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 is not acceptable. A hearing was held on May 24, 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 retired baker, filed a Worker Hearing Loss Report with the WCB on October 19, 2017. The worker attributed his hearing loss to his work experience in general.

In an initial discussion with the WCB on October 27, 2017, the worker confirmed that he was employed as a baker and was exposed to general loud factory noise from mixers and large fans for over ten hours a day. The worker advised the WCB that he started noticing a gradual loss of hearing starting around 2000. He denied any illnesses or conditions that could contribute to hearing loss and confirmed that there was no history of deafness or hearing impairment in his family.

On November 2, 2017, the worker had a hearing assessment conducted. The hearing assessment noted that the worker's left ear testing indicated a "sloping moderate to severe & profound" hearing loss and his right ear testing indicated a "moderately-severe to severe" hearing loss.

The WCB had a discussion with the employer on November 17, 2017. The employer advised the WCB that the worker worked mostly frying donuts and would not have been exposed to any noise.

A WCB medical advisor reviewed the worker's file on November 24, 2017, including the hearing assessment conducted on November 2, 2017. The WCB medical advisor concluded that the test results for the worker's left side were suggestive of noise-induced hearing loss but the results for the worker's right side were flat and not consistent with noise-induced hearing loss.

On December 5, 2017, the WCB advised the worker that his claim was not acceptable. The WCB advised the worker that his employer had confirmed his employment for approximately four years. However, his employer advised that the worker worked in an area where there would have been no exposure to noxious noise. It was also noted that the audiometric results of November 2, 2017 showed an asymmetrical hearing loss, with a flat hearing loss in the right ear which was not typical of noise-induced hearing loss. The WCB also could not establish that the criteria of confirmation of noise exposure from the employer, that being noise exposure in excess of 85 decibels for eight hours per day over a two year period or medical information confirming that the hearing loss was indicative of occupational noise exposure had been met.

The worker requested reconsideration, on December 11, 2017, of the WCB's decision to Review Office. The worker disagreed with the information provided to the WCB by his employer and provided further information regarding his job duties.

On January 9, 2018, Review Office upheld the earlier decision of the WCB. Review Office acknowledged the worker's concerns with respect to the information provided. However, it could not be established that the worker was exposed to noxious noise on average at 85 decibels consistently, on a daily basis for a period of two years.

The worker filed an application with the Appeal Commission on January 25, 2018. An oral hearing was held on May 24, 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.

Subsections 1(1) (the definition of "accident") and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provides that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss, where the date of notification of the claim is on or after October 1, 2013. The Policy states, in part, as follows:

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 self-represented and was accompanied at the hearing by his spouse. The worker made a presentation and responded to questions from the panel.

The worker's position was that his hearing loss was the direct result of working for 8 years in a noisy industrial bakery.

The worker commenced the hearing by stating that the information provided by the employer regarding his work duties was not correct as the employer's information was that the worker only performed the duties of making donuts and that those tasks would not have involved significant noise exposure.

The worker described the various types of industrial baking equipment that were operated within the bakery and the various baking tasks that he was assigned to perform. He indicated that while working for the employer he did not wear hearing protection and that the workplace was loud when the various types of mixing machines and preparation equipment were operating as well as when the fans were operating overhead. The worker stated that a person had to yell to speak when the equipment was operating.

The worker stated that he sometimes would work 10 or more hours a day and that he worked for the employer from 1980 until he retired from work in 1988. Prior to commencing work with that employer, he operated his own bakery for approximately 28 years where he worked alone. The worker stated that after he retired he did not engage in activity that would have exposed him to noxious noise. The worker confirmed that he noticed his hearing began to deteriorate approximately 12 years after he retired and, as a result, he first purchased hearing aids in that approximate time period. The worker stated his hearing has continued to slowly deteriorate since that time.

Employer's Position

The employer did not participate in the appeal.

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 ("NIHL"). For the worker's appeal to succeed, the panel must find that the worker sustained NIHL during the course of his employment 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 Policy criteria for establishing a work-related NIHL states that a 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. That is the threshold that must be met. Based on the evidence before us, the panel is unable to establish that this threshold has been met in this case.

The panel finds the worker to be a credible witness who was able to describe the details of the workplace with great accuracy and accepts his evidence as submitted. Specifically, the panel accepts that the worker was an experienced baker who would have performed a variety of baking tasks and that his duties were consistent with what the worker described. Further, the panel accepts that the worker operated a variety of industrial baking machines throughout the bakery which were noisy as well as being exposed to the noise created by industrial fans that were in operation above him.

The panel also accepts that the worker was employed at this workplace for eight years, based on the government records provided by the worker, and not four years as indicated by the employer.

However, the worker was unable to identify any objective data that would support that the noise levels in this workplace would meet the exposure criteria set out in the Policy. There were no records of noise testing available to the panel to determine whether the noise criteria contained in the Policy had been met. Further, the worker stated that he was not aware of any noise testing occurring at the workplace during his employment there.

The evidence shows that the worker's hearing loss is asymmetrical, in that it is worse in one ear than the other. The panel notes that it is unusual in work-related NIHL cases for there to be a significant difference in hearing loss between the right and the left ears unless there is a workplace situation that resulted in a worker being exposed to more noxious levels of occupational noise in one ear than the other. In response to questions from the panel, the worker was unable to explain why there is a difference in hearing between his right and left ears. Based on our general understanding of the worker's job, as described, the panel is of the view that, if the worker's NIHL was work related, it should have been symmetrical bilaterally.

This same issue was queried by the WCB ear, nose, throat (ENT) specialist who, in a file note dated November 17, 2017, stated:

File reviewed.

The Nov. 2, 2017 audiogram shows an asymmetric hearing loss with the right ear being much worse. The configuration on the left side is suggestive of NIHL. The configuration on the right side is flat and not consistent with NIHL. Has this asymmetric hearing loss been investigated?

Based on the information provided the panel is unable to account for the asymmetrical hearing loss being related to the workplace environment.

The panel also notes that the worker stated he first noticed the hearing loss approximately 12 years after he had retired from working with the employer. The significant length of time between working for the employer and the onset of the hearing loss symptoms is not consistent with the panel's understanding of NIHL, in that symptoms would occur much more proximate to when the worker was exposed to any noxious levels of occupational noise.

Further, it is also the panel's understanding that once a worker is removed from the noxious levels of occupational noise, the damage to the hearing would not deteriorate further. This is contrary to this worker's experience in which his hearing has continued to deteriorate after he first noticed a problem around 2000. In the panel's view, this information further supports that the worker's ongoing hearing problems are not related to a workplace injury.

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

The worker's appeal is denied.

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 11th day of July, 2018