Decision #164/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A file review was held on November 1, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
Applicable Legislation and Policy
In considering this appeal, the panel is bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB Board of Directors.
Under subsection 4(1) of the Act, 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.
With respect to claims for hearing loss, the injury can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise.
The WCB Board of Directors passed WCB Policy 188.8.131.52. Hearing Loss ("the Policy") which applies to hearing loss claims arising from long-term exposure to occupational noise. This Policy applies to claims for hearing loss where the notification date is on or after October 1, 2013.
The Policy states, in part, as follows:
1. Noise induced hearing loss occurs gradually – often over several years – and most hearing-loss claims do not involve a loss of earnings. For these reasons, it can be difficult to determine when the impairment began. For the purposes of this policy, the date of the accident will be: a) The date a loss of earnings has occurred, or b) The date of an audiogram which shows evidence of noise-induced hearing loss.
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 was self-represented. The worker's appeal form indicates that the WCB decision is biased, not independent and discriminates on the basis of age.
In a letter, dated May 25, 2018, the worker advised that he disagreed with the employer's letter. He also stated that the WCB ENT is not an independent doctor. The worker said that he was not provided with the December 5, 2017 report from his ENT specialist. He wrote:
In conclusion, I would like to state the fact that my hearing loss started gradually at the [employer's] plant under extreme noises and other related conditions from October 1980 to 2018.
Regarding hearing tests, the worker indicated that he had not been given audiogram tests from 2002 to 2018.
In a letter dated April 11, 2018 the worker indicated that he found the WCB decision to be biased. He stated that the WCB did not consider information he submitted about his workplace. He said that he had been exposed to extremely high noises, coal dust and asbestosis conditions. He also said that the equipment he had been provided was inadequate and did not give him full protection.
The employer was represented by an employer advocate. In a letter dated October 25, 2018, the employer's representative submitted, in part, that:
There are two reasons why this claim is not acceptable:
1. There is no evidence that [worker] was exposed to noxious noise at work that would meet the criteria required under WCB policy. File documentation shows that he was not exposed to more than two to three hours of noise a day and did wear hearing protection which further reduced his limited exposure.
2. There must be medical evidence of NIHL. [Worker's] doctor, an ENT specialist and the WCB ENT specialist both indicated that audiograms were suggestive of presbycusis which is age-related. Audiograms from 1982-2004 showed normal hearing at 4000 and 6000 Hz in the left ear. This is not indicative of NIHL. The most recent audiogram taken on March 19, 2018 also was not typical of NIHL.
The worker is appealing the WCB decision that his claim for hearing loss is not acceptable.
For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a noise-induced hearing loss due to exposure to high levels of noxious noise during his employment with the accident employer as set out in the WCB's Policy. The panel is not able to make that finding.
The Policy provides that in order to be satisfied that a worker's hearing loss occurred at work, 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 eight hours of exposure on a daily basis. For every increase in noise level of three decibels, the required exposure time is reduced by half.
In the worker's case, the established facts include:
• the worker was employed in a noisy environment and therefore could have sustained a hearing loss due to the noise.
• the worker wore hearing protection.
• the hearing tests do not show that the worker's hearing loss is work related.
• the medical experts, specifically the WCB ENT specialist and the worker's own ENT specialist, have reviewed the worker's hearing tests and have found that the hearing loss was associated with presbycusis, which is age-related hearing loss.
The panel notes that in a letter dated September 12, 2017, the worker's ENT specialist advised that she considered the audiological assessment and stated "the configuration of the audiogram is suggestive of presbycusis." In a letter dated December 5, 2017, the worker's ENT specialist commented that "There was evidence of high frequency sensorineural hearing loss which could be age related."
The panel acknowledges that the worker was likely exposed to significant noise for long hours during the early years in his career; however, the evidence indicates that he wore hearing protection and the hearing tests do not demonstrate that he sustained a noise induced hearing loss.
The panel finds that the requirements of the Policy have not been met and accordingly, a work related injury has not been established. Therefore the worker's claim for a noise-induced hearing loss is not acceptable.
While the panel understands the worker's frustration with being denied coverage for hearing devices, the panel must consider the evidence, which shows that his hearing loss is not related to noise exposure at work.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
D. Neal, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of November, 2018