke with a WCB adjudicator and advised that he was seeking coverage for a right hearing aid. The adjudicator advised the worker that once you are removed from a noisy work environment, any further deterioration would not be related to the previous exposure. As he was already retired at the time of adjudication, any further deterioration in his hearing would not be related to work, so a right aid would not be covered. The worker indicated that he attended for hearing tests annually with his employer and that he worked for many years in a machine shop and was exposed to a lot of noise. The worker felt his claim required further investigation.

In a decision dated February 22, 2016, the worker was advised that the WCB was not able to provide further coverage for hearing aids or the related services. The decision stated:

No occupational reason was provided for the asymmetrical loss. You confirmed the regular use of hearing protection in the last 5 to 10 years of your employment…Hearing test results from 1983 to 2004 were reviewed in consultation with a WCB Ear, Nose and Throat (ENT) specialist. While test results identified moderate loss in your left ear, your right ear remained within normal ranges with the exception of a mild dip at the 4000 or 6000 hertz. According to the 2004 audiogram completed several years following your last exposure to noise, a hearing aid was required for your left ear only.

Occupational noise induced hearing loss is typically symmetrical in both ears however we were unable to establish a work related cause for the asymmetry in your hearing. In the absence of an occupational reason, we are not able to relate the hearing loss in your left ear to your employment. As such, the previous decision to provide left hearing aid coverage was in error and we are unable to accept ongoing responsibility for the aid.

In addition, further deterioration in hearing will not occur as a result of prior noise exposure once an individual is removed from the noxious noise. As such, we are unable to determine that your current need for a right hearing aid is the result of noise exposure at work and coverage for a right hearing aid is denied.

On April 21, 2016, the worker appealed the above decision to Review Office. On April 21, 2016, Review Office returned the file back to Compensation Services for further investigation and review of its previous decision.

On April 25, 2016, the worker advised the WCB that he was working near the wheel lathes and the axle lathes. The machines were approximately 50-100 feet apart and he spent equal time at each machine. The worker advised that at first, he did not wear any protection, but at some point he was required to. Once he was required to wear hearing protection he would wear plugs or muffs and it would depend on the day. Once he started to wear hearing protection he wore it all the time as that was policy.

In a decision dated June 3, 2016, the worker was advised that the WCB was unable to reverse its previous decision. The adjudicator noted the worker's position that his asymmetrical hearing loss was a result of his employment in the wheel shop and the manner in which his right ear would have been positioned towards a variety of machines. Based on the additional information obtained from the employer, the adjudicator concluded that the worker's asymmetrical hearing loss was not related to the duties he described. On July 18, 2016, the worker appealed the decision to Review Office.

On September 15, 2016, Review Office determined that there was no entitlement to hearing aids. Review Office noted that the worker did not require the use of a right hearing aid in 2004. In 1996, the worker retired from the employer and was no longer exposed to noxious noise in the workplace. Review Office concluded that the further deterioration in the worker's hearing on the right side from 2010 onwards would not be related to work. The need for a right sided hearing aid was not the WCB's responsibility.

With respect to the worker's need for a left sided hearing aid in 2004, Review Office stated an occupational explanation as to the reason for the asymmetric hearing difference was not evident. The evidence showed that the worker's noise exposure at work was never directed to one ear and therefore, it was expected the noise exposure would affect both ears symmetrically. Review Office said it agreed with Compensation Services' conclusion that the worker was provided with a left sided hearing aid in error as the left sided hearing loss necessitating the need for a hearing aid was not substantiated as being work related.

The worker appealed Review Office's decision to the Appeal Commission.

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 by the WCB.

Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Hearing Loss Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise that causes hearing loss. Section 7 of the Policy states 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.

WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy") deals with the provision of recommended devices, including hearing aids. As it relates to the provision of medically prescribed devices and related accessories, the Policy provides as follows:

The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prostheses when required by reason of a compensable injury, and the treatment or device is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.

The worker is appealing the decision that he is not entitled to hearing aids for his hearing loss.

Worker's Position

The worker provided a written submission in support of his appeal and attended the hearing. The worker explained that he received a hearing aid from the WCB over 20 years ago. His left hearing aid was not functioning properly so he went to a hearing centre where he was told that he needed a new hearing aid and should also have one for his right ear. But he then was advised that the WCB should not have accepted his asymmetrical hearing in his left ear and could not accept the new hearing loss in his right ear.

Regarding his work environment he stated that:

Where I worked in the [name] it's nothing but noise. The wheel shop is nothing but noise. I worked the majority in the wheel shop, sometimes the machine shop, for over 30 years. You hear wheels banging, axles banging, bang…

In answer to a question from the panel, the worker advised that: 

you're asking, when I first worked at the [name] we never had to wear hearing protection. We all knew it was better for us, but at that time, you know, come on, man, I'm 70 years old, this is when I was 34, you know, we didn't really care too much because it wasn't really -- told you that we had to wear them.

He acknowledged that hearing protection was always available but use was not enforced. He said he wore hearing protection for the last 6 years of his employment with employer.

The worker advised that he retired early from his job with the employer and took a job as a custodian in a school division. He worked there for two and a half years. He said some of the tasks were noisy.

He said that he did not notice that his right ear was getting worse, he just noticed that he had trouble hearing, but did not know if it was the left or the right.

The worker was asked if would be fair to say that both ears were getting the same amount of exposure? He replied that it would be. However, he also stated that there were machines where it was possible that his left ear received more exposure.

Employer's Position

The employer was represented by its WCB Claims Officer who explained the employer's position. She answered questions about the employer's premises and hearing protection program.

The employer representative noted that:

• the worker was employed with [employer] from 1967 to 1996, so that's approximately 29 years, and the claim was originally accepted for noise exposure with only a left hearing aid required. Upon review of the hearing tests on the file it was determined that a hearing aid for the right ear was not required until 2010, long after the worker had retired from [employer], so I guess it had been about 14 years, and after he had no longer been exposed to noxious noise. 

• WCB determined that since noise exposure is usually symmetrical there is no occupational explanation for hearing loss in the left ear, only leaving the WCB to maintain their decision to deny hearing aid for the right ear, and also to deny ongoing responsibility for the left hearing aid.

The employer representative noted that the WCB requested additional information on the work stations in the shop where the worker claimed to have been exposed in an asymmetrical manner. The employer reviewed the various duties and found that worker would not be exposed to a greater degree on either side of his head, as the work would require regular body repositioning, including normal head reverberation.

She submitted that it is the employer's position that the worker's claim of asymmetrical noise exposure should be dismissed.

The employer representative advised that the employer began a hearing protection program in the 1970s.

Analysis

The issue before the panel is whether or not the worker is entitled to hearing aids. For the worker's appeal to be successful, the panel must find that the worker requires a hearing aid for his left and right ears as a result of occupational noise-induced hearing loss. The panel is not able to make that finding, for the reasons that follow.

As noted in the background, in September 2004, the worker's claim for a left-sided hearing loss, which occurred between 1967 and 1996, was approved by the WCB. The worker was provided with a hearing aid. His claim for a right-sided hearing loss was not approved. In 2015, the worker approached the WCB seeking replacement of his left hearing aid and coverage for a right hearing aid. In adjudicating the worker's request the WCB concluded that an error had been made. It found that that he was not entitled to a hearing aid for his left ear and not eligible for a hearing aid for his right ear.

The panel notes that after the worker retired from working with the employer, hearing tests showed that the worker's right ear hearing deteriorated at a higher rate than his left ear. It is the panel's understanding that once removed from the noisy environment, further deterioration is not related to the prior exposure.

The panel asked the worker about the difference in noise exposure between his ears. The worker responded that the whole shop was noisy. He added that there were some areas where it was possible that one ear would receive greater exposure. The panel finds, on a balance of probabilities, that this evidence does not establish that the worker had greater exposure to noise in his left ear than his right ear. Upon consideration of all the evidence, the panel is not able to find that the worker's asymmetrical hearing loss in his left ear is due to exposure to noise in the workplace.

The panel finds that the difference between the hearing loss in the worker's left ear versus his right ear is not related to his employment duties with the accident employer. As well, any deterioration in the worker's right ear after he retired is not related to his employment with the employer.

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 29th day of May, 2018