The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on April 25, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker, a labourer, filed a Worker Hearing Loss Report on June 15, 2016 reporting a gradual hearing loss which started approximately four years prior. The worker noted that she had worked for the employer for 19 years and related the gradual hearing loss to her employment. She also noted that she was subject to yearly hearing tests.

On September 26, 2016, the worker attended an appointment with an audiologist who provided the following:

Otoscopy examination was unremarkable bilaterally. Test results indicated a bilateral mild high frequency sensorineural hearing loss. Ability to discriminate conversational level speech presented in quiet conditions was excellent in both ears. Middle ear function was normal bilaterally.

In a discussion with the WCB on October 17, 2016, the worker advised that she felt she had been exposed to loud noises at her place of employment and often worked twelve hour shifts. She further advised that she always wore ear plugs while at work.

The WCB advised the worker on January 10, 2017 that her noise induced hearing loss claim was not acceptable. The WCB noted that the worker did not meet all of the requirements for acceptance of a noise induced hearing loss claim as she had not been exposed to at least 85 decibels for eight hours per day over a two year period. It was noted that the hearing protection worn by the worker while conducting her job duties, would have reduced her exposure to noise to below 85 decibels.

The worker's representative submitted a request for reconsideration of the WCB's decision on August 31, 2017 to the Review Office. The worker's representative noted that the worker had worked in areas that the employer had provided records for which indicated noise levels higher than 85 decibels. It was also noted that the worker normally worked 7.5 hours daily but did also report working twelve hour shifts when required. The worker advised her representative that while she did wear hearing protection consistently while conducting her job duties, the ear plugs provided did loosen up and did not fit well. The worker reported that the ear plugs would be routinely knocked out due to the speed and movements required by her job duties.

At the request of Review Office, the worker's claim was reviewed by a WCB medical advisor who provided the following medical opinion on October 17, 2017:

The configuration of the audiograms on file is suggestive of a combined noise induced hearing loss and presbycusis.

The opinion was provided to the worker, the worker's representative and the employer on October 17, 2017. The employer provided a response on October 19, 2017. The employer set out the areas where the worker had worked during the last four years. For the initial part of the past four years, the worker did work in an area where the noise level was over 85 decibels. However, the hearing protection worn by the worker would have reduced the noise level to approximately 74.5 decibels. For the remaining part of the four years, while the noise levels were over 85 decibels, the employer advised the worker would have worked in those areas on a rotational basis and again, the hearing protection worn by the worker would have reduced the noise levels to under 85 decibels. As well, the employer noted that as they work on customer demand, their employees are not guaranteed to work eight hour shifts nor are they guaranteed to work five days per week. In the last two years of the four year time period, the employer calculated that the worker ranged from working 25% to 90% of a regular five day work week in the first year and 42% to 91% of a regular five day work week in the second year. As well, the employer noted that if the worker was having issues with her hearing protection not fitting properly, she did not advise her employer and as well there was other types of hearing protection available for use.

Review Office upheld the WCB's decision on November 10, 2017. Review Office accepted the employer's submission regarding the time frames associated with the worker's area of work and the noise levels in those areas, as adjusted for the worker's use of hearing protection and found that the worker did not have sufficient exposure to meet the requirement of being exposed to 85 decibels for eight hours a day for a period of two years. Review Office was also unable to substantiate the worker's claim that the hearing protection provided to her did not fit properly and increased her level of risk to exposure to high noise levels. Review Office also found that the yearly hearing tests conducted on the worker demonstrated both a noise induced hearing loss and prescbycusis but were unable to establish that the noise exposure at work was a cause.

The worker's representative filed an application with the Appeal Commission on November 15, 2017. An oral hearing was held April 25, 2018.

Reasons

Applicable Legislation

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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, and as a result of which a worker is injured.

The WCB Board of directors enacted WCB Policy 44.20.50.20, Noise-induced Hearing Loss which applies to claims arising from long-term exposure to occupational noise that causes hearing loss. This policy applies to claims for hearing loss with the date of notification on or after October 1, 2013. The policy provides, in part, that:

3. 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 accompanied by her daughter and was represented by a worker advisor who provided a presentation on the worker's appeal. The worker answered questions from the worker advisor and the panel.

The worker's representative outlined the worker's position. She submitted that:

• the worker has confirmed noise-induced hearing loss. 

• the noise-induced hearing loss is the result of working for numerous years in a noisy work environment for the accident employer. 

• there are no other risk factors or conditions that are responsible for her noise-induced hearing loss other than employment. 

• it is a well-known fact that noise-induced hearing loss is a gradual process, which is the result of either long-term or repeated exposure to loud noise over a long period of time. 

• the worker has been with the accident employer since 1997, being 21 years of employment. 

• the worker has worked exclusively in areas that have been confirmed by the employer to have excessive loud noise levels above 85 decibels.

The worker's representative noted WCB policy 44.20.50.20, Noise-induced Hearing Loss, which provides that a claim for noise-induced hearing loss is accepted by the WCB when the worker was exposed to hazardous noise at work for a minimum of two years, based generally upon an average of 85 decibels for eight hours of exposure on a daily basis. The worker's representative said that the workplace has been confirmed to have a noise-induced environment from 91 up to 94.5 decibels.

The worker advisor noted that the employer confirmed that the worker's average work shifts in 2015 ranged from six hours to eight hours, and in 2016 from six hours to nine hours. She said that this confirms that in 2015 and 2016 the worker's work shifts included up to eight to nine hours of exposure.

The worker's representative said that with the length of time that the worker has been with the accident employer, on a balance of probabilities, she had repeated exposure of noise above 85 decibels from 1997 to now.

The worker's representative disputed the employer's position that the hearing protection which has been issued to workers provides sufficient noise reduction and that the worker's noise-induced hearing loss is not associated with her work environment.

The worker advised that she has used earplugs since 1997. She said that the earplugs roll up and are inserted into your ears. They have a string attached between them and when moving around, doing the work, the string gets tucked into your clothing, and because you have layers of clothing, the clothing tugs the string and pulls out the earplugs, so the earplugs are not completely in your ears anymore. She said that her plugs can loosen up on their own. She acknowledged that the earplugs did not completely fall out.

In reply to a question about why she did not wear ear muffs for protection, the worker replied:

The earmuffs they offered at the time were bigger and bulkier and heavy on the neck. So a lot of people had a sore neck and would wear them and then not wear them, they would discontinue wearing them because they were too heavy for the neck.

The worker's representative noted that on October 17, 2017, the WCB's ear, nose and throat specialist confirmed that the audiograms on file do confirm a combined noise-induced hearing loss and presbycusis.

The worker's representative submitted that;

It is our position that the noise-induced hearing loss is linked to the work environment, as well, the noise-induced work environment has contributed to the diagnosis of presbycusis.

The worker's representative submitted an article entitled Noise-induced Hearing Loss, Occupational Noise-induced Hearing Loss. She said that the article indicates that a noise-induced environment speeds up the wear and tear as in presbycusis, as the excessive noise stimulates the cells in the inner ear, chemical processes occur that can speed up the cells’ tolerance, damaging their structure and function.

In response to a question from the panel about how often the ear plugs come out, the worker advised that:

They loosen up, they don’t come completely out. They loosen up, well, I have a hairnet on, a hard hat. I have a smock, an apron on and they, they loosen up probably two, three times a week.

When asked about this later in the hearing, the worker responded:

I said two, three times a week, but I can’t really pinpoint it, how often. Like, it could be, it has -- it’s every day, it’s just sometimes it’s not as bad as others, other times, so I don’t bother putting it back in my ear.

The worker said that she knows when the ear plugs are loose because the sound gets louder. She said that if they loosen, it can be up to 30 minutes before she can adjust the ear plugs.

The worker provided information on her various duties since she commenced employment at the facility in 1997. She said that the noise level in the plant was approximately the same in 2009 to 2015.

The worker explained that the time off she has taken, as noted by the employer representative, was due to the ringing in her ears.

In closing the worker's representative submitted that:

• in this particular case, the ear protection does not provide 100 percent ear protection. 

• the work environment has noise levels of above 85 decibels. 

• the worker has worked in this type of environment for 21 years. 

• on a balance of probabilities, the worker's noise-induced hearing loss has been caused by her work environment.

The worker stated that she was only shown how to use the ear plugs when she started 21 years prior. She said that:

I just know at 21 years of not having them in properly has taken its toll on my hearing.

Employer's Position

The employer was represented by its Health Coordinator.

The employer representative said the worker's case did not meet the exposure requirements set out in the policy. She submitted that:

For [worker], this requirement is not met, as the noise exposure in all areas in which she previously worked fall under 85 decibels when hearing protection is worn, which is a mandatory practice as per [employer's] hearing conservation program. Further, [worker] has confirmed that she has always worn hearing protection while at work.

The employer representative reviewed the various areas where the worker performed her duties. She noted that while the noise exposure in some areas exceeded 85 decibels, with the type of hearing protection the worker advised that she used, the noise exposure was under 85 decibels.

The employer representative advised that in certain areas the worker rotated between duties and there were two 15 minute breaks and a 30 minute lunch break during each shift. She provided a breakdown of the time spent at each duty

The employer representative advised, for demonstrative purposes, a two-year period was chosen in order to show the shift lengths and amount of shifts the worker worked. She stated:

In averaging the shift lengths for each month for the years of 2015 and 2016, the average shift lengths ranged from six hours and 37 minutes to eight hours, two minutes in 2015, and six hours, 15 minutes to nine hours, one minute in 2016.

She explained that during the two year period the worker:

never worked a full month, meaning she never worked on each weekday of a month due to sick days, vacation, statutory holidays, and no work days in her department…

In this two-year time frame it is as if [worker] only worked for one year and four months, due to having so many days off of work, compared to someone who would have been working five days per week.

Regarding hearing protection, the employer representative provided examples of the type of hearing protection devices that were supplied by the employer, including the 3M E-A-R classic earplugs with a noise reduction rating of 29 decibels which is the type that the worker wears. She noted that on each employee’s orientation day, and once per year afterwards, employees are trained and retrained on the proper selection, fit, and use of hearing protection, as well as the reporting process regarding any issues as per the employer's hearing conservation program.

The employer representative noted that the worker requested an audiological evaluation on September 26, 2016. The report from the audiologist indicated that the worker's main concern was for constant bilateral tinnitus, and no other audiological issues were presented at the time of the appointment.

The report indicated, ability to discriminate conversational level speech in quiet conditions and middle ear function were all normal bilaterally. This evaluation only showed bilateral mild high frequency sensorineural hearing loss which has many causes, including advanced age, disease, medications, infections, immune disorders, head and ear injuries, noise exposure, and can be inherited.

The employer representative noted that the worker has never brought up concerns about her earplugs, and she has always signed off on safety talks. She also noted that no other staff have raised concerns about the ear plugs. She demonstrated the proper use of the ear plugs and advised that the employer has not received complaints about the strings getting caught.

In closing the employer representative noted that:

• all three requirements to accept a hearing loss claim were not met. 

• the worker was not exposed to noise levels at or above 85 decibels at any time in her employment, as hearing protection has always been used. 

• the worker was not exposed to hazardous noise levels at any time in her employment for eight hours on a daily basis. 

• Annual audiological testing did not show an abnormal shift, and the worker was not referred to an audiologist. 

• Bilateral mild high frequency sensorineural hearing loss has many causes.

Analysis

The worker is appealing the WCB decision that her claim for hearing loss was not accepted. For the worker's appeal of this matter to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of her employment. In the case of hearing loss, in accordance with WCB policy, the panel must find that the 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. The panel was not able to make this finding.

The panel accepts the evidence that in many of the areas where the worker was performing her duties the noise continuously exceeded 85 decibels. However, the evidence also shows that the worker has used appropriate approved hearing protection, ear plugs with a noise reduction rating of 29 decibels, throughout her 21 years of employment at the facility. The panel finds that the use of this hearing protection would reduce the worker's exposure to noxious noise to a level well below 85 decibels.

The panel accepts the worker's evidence that, on occasion the ear plugs would loosen. She initially indicated this could occur two or three times per week and later said that it could happen every day. Accepting that it is a daily occurrence and accepting her evidence that it can take up to 30 minutes for her to take time to re-install the ear plugs, the panel finds that these occurrences did not expose the worker to long periods of noxious noise above 85 decibels and are not causative of her noise induced hearing loss.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of June, 2018