Decision #179/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on October 24, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a claim with the WCB for noise-induced hearing loss ("NIHL") dated July 31, 2017. The worker reported that his hearing loss came on gradually and the noise at work was continuous. The worker attributed his hearing loss to his work experience in general and provided the WCB with information regarding his employment history with his current and three previous employers.
In an initial discussion with the WCB on August 9, 2017, the worker confirmed his job duties and noise exposure with each of his employers and noted that he wore hearing protection throughout his work history. The WCB requested noise level information from the current and previous employers as identified by the worker. Employment information as well as audiograms and audiometric test results were obtained. As noise level readings could not be found that were specific to the equipment the worker would have worked with during his earliest employment, from 1983 to 1999, the WCB referred to noise level information relating to the use of the equipment by another employer.
On January 16, 2018, Compensation Services advised the worker that his claim was not acceptable. Compensation Services stated that they were unable to confirm that the worker was exposed to noise levels at or above 85 decibels for a sufficient period of time and were therefore unable to determine that his hearing loss was a result of noise exposure at work.
On February 11, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that the required noise levels could not be found because the one employer Compensation Services had mentioned in the decision no longer existed. He noted, however, that he had worked for that employer for years in areas where noisy equipment would be running all day, and that Compensation Services made no mention of the other noisy workplaces where he had been employed.
On March 5, 2018, Review Office advised the worker that his claim for noise-induced hearing loss was not acceptable. Review Office acknowledged that the worker was exposed to loud noises in his job duties and that he suffers from hearing loss. Review Office stated that WCB policy outlines specific requirements which must be met in order for a worker's claim for NIHL to be found acceptable. Review Office was satisfied that Compensation Services attempted to obtain information related to noise levels from the worker's previous employment, but was not able to do so. Review Office found that they were unable to confirm that the worker was exposed to sufficient noise levels to meet the requirements for an acceptable claim.
On May 9, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
WCB Policy 188.8.131.52, Noise-Induced Hearing Loss (the "Policy") states, in part, as follows:
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.
The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker's position was that his appeal should be allowed as the WCB did not obtain or consider all appropriate information relating to his long-term exposure to noxious noise levels during the course of his employment.
The worker submitted that the WCB looked at the first part of his employment history, from 1983 to 1999, but did not look at anything after those dates. The WCB could not obtain information from this first employer due to a lack of records and an inability to contact appropriate personnel, nor could they obtain appropriate information on the noise levels produced by the equipment he was working with during that period of time. As a result, they obtained noise level information from equipment which was more modern and different from what he had worked on.
The worker stated that in at least one of the areas where he worked between 1983 and 1999, they tested equipment which would run continuously 24/7 and both the equipment and the fans above it would emit high frequency sound all around them. He spent a large amount of time in that area and in other areas which were even noisier. He wore hearing protection while working, mainly in the form of ear plugs, but it was hit and miss at best, and in some areas he had to wear earmuffs on top of the ear plugs due to the high noise levels.
The worker submitted that the decision indicated the WCB did not consider his employment subsequent to 1999, where he was again required to work in noisy environments with diesel engines, generators and compressors. He wore hearing protection with his subsequent employers as well, but was still working with very noisy equipment. The worker said that between 2006 and 2017 he often had to travel to worksites and work in very noisy environments where he would have to wear earmuffs.
The worker said that his hearing was great when he started with his employer in 1983 and seems to have gradually become worse. He noted that, for the most part, he worked in noisy environments in every job he had.
The worker stated that he was advised in 2000 that he had a significant hearing impairment. Follow-up hearing tests were conducted from 2006 to 2017, and two audiologists in 2017 indicated that his hearing loss was likely noise-induced. The worker stated he had been told several times that he was a candidate for hearing aids, but had been putting off getting them.
The employer advised, through their Controller, that they supported the worker's claim, but had nothing further to add, and did not otherwise participate in the appeal.
The issue on this appeal is claim acceptability. 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 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 criteria under the Policy provide 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. This is the threshold that must be met. Based on the evidence before us, the panel is not satisfied that this noise threshold has been met.
The panel notes at the outset that we do not accept that the noise level information which the WCB obtained was comparable to the noise levels the worker was exposed to in his employment. The worker commented that these were different environments. The employer would be testing only one part of the equipment in its facility, while the noise level information obtained by the WCB related to the ongoing operation of the equipment as a whole once installed in a workplace. In addition, the noise level in the test room in the employer's manufacturing facility, which was specific to designing and testing a particular part of the equipment, would have been much higher than the noise levels in a room where the equipment as a whole was in operation. The panel accepts the worker's evidence in this regard.
Having said that, based on the information on file and as presented at the hearing, the panel is unable to find that the worker was exposed to sufficient noise levels in the workplace as required under the Policy.
Information on file indicates that no documentation has been located with respect to noise levels the worker was exposed to in the course of his employment.
The panel carefully questioned the worker with respect to his job duties over the course of his employment, including the time he spent on different tasks and in different areas of the workplace, the extent of his noise exposure in the performance of his duties and his use of hearing protection.
The worker described three areas or jobs he worked in between 1983 and 1999, the first and third of which he said were excessively noisy. The first area was the test room he worked in at the beginning of his employment. The worker said that he spent his full eight-hour shift working in that room just over a year, and there was a lot of noise from both the equipment he was working on and fans above it. He also indicated, however, that he and the other technician he worked with could talk back and forth at a talking level. He said he used foam ear plugs probably 70% of the time on that job, as they would sometimes take the plugs out then forget to put them back in.
The worker said that the balance of his time with this employer was mostly spent working in another test area which was noisy but not nearly as noisy as the others. He still wore ear plugs, though not every day, and he thought that hearing protection in that area was optional. The worker said they were able to carry on a conversation in that area, and it was "not bad at all."
The worker said that he worked in a third test room which was extremely noisy and where hearing protection was mandatory. He estimated that he spent a total of one and a half to two months working in this room over the approximately 16-year period of his employment with this employer, with his longest stint in this room being no more than one week. The panel finds that the worker's infrequent presence at this location does not provide sufficient and continuous noise exposure that would be required under the Policy.
Based on the evidence, the panel is unable to find that the worker's exposure to occupational noise from 1983 to 1999, as indicated above, satisfies the criteria under the Policy. The panel notes that to the extent that he was exposed to higher levels of noise, the worker's use of hearing protection would have had the general effect of reducing the level of noise to which the worker was exposed.
The panel also questioned the worker with respect to his jobs subsequent to 1999, but was again unable to find exposure to noxious noise which was sufficient to result in NIHL. With respect to the worker's second employment, from 2000 to 2006, the worker estimated that he would have spent 40% of his workday in the office and 60% on the shop floor. A hearing protection program was already in place when he started with this employer. The worker said no hearing protection was needed in the office, and there is no evidence that he was exposed to noxious noise while he was in the office. He wore hearing protection in the equipment areas, but it was not mandatory. The worker described his duties on the shop floor as prototyping and testing equipment, which could take minutes, hours or days depending on what was being tested.
With respect to his third employment, from 2006 to 2017, the worker said that he had to run and fix compressors for just over one year, then became a manager, spending probably 50% of his time in the office and 50% on the shop floor. In terms of the ambient noise levels, the worker said that it was neither quiet nor extremely noisy on the shop floor. With respect to his work on the floor, he estimated that he spent three quarters of his time on the general shop floor and the other quarter of his time, or the equivalent of approximately one hour per day, inside a test chamber. Hearing protection was required on the shop floor, and he acknowledged that he wore such protection "regularly." Most of the time he used the foam ear plugs, but he wore big ear muffs in the test chamber which he said was an extremely loud environment. He also had to travel to do maintenance work in an extremely noisy environment, where at least one unit in the room would always be in operation and be "screaming." He always wore earmuffs when he was doing that work, and would probably work 15 to 20 minute stints, and no more than one hour at a time, in those environments.
The worker said that he thought that his hearing got worse over time with both the second and third employer. Based on the evidence, and given the worker's use of hearing protection, however, the panel is unable to find that the noise threshold for NIHL under the Policy has been met.
The panel is also unable to find that the worker's hearing test results are consistent with NIHL. The panel notes that the first hearing test results on file, dated June 28, 2000, indicate that the worker had a potentially significant hearing impairment in both ears, left worse than right, and a medical/audiological examination was recommended. Such a further medical examination was not pursued. It is the panel's understanding that test results which indicate NIHL have a unique "reverse checkmark" type of configuration that is distinct to NIHL. However, the 2000 hearing test results do not show such a configuration for either ear.
The panel places weight on the record of audiometric testing of the worker's hearing on August 5, 2011 and audiologist's review of those results where he indicated that the worker had "moderate mid to high frequency U-shaped sensorineural hearing loss - likely congenital" in the right ear and "moderately-severe mid to high frequency U-shaped SNHL [sensorineural hearing loss] commensurate [with] congenital etiology" in the left ear. The panel is of the view that the results of the 2011 audiometric testing are consistent with the 2000 test results, and that the numbers and pattern of further audiometric test results from both before and after 2011 are similar to or consistent with the 2011 test results and review, and are not indicative of NIHL.
The panel notes that while the worker stated that the audiologist who tested his hearing in 2017 had indicated that the hearing loss curve was indicative of noise-induced loss, he acknowledged that the audiologist had probably not seen the earlier audiograms or test results and did not really explain his findings.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a NIHL during the course of his employment due to exposure to levels of noxious noise as set out in the Policy. The panel therefore finds that the worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of December, 2018