Decision #114/18 - Type: Workers Compensation

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 June 14, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On a Worker Hearing Loss Report received by the WCB on February 3, 2016, the worker attributed his hearing loss to working with various employers using noisy equipment including farm and wood working equipment and air/impact tools. He noted that he became aware of his gradual hearing loss approximately 25 years ago. The worker reported starting to use hearing protection in 1993. He also reported snowmobiling or motorcycling approximately ten days per year and right-handed hunting/shooting for two weeks every year.

The WCB requested and received copies of audiograms for the worker. The audiograms were provided to a WCB medical advisor who reviewed the information and provided the opinion that the audiogram from 2015 did not indicate noise induced hearing loss (NIHL) in the worker's right ear. For the worker's left ear, there was a configuration of high frequency loss that was suggestive of NIHL which, in the opinion of the WCB medical advisor could be attributed to "the worker's history of right-handed firearm use." The WCB medical advisor also noted that the 2016 audiogram showed a similar configuration with a "slight deterioration in the higher frequencies in the right ear."

On April 7, 2016, the WCB advised the worker that his claim for NIHL was not acceptable. The WCB advised the worker that in order to accept a claim for hearing loss, certain criteria had to be met. The criteria were:

• Confirmation of employment and noise exposure in a covered industry in the province of Manitoba. 

• Noise exposure of at least 85 decibels for eight hours per day over a two year period. 

• Medical information confirming noise induced hearing loss.

The WCB confirmed that the worker was employed with various employers in Manitoba and that hearing protection was not always provided or worn. The WCB also relied on the WCB's medical advisor's opinion that while there was indication on an audiogram of NIHL in the worker's left ear, NIHL is typically symmetrical. In this case, the worker's left ear hearing loss was being attributed to the history of right-handed firearm use.

The worker requested reconsideration of the WCB's decision to Review Office on May 13, 2016. The worker noted that he disagreed that the history of firearm use was the cause of his hearing loss. He noted that his hearing loss has remained constant as has his firearm use. The worker also provided that with one employer, a particular type of equipment was used consistently closer to his left ear at head height.

On August 11, 2016, Review Office advised the worker that his claim was not acceptable. Review Office relied on the WCB's medical advisor's opinion. Review Office found that the medical evidence provided did not support that the worker was exposed to noxious noise in his work environment. The worker's asymmetrical hearing loss could not be accounted for as NIHL typically affects both ears in relatively the same manner. Review Office also noted that hearing loss does not progress once exposure to noxious noise has stopped. Given that the worker reported starting to wear hearing protection in 1993, then more consistently in 1995/1996 and then working in the office and no longer exposed to noise, the deterioration of the worker's hearing in 2016 could not be accounted for. As such, on a balance of probabilities, Review Office found the evidence did not support that the worker's hearing loss is as a result of exposure to noxious noise at work.

The worker filed an application with the Appeal Commission on February 13, 2018. An oral hearing was held on June 14, 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. 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.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") notes that permanent hearing loss can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise. With respect to prolonged exposure to excessive noise, the Policy states:

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. He explained his reasons for appealing and answered questions from the panel.

Regarding exposure to noise, the worker advised that when he was 14 to 17 he worked on farms which involved using noisy equipment and metal grain bins. He said that he has been in the same industries since 1984, and for the first 25 years he worked in a noisy environment. The last 10 to 15 years he has been doing more office work.

He noted that he applied for hearing loss benefits and that his claim was denied. He said the reason provided was that one ear was worse than the other, that wasn’t indicative of working in a noisy shop environment, because it would have been similar hearing loss in both ears.

He disagreed with this rationale and stated:

But that’s not really true, because in some equipment, some hand tools, some things that I have used are definitely one-sided more than the other, whether it’s a hand router or a certain saw. I spent a lot of time on, the way you stand, it was definitely closer to my left ear, and my right ear would have been on the other side of the noise, so to speak.

The worker described the various saws and other equipment which he feels contributed to his asymmetrical hearing.

The worker disagreed with the WCB decision which attributed the loss to firearm use and said:

Also saying it was attributed to firearm use, I’m not a real avid hunter, some years I don’t even take a shot, some years, you know, a few, that hasn’t really changed over the course of my life…

The worker advised that since his company commenced hearing tests yearly, his hearing "hasn’t deteriorated much" and has been fairly constant. He also said his hunting practices haven’t changed in the last 10 or 15 years. He submitted that:

So that would tell me that it’s probably not from hunting, because I haven’t changed my hunting, and my hearing hasn’t got worse, so I feel it is from work that I’ve done from the time I was, you know, 14 to 10, 15 years ago.

Employer's Position

In this case the worker was self-employed for a portion of the time that he was subjected to noise. The worker also advised that he worked for another employer for many years in a noisy environment.

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 panel notes the hearing tests demonstrate an asymmetrical hearing loss. In this regard the panel accepts the opinion of the WCB ENT Specialist who reviewed the worker's hearing tests and concluded that:

The last audiogram from [name of hearing loss centre], dated May, 2015 shows normal hearing in the right ear with a sensorineural loss in the lower frequencies of 500 and 1000 Hz, this is not indicative of NIHL (noise induced hearing loss) . On the left side, the worker has low frequency sensorineural loss, which is not related to noise exposure, as well as a high frequency hearing loss with normal hearing in the mid frequency range. The configuration of the high frequency loss is suggestive of NIHL. This can be attributed to the worker's history of right-sided firearm use.

The panel did not find evidence to support that the worker had greater noise exposure in the workplace on his left side than on his right, and cannot account for the noted asymmetrical hearing loss on the basis of his workplace exposure.

As well, the evidence did not establish 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.

In conclusion, the panel finds that the evidence does not establish, on a balance of probabilities, 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 eight hours of exposure on a daily basis. The panel finds that the requirements of the Policy have not been met and accordingly, that the worker's claim for noise-induced hearing loss is not acceptable. Accordingly, the panel finds that the worker did not sustain a workplace accident.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 31st day of July, 2018

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