Decision #149/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for hearing aids. A file review was held on October 18, 2018 to consider the worker's appeal.
Issue
Whether or not responsibility should be accepted for hearing aids.
Decision
Responsibility should not be accepted for hearing aids.
Background
The worker filed a Worker Hearing Loss Report with the WCB on January 22, 2018. The worker noted that he had been employed with the employer from July 11, 1967 until he retired on December 31, 1994 and related his hearing loss to his job duties while employed.
The worker had a hearing test conducted on February 15, 2018 that recommended bilateral hearing aids.
On March 20, 2018, the employer provided the WCB with copies of the worker's audiograms from 1988 to 1994. The audiograms were reviewed by the WCB's ENT consultant and on April 2, 2018 the consultant opined that, based on the October 1994 audiogram done prior to the worker's retirement, the worker did suffer from hearing loss but the loss was not ratable and hearing aids were not required.
The WCB advised the worker on April 17, 2018 that his claim for noise induced hearing loss was accepted but responsibility for hearing aids or an impairment award was not accepted. It was noted that his hearing loss, based on the 1994 audiogram, was not sufficient enough to require hearing aids at that time. The WCB further confirmed that the worker retired in 1994 and had not had any additional work-related noise exposure since retirement. As such, any additional hearing loss that occurred since the worker's retirement would not be related to his employment and responsibility would not be accepted for hearing aids.
On May 7, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker advised that he had suffered hearing loss from his employment, which had gotten worse as he aged and he was having difficulty functioning as he used to as a result.
Review Office advised the worker on June 4, 2018 that responsibility would not be accepted for hearing aids on his claim. Review Office noted that the WCB accepted responsibility for the worker's noise-induced hearing loss as a result of his employment but as the worker had retired in 1994, he stopped being exposed to hazardous levels of noise. Accordingly, any further deterioration in the worker's hearing after his retirement and his need for hearing aids, would not be related to his job duties and responsibility would not be accepted for hearing aids.
The worker filed an appeal with the Appeal Commission on June 14, 2018. A file review was arranged.
Reasons
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 44.20.50.20. 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.
Worker's Position
The worker was self-represented. In a letter attached to his appeal form, the worker advised that;
…I have always worked to the letter of the law and I have always followed the rules that govern my workplace. If my employer asked me to follow procedures, given the task, I would follow without hesitation. I've always felt my employer had my best interest especially when it came to safety. During my earlier years (1970's and 1980's), my company may not have had the same knowledge or information that we have today when it comes to safety. Studies on hearing protection or hearing loss was not yet sophisticated enough for prevention as it is today and during that time we were not asked to do much when it came to protecting our hearing. During the time that I worked for [employer], I did lose some hearing and it was recorded during that time. I'm not an expert in this field but I can tell you from my experience when I started losing my hearing it was gradual and accumulative over the years. When I retired, I didn't think much about the affects (sic) that I would have to deal with later on in my retirement. This has been an ongoing impairment and it only gets worse over time. Why did I wait so long to file a claim? Most people don't feel that it will continue once you've left the workplace but this type of ear damage stays with you forever. I've tried to deal with it the best way I can but it's finally time to do something about it. I hope you reconsider.
In a letter attached to Review Office, the worker described his duties and the noise he was exposed to. He advised, in part, that:
…In the car shop we were exposed to a number of sounds due to equipment running; moving parts, heavy equipment such as cranes, cutting, shearing, grinding tools etc. I also worked for several years in the draft gear shop with the same type of constant noise. All noise with different pitch sounds that would affect ones hearing after a long period of exposure. I would often come home with humming in my ears after work…since those work years I have always been hard of hearing but I have managed to live with my impairment…
Employer's Position
The employer was represented by its Workers Compensation Officer who provided a written reply to the Appeal Commission and also to the Review Office.
In an email dated September 21, 2018, the employer's representative advised:
It remains our opinion that based on the further review of the file that the WCB and the Review Office decisions were correct based on medical opinion and WCB Policy, and we respectfully request that the Appeal Commission uphold the prior decisions to disallow responsibility for hearing aids and entitlement to an impairment award.
In a submission dated May 30, 2018 to the Review Office, the employer's representative noted that the worker had multiple audiogram tests conducted while employed with the employer in 1988, 1992, 1993 and 1994. She noted that the records indicate that the worker wore hearing protection and was wearing a dosimeter in the 1993 noise level test of his work area. She advised that the employer does not dispute that the worker was exposed to noise while working for it. She advised that the worker has not worked for the employer since 1994 when he retired.
She submitted that at the time his employment ended, there was no evidence his hearing loss was of the severity that hearing aids were required. She noted that the worker did not seek medical attention in relation to his hearing until February 15, 2018 at the age of 81, some 24 years after his departure from working for the employer.
The employer representative also noted that once a worker has retired and is no longer exposed to noise at work, any subsequent deterioration in hearing is not considered compensable.
Analysis
The worker has an accepted claim for hearing loss and is seeking hearing aids related to his hearing loss.
This appeal concerns whether or not the WCB is responsible for the provision of hearing aids to the worker as a result of employment related hearing loss. For the worker's appeal to be approved, the panel must find that hearing aids are necessary to provide relief for an injury as a result of a workplace accident. The panel was not able to make this finding.
In making this decision the panel relies upon the following facts:
• the worker was employed by the accident employer from 1967 to 1994.
• The worker retired in 1994. • hearing protection was available since 1967 and the employer's records show the worker was issued "white plugs" in 1967.
• hearing tests were conducted in 1988, 1992, 1993 and 1994.
• the hearing test showed that the worker sustained a hearing loss but did not require hearing aids.
• the worker underwent hearing tests in February 2018; the tests demonstrated that he required bilateral hearing aids.
• on April 2, 2018 a WCB Ear, Nose and Throat (ENT) consultant reviewed the hearing tests and advised that the worker demonstrated noise induced hearing loss (NIHL) in his left ear in 1988 and in both ears in 1992, that the hearing loss is not ratable and that hearing aids are not needed in relation to this hearing loss.
Based on the above information, and the evidence provided by the employer and the worker, the panel is unable to accept the worker's position that his current hearing loss is due to his employment. The panel attaches significant weight to the opinion the WCB ENT consultant who reviewed the hearing test results and concluded that the worker's employment hearing loss is not ratable and that hearing aids are not required due to this loss.
While the worker's hearing appears to have deteriorated, the evidence does not establish that the deterioration was due to noise exposure in the workplace.
The panel notes that the worker's claim for hearing loss is accepted. However, the issue before the panel is whether the worker is entitled to hearing aids. The panel is not able to find, on a balance of probabilities, that the worker needs hearing aids because of the workplace exposure to noise. The need for hearing aids was identified almost 24 years after he retired from his employment and is not due to the workplace exposure to noise.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of October, 2018