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 May 15, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB for noise-induced hearing loss (NIHL) dated May 31, 2017. The worker stated that she was not sure when she was first aware of a hearing problem, but that it was "quite a while ago." The worker said her hearing loss came on gradually and the noise at work was continuous. The worker attributed her hearing loss to her duties as a transcriptionist during her more than 44-year career with the employer.

An audiogram for the worker from March 23, 2017 was provided and reviewed. Information was obtained which indicated that the eight-hour time-weighted average noise level for a type of headset which the worker used ranged between 65 and 77 decibels. Further investigations were conducted to determine if any noise level testing had been done in the area where the worker was working. On July 7, 2017, the employer advised the WCB that no noise level testing had been conducted for the worker's position as the levels would have been below the 85 decibel level.

On July 18, 2017, Compensation Services advised the worker that her claim for hearing loss was not accepted. Compensation Services stated that the employer had confirmed her employment as noted from 1973 to the present, but was unable to provide any detail regarding noise level testing as it had never been conducted for the worker's position. Compensation Services also stated that although the worker was likely exposed to noise while working, the available information did not establish that she was exposed to noise at or above 85 decibels for a sufficient period of time to meet the WCB threshold for NIHL.

On July 24, 2017, the worker requested that Review Office reconsider Compensation Services' decision. She argued that the equipment that was used 44 years ago was terrible and was not like today's equipment. Voices were harder to discern and there was crackling in the recording. She would have to turn the volume up so she could understand what was being said. There would often be a loud bang, causing her to jump in her seat. Not infrequently, after listening to a recording for a good part of the day, she would have a pulsating feeling in her ears.

On August 15, 2017, the worker submitted further information indicating that the type of equipment she used earlier in her career was different, in that the headset went directly into the ear canal. She stated that she understood from literature on the internet that this added approximately 9 decibels to the sound. She also noted that the office where she worked was "moderately loud," and she had to turn the volume up on her equipment.

On September 8, 2017, Review Office determined that the worker's claim was not acceptable. Review Office noted that there was no confirmation of noxious noise level exposure (over 85 decibels) on file, and that no other hearing loss claims had been accepted by the WCB for individuals in the worker's position. The only evidence which was on the file indicated that the worker was exposed to between 65 and 77 decibels on average, which was well below the noise exposure level required by WCB policy.

Review Office further noted that a review of the worker's March 23, 2017 audiogram indicated a pattern of hearing loss that was consistent with presbycusis or age-related hearing loss, not NIHL, and that the worker's hearing loss pattern showed, on a balance of probabilities, that her loss was unrelated to noxious noise exposure.

On October 29, 2017, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 19, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.

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 a workplace event, the Policy states:

Hearing-loss claims that are the result of trauma or a single exposure to occupational noise are adjudicated in the same manner as other workplace injuries…

With respect to prolonged exposure to excessive noise, the Policy notes that not all hearing loss is caused by exposure to noise at work, and states:

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 at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that her hearing loss came as a result of her work, and her claim should be accepted.

The worker said she believed that her hearing loss happened very early in her career. She started working for the employer in 1973, transcribing dictations. Less than a year later, they began using new equipment which she believed damaged her hearing. They were exposed to loud bangs through the equipment. The headsets went directly into their ear canals, which made the noise worse. Office windows would be kept open in the summer, and they would have to turn up the volume and jam the earplugs into their ears in order to hear the dictation over the outside noise, including traffic and sirens.

The worker recalled one occasion where a very loud bang threw her back into her chair. She also remembered experiencing pulsating or pressure sensations in her ears on a number of occasions after she had been doing transcription most of the day. She said this was hard to describe, but was like a pulsating, full feeling in her ears. She could not remember specifically when this happened, adding that it happened quite a few times, but not every day.

The worker said that after using that equipment for about a year or so, they got new equipment which was much better. Transcription began to be easier after that; there were no more loud bangs and she did not feel the pulsating in her ears.

The worker disputed the conclusion that her hearing test showed a pattern of hearing loss that was in keeping with presbycusis or was age-related. She stated that the first hearing test on record was from the year 2000, and it indicated that a hearing test done 5 years earlier had shown hearing loss. The worker understood that hearing test records from early on had been discarded. She said she did not know when her first hearing test was done, but she was told then that she had hearing loss and she would not have been very old at the time.

The worker wondered how the WCB could conclude that she was not exposed to 85 decibels. She said she was not sure how many decibels she was exposed to early in her career, but submitted that the fact there were loud noises that jolted her out of her chair and caused her to have pulsating in her ears certainly suggested that the noise she experienced was excessive. She said she has tried to identify or obtain information about the machines they were using at that time, but because it was so long ago, she has been unable to locate any records or information about the equipment.

Employer's Position

The employer was represented by an advocate and by the employer's WCB Coordinator. The advocate provided a written submission in advance of the hearing and made an oral submission to the panel.

The employer's position was that the WCB's determination that the claim was not acceptable was the correct one based on the available information. It was submitted that the audiogram on file from 2017 did not show NIHL, but was very typical of age-related hearing loss. Further, there was no verifiable evidence of exposure to loud noise at work. The advocate stated that they could appreciate what the worker was saying, but the available information relating to headsets indicated exposure to noise levels of only 65 to 77 decibels, which did not meet the required threshold under the Policy.

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. For the worker's appeal to be successful, the panel must find that during the course of her employment, the worker sustained NIHL due to exposure to levels of noxious noise as set out in the Policy. The panel is not able to make that finding.

The Policy criteria for establishing a work-related hearing loss state that the 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.

The panel notes that the only audiogram on file at the time of the hearing was the one from March 23, 2017. Following the hearing, the panel requested and was provided with the January 21, 2000 audiogram which the worker had referred to at the hearing, as well as audiograms from several other years between 2000 and 2017.

It is the panel's understanding that occupational NIHL has a very distinctive pattern on an audiogram. The panel has reviewed the worker’s audiograms from 2000 forward, and finds that the configuration of the test results as shown on those audiograms is not consistent with NIHL. The panel is therefore unable to relate the hearing losses as indicated on those audiograms to the worker's employment.

The worker's position at the hearing was that the significant cause of her NIHL was the equipment that they began using shortly after she started working for the employer in 1973. The panel acknowledges the worker's evidence that the equipment was noisy, but notes that the banging and pulsating she referred to were not continuous, but intermittent. There is an absence of noise level testing to identify the actual level of noise to which the worker was exposed.

Further, while the worker was not sure how long they used that equipment, her evidence at the hearing indicated that it was probably a year or so, which is less than the two year minimum period of time under the Policy. The worker acknowledged in her evidence that the work conditions got better after that; the problem equipment was replaced with equipment which was much better and there was no more loud banging or pulsating sensation. Based on all of the evidence which is before us, the panel is unable to find that the worker was exposed to the levels and duration of noxious noise which are required in the Policy.

The panel further notes that the history of the worker's audiograms suggests that her hearing loss developed later, as opposed to earlier, in her career. The audiograms which are before us indicate that there was a continuing deterioration in the worker's hearing from at least 2000 forward, which is remote in time from the conditions she said were responsible for her hearing loss.

In this regard, the panel notes that the January 21, 2000 audiogram states that the worker's hearing assessment 5 years earlier showed that she had a hearing loss at that time and that the worker felt her hearing had decreased bilaterally since then. The results of the July 3, 2002 audiogram show that there is a significant loss of hearing between 2000 and 2002. The June 27, 2011 audiogram indicates that no significant change in hearing is noted since the last evaluation, in 2002. This is followed, however, by a further loss of hearing as indicated in the October 7, 2015 audiogram. The panel notes that the worker indicated at the hearing that she had not done much transcription in the past 20 years, and is unable to relate this ongoing hearing loss to her work duties.

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

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of August, 2018