The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to a hearing aid for his right ear. A file review was held on December 5, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a hearing aid for his right ear.

Decision

That the worker is entitled to a hearing aid for his right ear.

Background

On September 10, 2012, the worker filed a claim with the WCB for hearing loss which he attributed to his work with the employer. The WCB obtained noise exposure levels from the employer and medical reports, including audiogram results. In a decision dated February 20, 2013, the WCB denied the worker's claim. On February 22, 2013, the worker requested that Review Office reconsider that decision.

By decision dated April 24, 2013, Review Office determined that the worker's claim was acceptable for noise-induced hearing loss ("NIHL"). Review Office stated, in part, that:

In considering the information from the worker and the employer regarding his employment history, noise exposure and the noise level test results, the Review Office finds, on a balance of probabilities that the worker was exposed to noxious noise at or above an average of 85 decibels for a minimum of two years in accordance with the Policy. The file documentation supports the worker was exposed to noise at work starting in 1971 but he has worn plugs for ear protection since July 2007.

[WCB medical consultant], on November 30, 2012, noted that the 2008 audiogram showed the signs of noise induced hearing loss. This is in keeping with the audiologist's opinion of September 29, 2012 [sic] which stated, "Audiometric configuration is consistent with noise." Typically, noise induced hearing loss is symmetrical and in this case, the worker's hearing loss in his left ear is worse than in his right ear. However, the Review Office finds the worker's hearing loss in his left ear is accounted for, in part, by his reported noise exposure at work.

The worker's file was referred to Compensation Services for follow-up. In a decision dated May 28, 2013, Compensation Services advised the worker that his file had been reviewed by a WCB ear, nose and throat ("ENT") specialist, who noted that the sum of the hearing loss in his right ear had been determined to be 25 decibels and in the left ear 45 decibels, which was not considered to be ratable, and the worker therefore did not qualify for a permanent partial impairment award. Compensation Services also advised that the ENT specialist was of the opinion the worker would benefit from the use of one hearing aid, and the WCB would cover the purchase of that hearing aid, as well as the cost of batteries and ongoing maintenance with prior approval.

On June 19, 2013, the worker requested that Review Office reconsider Compensation Services' May 28, 2013 decision. The worker submitted that he had a hearing loss in both his right and left ears and binaural hearing aids were recommended by two audiologists, but the WCB only approved a hearing aid for his left ear.

On October 8, 2013, Review Office determined that the worker was not entitled to funding for a hearing aid for his right ear. Review Office noted that the first hearing aid recommendation was in a December 16, 2008 audiological report which indicated moderate high-frequency sensorineural hearing loss bilaterally, worse on the left side than the right and that a hearing aid on the left side might be helpful. No recommendation was made for a hearing aid on the right side. The second audiological examination of September 20, 2012 reported "a precipitous, sensorineural loss centred around 4 - 6 KHz in both ears" and recommended hearing aids bilaterally.

Review Office stated that the worker's hearing loss was accepted in their earlier decision on an asymmetrical basis only, with the left-sided loss being more pronounced than the right. Review Office noted that the period between the 2008 and 2012 audiograms did not indicate exposure to any further occupational noise, but the worker's hearing was getting worse. Review Office stated that the worker had used hearing protection since July 1, 2007 and any progression of hearing loss between 2008 and 2012 could therefore not be attributed to workplace exposure. Review Office accepted the opinion of the WCB ENT specialist that the 2008 audiological report best captured the extent of the worker's compensable NIHL and noted that an aid was only recommended for the left ear at that time.

On June 22, 2018, the worker appealed the Review Office decision to the Appeal Commission and a file review was arranged.

Reasons

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.

Subsection 27(1) of the Act provides that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury.

WCB Policy 44.20.50.20.01, Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The effective date for the Policy is for claims arising from accidents on or after April 1, 2000 and a date of notification prior to October 1, 2013. The relevant time period for this claim falls within those dates, and as such, the Policy applies to this case.

The Policy states, in part, as follows: 

… 

3. Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is 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 will be reduced by half. 

… 

7. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board…

Worker's Position

The worker was self-represented on the appeal. The worker's position, as set out in his appeal form, was that although his right ear was not as bad as his left ear in 2012, it still showed noise damage in the high pitches. The worker submitted that the 2012 hearing test results for his right ear showed the same "noise damage/noise notch" pattern as is associated with noise-induced hearing loss, and he should have been covered for a hearing aid for his right ear as well as his left ear at that time.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue on this appeal is whether or not the worker is entitled to a hearing aid for his right ear. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires a hearing aid for his right ear as a result of his exposure to workplace noise. The panel is able to make that finding.

The worker has an accepted claim for noise-induced hearing loss based on his exposure to noxious levels of noise in the workplace. In their April 24, 2013 decision, Review Office found that the worker was exposed to noxious noise at or above an average of 85 decibels for a minimum of two years in accordance with the Policy. Review Office stated that the WCB ENT consultant noted the 2008 audiogram showed the signs of noise induced hearing loss, and that this was in keeping with the audiologist's opinion of September 20, 2012.

Review Office went on to state that NIHL is typically symmetrical and that the worker's hearing loss in his left ear was worse than in his right ear. Review Office found, nevertheless, that the worker's hearing loss in his left ear was "accounted for, in part, by his reported noise exposure at work," that the criteria in the Policy had been met and the worker's claim was acceptable.

In their subsequent decision of October 8, 2013, Review Office determined that the worker was entitled to a hearing aid for his left ear only, based on the worker's 2008 audiogram and the WCB ENT consultant's advice that according to the 2008 audiogram, the worker was a borderline candidate for a left hearing aid only. Review Office noted that the second audiological exam on September 20, 2012 reported that the worker had a sensorineural hearing loss in both ears and recommended hearing aids bilaterally, but that there was no evidence the worker was exposed to any further occupational noise between 2008 and 2012 and any progression of hearing loss during that period of time could not be attributed to workplace exposures.

The panel notes that the worker's claim related to a loss of hearing in both ears, and there was sufficient evidence for the WCB to accept the claim based on the worker's bilateral exposure to noxious noise levels in the workplace. The panel further notes that the information on file does not indicate that there was a significant difference between the occupational noise exposure to the worker's right ear and his left ear, and that they were therefore equally exposed to that noise.

The September 20, 2012 audiogram shows a deterioration in the worker's hearing. The audiologist stated that the assessment revealed a precipitous, sensorineural loss centred around 4 - 6 KHz in both ears, the audiometric configuration of which was consistent with NIHL, and recommended hearing aids bilaterally.

The panel is satisfied that the medical information on file supports that the hearing loss in the worker's right ear as identified in the September 20, 2012 audiogram has a significant sensorineural component that is work-related. The worker had NIHL in his right ear at the time of the 2008 audiogram, but it was not severe enough to require the use of a hearing aid. In 2012, the combined effect of his work-related hearing loss and the non-compensable deterioration in his hearing caused the worker's audiologist to recommend the use of a hearing aid for the right ear as well as his left. The panel is satisfied that but for the workplace exposure, the worker would not have required the use of a hearing aid for his right ear.

The panel notes that paragraph 7 of the Policy contains mandatory language ("shall") and outlines two prerequisites for entitlement, namely an accepted claim for hearing loss and a specialist's recommendation. In the present case, the panel is satisfied that both of these prerequisites are met: there is an accepted claim and the worker's specialist has recommended the use of a hearing aid for both of the worker's ears.

In light of the foregoing, and given that the WCB has accepted responsibility for a hearing aid for the worker's left ear based, in part, on his work-related NIHL, the panel is satisfied that a hearing aid is similarly required and should be provided for the worker's right ear.

As a result, the panel finds, on a balance of probabilities, that the worker requires a hearing aid for his right ear as a result of his exposure to workplace noise. The worker is therefore entitled to a hearing aid for his right ear.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of February, 2019