Decision #171/18 - 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 30, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker, a school bus driver, filed a Worker Hearing Loss Report with the WCB on November 30, 2017. He attributed his hearing loss to his previous employment as a truck driver, working in shops and his most recent employment as a school bus driver. The worker provided the WCB with an Audiologic Report dated November 24, 2017.
On December 13, 2017, the employer provided the WCB with noise survey information that was done in 2015 which indicated the average noise levels for school buses were below the 85 decibel level criteria noted in the WCB policy.
The WCB gathered information from the worker's previous employers. Included in the information was a discussion with a co-worker on January 8, 2018. The co-worker confirmed that he worked with one of the worker's previous employers at the same time as the worker from 1985 to approximately 1987. The co-worker also confirmed the job duties performed during that time and that the worker would have been exposed to noxious noise. He further confirmed that he had an accepted claim for noise-induced hearing loss due to his employment.
The WCB also received on December 18, 2017, a copy of an Audiologic Report from an examination of the worker on September 15, 2009.
The WCB requested that the WCB Ear, Nose and Throat (ENT) specialist review the worker's file on January 15, 2018. The WCB advised that noise exposure could be confirmed for the period of 1985 to 1987. On January 23, 2018, the WCB ENT specialist provided the opinion that "The configuration of the 2009 audiogram is not diagnostic of NIHL [noise-induced hearing loss]."
On January 24, 2018, the WCB advised the worker that his claim was not acceptable. They advised the worker that it was confirmed he was exposed to noise in excess of 85 decibels from his employment during the period of 1985 to 1987 but they were not able to confirm exposure to noxious noise in his employment after that period. He was further advised that the audiogram of September 15, 2009 did not show NIHL and any deterioration after that time could not be attributed to his employment.
The worker requested reconsideration of the WCB's decision to Review Office on January 30, 2018. The worker did not agree with the WCB's decision as he stated there was not enough testing done on older school buses indicating the decibel levels, that the size of the bus and type of engine would make a difference in the decibel level, that driving on gravel roads was noisier than driving on pavement and that there should be a comparison of decibel levels between a highway tractor and a school bus of the same year.
Review Office determined on March 19, 2018 that the worker's claim was not acceptable. Review Office noted that the audiogram showed that the worker did not have NIHL prior to 2009 and that it is generally accepted that NIHL occurs when there is exposure to noxious noise but stops once the exposure is gone. The worker's audiogram of November 24, 2017 indicated NIHL which would confirm exposure to noxious noise between 2009 and 2017, in combination with presbycusis (hearing loss due to age). Review Office noted that the employer provided noise level tests, none of which supported levels beyond 85 decibels. It was further noted that the worker was employed for four hours a day in two shifts, two hours in length. Accordingly, the level of noxious noise exposure and the minimal daily time of eight hours per day, as set out in the WCB Policy, were not met and the worker's claim was not acceptable.
The worker filed an appeal with the Appeal Commission on April 24, 2018. 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.
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 provide 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 22.214.171.124, 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.
The worker attended the hearing with his spouse who assisted the worker in providing information for the panel and answering the panel's questions.
The worker told the panel that he believed that his bilateral hearing loss was the result of his employment as a school bus driver from approximately 2001 until 2015. Although the worker noted he had commenced his employment as a bus driver for the school division in 1996, those first five years he was only employed on a casual basis, generally replacing other absent bus drivers and he did not work a regular schedule.
The worker stated his regular hours of work as a bus driver were four hours a day which comprised two shifts of two hours each, one in the morning to transport students to school and then another in the afternoon to transport the students home. His employment was during the regular school year, approximately 10 months per year. The worker stated that he did nothing between the two assigned runs that would have affected his hearing. He did work on the family farm but he would wear hearing protection if any of the tasks involved loud noises.
The worker also stated that he would often drive the school bus on "out of town runs" which involved driving students to various cities in Manitoba. This would consist of highway driving with the school bus full of students, often for several hours at a time. The worker estimated that these out of town trips would occur approximately once every two weeks during the school year.
The worker disputed that hearing protection was available to him, contrary to what his employer had indicated in their report to WCB. He also questioned the logic of him wearing hearing protection while transporting a busload of children.
The worker indicated that he started to notice his hearing was notably deteriorating in the time period that he went for his first hearing test in 2009. However, the worker also noted that between 2000 and 2009 sometimes the children would come to the front of the bus to speak to him and he could not hear what they were saying because of the background noise and he would ask them to wait until the bus had stopped to speak with him.
The worker stated that the school buses he drove were noisy, especially when he drove with his left side window open, which he often did. The worker stated:
I would say the buses were bad. The buses were bad. Like, you'd get -- well, you would have your window open, and the wind whistling, and then the rattling. Like, the buses were shook. As I call it, classifying as shook, is they rattled, like. Everything was rattling.
They weren't soundproof like going down a paved road with your windows up.
The worker described the most significant rattling inside the bus would come from all the side windows that ran the length of the bus. In addition, the worker made specific comment that a significant amount of noise also came from the wheel chair lifts that were installed on some of the buses. The worker told the panel that he started driving these types of buses in around 2005-2006. The worker indicated that although the wheelchair lifts were folded inside the bus, they would rattle loudly when moving. The worker stated that his driving duties were predominantly carried out on gravel roads which were in varying condition depending on the time of year and weather conditions. He stated that gravel road conditions would make the noises on the bus even louder than when operating on paved surfaces.
The worker also stated that from approximately 2007 onward he operated a diesel bus, which he believed was louder than a regular fuel type of bus.
When asked by the panel as to whether he believed more noise was caused by the children or from the school bus itself the worker confirmed the bus itself created more excessive noise.
When asked if there was any change to the buses the worker was operating from 2009 to 2015 to account for the deterioration in the worker's hearing noted in the 2017 hearing test, the worker replied that the buses were getting older during that period of time which caused them to rattle more.
The employer did not participate in the hearing.
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 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.
In making this decision, the panel relies on, in part, the opinion of the WCB ENT specialist who stated in his January 23, 2018 report: "The configuration of the 2009 audiogram is not diagnostic of NIHL." It is the panel's understanding that audiograms that confirm NIHL have a unique "reverse check" type of pattern that is distinct to NIHL. The worker's 2009 audiogram does not contain such a pattern for either ear. That is not to say that the worker was not suffering from hearing loss, but that the hearing loss in 2009 was not the result of prolonged exposure to noxious noise or NIHL.
The worker's 2017 audiogram does contain a bilateral "reverse check" pattern consistent with NIHL. However, the worker was unable to identify any changes in his working environment or activities between the time his 2009 audiogram was conducted and employment ended in 2015 that would establish that there was an increase in noxious noise during that period to cause work related NIHL.
The Policy criteria for establishing a work-related NIHL state that the worker must have been exposed to noxious noise at work for a minimum of 2 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 not satisfied that this threshold has been met in this case.
The panel also notes that there was no testing of the noise levels that the worker would have been exposed to in the course of his employment as a school bus driver. Noise testing results were provided by the employer to WCB for testing that was conducted on a number of different bus routes in 2015. The testing included a number of different buses operating on a variety of routes, including buses that were built in 2002. While the noise testing confirmed that the buses were loud while on their routes, none of the testing exceeded an average of 85 db. minimum threshold as required under the WCB policy. Further, given that the worker only worked 4 hours per day, the noise level would have to have exceeded, on average, 88 db. While the panel recognizes that the noise testing conducted by the employer may not reflect the exact circumstances of the worker's particular bus route, the panel accepts that the noise testing is relevant and ought to be given appropriate weight within the context of all the information provided.
The panel questioned the worker at considerable length with respect to his job duties and the extent of his exposure to noxious noise levels. However, while the panel accepts that his duties as a school bus driver involved being exposed to loud noises while operating his school bus, there was insufficient evidence to clearly establish that, on a balance of probabilities, the worker was exposed to noise levels that would meet the criteria set out in Policy 126.96.36.199
Based on the foregoing, the panel finds 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.
M.L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M.L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of December, 2018