The Appeal CommissionThe Workers Compensation Act of Manitoba

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 May 28, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a claim for hearing loss with the WCB on May 22, 2008 and provided the WCB with a copy of an audiogram conducted on March 14, 2008. The worker attributed his gradual hearing loss to his employment in the construction and ironworks fields over the course of many decades.

On December 16, 2008, the WCB advised the worker that they required more information regarding his employment and exposure to noise in relation to his claim. The WCB received information from the worker's union on January 10, 2014 noting the worker's employers and listing the time periods the worker was employed with them.

The worker had an audiogram conducted on February 4, 2014. The audiologist provided the test results to the WCB on February 5, 2014 and noted "Test results indicated a bilateral mild sloping to moderate sensorineural hearing loss."

At the request of the WCB, the worker's claim was reviewed and on February 12, 2014, the WCB ENT (Ears, Nose and Throat) specialist provided the following opinion:

We have 2 audiograms on file dated March 14, 2008 and Feb. 4, 2014. Both audiograms have a Cookie-Bite configuration which is suggestive of a genetic or heredity type of hearing loss. They are not typical of NIHL (noise induced hearing loss).

On March 17, 2014, the worker was advised by the WCB that his claim was not acceptable. The worker was advised that in order to establish a claim for work-related noise induced hearing loss information such as confirmation of noise exposure from his employer, noise exposure in excess of 85 decibels for 8 hours per day over a 2 year period in the Province of Manitoba and medical information that confirms the hearing loss is indicative of noise exposure, must be established. The WCB noted confirmation of the worker being exposed to noise however, based on the opinion of the WCB ENT specialist, the audiograms provided did not provide a diagnosis of noise induced hearing loss but rather a genetic or hereditary type of hearing loss.

The worker requested reconsideration of the WCB's decision to Review Office on April 25, 2016.

Review Office advised the worker on June 9, 2016 that his claim was not acceptable. Review Office relied on the opinion of the WCB ENT specialist's opinion that the worker's hearing loss was not indicative of noise induced hearing loss.

The worker's representative requested that Review Office reconsider their decision on November 8, 2016 and submitted additional medical information. The worker's representative provided copies of letters from an otolaryngologist who had examined the worker. The otolaryngologist noted that it was his opinion that the audiometric findings he reviewed were "not consistent with a Cookie-Bite configuration and that [the worker] has acquired sensorineural hearing loss and not a hereditary sensorineural hearing loss."

Review Office provided the additional medical evidence to the WCB's ENT specialist and on January 11, 2017, the specialist provided the following opinion that the two audiograms have a cookie-bite configuration with the maximum loss being the mid-frequency range. Cookie-bite audiograms are not typical or diagnostic of noise induced hearing loss.

On January 18, 2017, Review Office advised the worker that they had reviewed his claim, including the information provided by the worker's representative, and determined that his claim was not acceptable. Review Office relied on the information of the WCB ENT specialist as it was felt that the detailed technical analysis provided gave supportive rationale to the specialist's conclusion that the worker did not have noise induced hearing loss.

The worker filed an appeal with the Appeal Commission on January 9, 2018. An oral hearing was held on May 28, 2018.

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 July 17, 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 Act, regulations and policies of the WCB's 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.

WCB Policy 44.20.50.20, 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.

Worker's Position

The worker was self-represented. He explained his reasons for appealing the WCB decision to deny his claim.

The worker provided information on the various worksites he was employed at over his career and answered questions from the panel.

The worker told the panel that he arrived in Winnipeg in 1968. He worked in construction. His first job was working on the piles and beams on a bridge. He also worked cutting and installing concrete floors in big buildings. Later he worked in northern Manitoba and Saskatchewan on dams and hydro projects. He used noisy drills and saws. He acknowledged that some jobs were seasonal and other jobs lasted for several years. He also acknowledged that at some sites there was blasting but that he never got caught in a blast.

Referring to a specific site, he advised that:

When I went there, my first job was go inside those big mixers with the sledgehammer, those big steel mixers with a sledgehammer and break all the concrete.

He said that he was not provided with hearing protection until later in his career, the late nineties.

The worker advised that he worked until 1996, when he had a workplace injury and did not work again.

He also advised that he saw a doctor about his hearing because his wife complained that he turned the TV up too high. She first noticed his hearing problem in the 1980s. He had his hearing tested and it showed that he had a hearing loss. He applied to the WCB but his claim was refused.

He advised that he never had an ear infection. He also advised that his hearing loss has not changed since the early nineties.

The worker relied upon the opinion of an ENT specialist who reviewed correspondence on the file and audiometric findings from tests conducted on February 4, 2014 and April 18, 2016. The panel wrote to the specialist to obtain additional information. He advised that he believed the worker had a noise induced hearing loss because:

The reason is that the patient worked in construction from 1968 until 1996 and was exposed to high intensity occupational noise.

He also commented that:

I also stated that we do not have audiometric testing done when he was employed which I agree does make it difficult to state with 100% absolute certainty that the pattern is noise -induced hearing loss. Presbycusis could also be contributing to his hearing loss.

Not all patients with noise induced hearing loss will have the typical notching pattern as described by [WCB Hearing Specialist] In this case, it is difficult to distinguish noise-induced hearing loss from age-related hearing loss. Which in my opinion means that noise induced hearing loss cannot be ruled out.

Finally, my opinion is not changed by the fact that this is not typical of a genetic hearing loss.

Analysis

The issue on this appeal is whether or not the worker's claim for Noise Induced Hearing Loss (NIHL) is acceptable due to long-term exposure to noxious levels of occupational noise.

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 as set out in the Policy during his employment with the accident employers. The panel is not able to make this finding.

The Policy provides that in order to find 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.

The worker worked in construction at many sites over his career. The panel notes that there was a lack of information as to the noise levels that the worker was exposed to in the course of his employment. For the vast amount of the worker's career, no noise testing results are available.

The worker stopped working in 1996 due to a workplace accident. He advised that his exposure to noise ended at that time.

The panel questioned the worker at considerable length with respect to his job duties and the extent of his exposure to noxious noise levels.

As noted above, the panel was not able to find that the worker sustained a noise-induced hearing loss due to exposure to high levels of noxious noise in the workplace.

The worker attended a hearing specialist. The panel wrote to the specialist to obtain additional information.

The panel considered reports from the WCB ENT Consultant who reviewed the file on two occasions. The WCB ENT consultant opined, in January 2017, in part, that:

3. No, We have two audiograms on file performed by certified audiologists dated March 14, 2008 and Feb. 4, 2014. The two audiograms have a cookie-bite configuration with the maximum loss being the mid-frequency range. Cookie-bite audiograms are not typical or diagnostic of noise-induced hearing loss. As shown below, the average loss in the frequencies 500, 1000 and 2000 is greater than the average loss in the 3000, 4000 and 6000 Hz.

2008 audiogram (right ear) Average 500, 1000 and 2000 Hz = 33.3 dB 

Average 3000, 4000 and 6000 Hz = 28.3 

2008 audiogram (left ear) Average 500, 1000 and 2000 Hz = 33.3 dB 

Average 3000, 4000 and 6000 Hz = 31.6 dB 

2014 audiogram (right ear) Average 500, 1000 and 2000 Hz = 35 dB 

Average 3000, 4000 and 6000 Hz = 25 dB 

2014 audiogram (left ear) Average 500, 1000 and 2000 Hz = 36.6 dB 

Average 3000, 4000 and 6000 Hz = 30.0 dB

Usually in NIHL, 4000 Hz is the worse frequency. This is not the case in the worker's two audiograms.

4. Based on the above information and the configuration of the audiograms, I cannot conclude that noise exposure contributed to the worker's hearing loss.

The panel attaches greater weight to the opinion of the WCB ENT Consultant to that of the worker's ENT specialist. The panel finds that the WCB's specialist provided a more detailed explanation of the hearing tests results, and particularly the cookie-bite audiograms shown on the worker's tests which are not typical or diagnostic of noise induced hearing loss.

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. Further the panel finds that the audiometric tests are not consistent with noise induced hearing loss. 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 and hearing aids is not approved.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of August, 2018