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 February 21, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker submitted a Worker's Claim for Hearing Loss with the WCB on January 23, 2017. On his form, the worker reported that he had noticed a gradual loss of hearing over the last few years. He attributed his hearing loss to his job duties with the employer from 1981 to 2017, identifying "loud engines, some worst (sic) than others", "loud radios in cab", and "wheel noises from boxcars".

An audiogram conducted on December 20, 2016 was submitted by the worker with his claim form. The audiologist who conducted the testing noted that the worker had "Normal hearing from 250Hz to 2K then slopes to a mild to moderate high frequency sensorineural hearing loss" in his right ear and "Normal hearing from 250Hz to 3K then drops to a moderate to moderately-severe high frequency sensorineural hearing loss" in his left ear. The audiologist recommended that the worker be fitted with hearing aids in both ears.

On April 5, 2017, the employer provided an Employer Hearing Loss Report for the worker. In addition, the employer provided the WCB with a list of the worker's job titles from 1998 to the present and copies of audiograms conducted on the worker from 1995, 1997, 1998, 2001, 2003 and 2016.

The worker's file and the audiograms provided by the employer were reviewed by a WCB Ear, Nose and Throat (“ENT”) specialist. The WCB ENT specialist opined that the worker's audiograms indicated noise induced hearing loss in the worker's left ear in 1997 and in both ears in 2016.

The WCB advised the worker on April 26, 2017 that his claim was not acceptable. While it could be confirmed the worker was exposed to noxious noise levels during his employment, his hearing loss could not be causally related to his job duties. The evidence provided noted that the worker wore hearing protection since the early 2000s which reduced the noise exposure to below the threshold of 85 decibels. It was further noted that the testing did indicate noise induced hearing loss in the worker's left ear in 1997 but it was not until 2016 that it was present bilaterally.

The worker had indicated on his claim form that he was a right handed firearm user but that noise exposure at work was noted to be the most probable explanation for the additional hearing loss on the left side.

On May 12, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The worker responded to the WCB's decision regarding his firearm use and noted that he had not used a firearm in over five years and when he had, it was to only fire one or two shots. He felt that would not have affected his hearing. He further noted that ear protection [at work] was not always provided "up until the last few years".

Review Office determined on June 29, 2017 that the worker's claim was not acceptable. Review Office placed weight on the evidence that the worker's hearing loss started asymmetrically, and that the type of noise that the worker was exposed to would have affected both ears equally. Review Office did not find evidence that supported the workplace noise to be the cause of the worker's hearing loss in his left ear. Review Office further found that exposure to firearm noise can cause severe hearing loss in as little as one shot as it can create noise over 140 decibels and that repeated exposure can lead to progressive deterioration in hearing. Review Office also found that the worker did not have noise induced hearing loss in his right ear until 2016 and that if his job duties were a contributing factor to his hearing loss, the worker would have been affected sooner as he had been with the employer since 1981.

On April 23, 2018, the worker's representative submitted new evidence including a report dated January 17, 2018 from an ENT specialist and requested that Review Office reconsider their earlier decision. The worker's representative noted that the worker did not receive training or instruction on the use of hearing protection and noise exposure and was unaware of the type of earplugs that were used at his employment. As such, the worker's representative felt that without knowing the specific model and rating of the earplugs used by the worker, it should be assumed that the level of protection they provided could not be rated. The worker's representative further noted that as audiometric testing had not been done on the worker between 2003 and 2016, the worker's ENT specialist noted that the worker's hearing loss could have been a result of "cochlear damage from noise exposure occurs at a microscopic level and may take years to manifest clinically with audiometric testing."

Review Office advised the worker on May 15, 2018 that his claim was not acceptable. In coming to its decision, Review Office considered the new evidence submitted and did not agree with the opinion of the worker's ENT specialist that the worker could experience hearing loss in his left ear only initially, and then be affected in his right ear approximately nineteen years later.

The worker's representative filed an appeal with the Appeal Commission on May 26, 2018. An oral hearing 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.

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 44.20.50.20, 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.

Worker’s Position

The worker was represented at the hearing by his union. In brief summary, the worker’s position on appeal was that the Review Office did not obtain or consider all the appropriate information related to his long-term exposure to noxious noise levels during the course of his employment.

The worker provided a detailed overview of his work experience. From 1981 to 2017 (excluding being laid off from 1981 to 1983) the worker was employed with the employer for 32 plus years, working on or about the railroads, where his duties included but were not limited to:

• Standing on the railbed beside the train tracks when connecting/disconnecting railcars/locomotives; 

• Switching tracks; 

• Servicing customers; 

• Inspecting passing trains and guiding the engineer with the movement of the train; 

• Riding outside of the locomotive over public crossings and switches to and from the assigned location within yards and nonmain tracks; 

• Riding inside the locomotive cab when travelling at speed from one terminal to another on main tracks; and, 

• Position outside on the ground next to the tracks of passing trains to listen and visually inspect them for defects.

Further, the worker’s position was that there were various sources of noise to which he was exposed to during his years of employment, such as:

• Running locomotive engine; 

• Grinding of the wheels; 

• Wheel squelch; 

• Retarders; 

• Bells; 

• Horns; 

• Slack action; 

• Switching; 

• Shunting; 

• Railcar impacts; 

• Radios and audible signals; 

• Pneumatic controls; 

• Air compressors; and, 

• Airbrake systems.

The worker’s evidence is that while he would not be exposed as often and to the same degree of extreme levels while riding inside locomotives with the windows closed, he would be constantly exposed to noise when he had to be outside performing work outside of the locomotives. However, it was the worker’s evidence that when he had obtained enough seniority he was able to choose a route where much of his work comprised being in the locomotive.

Of note, regarding the fact that he was a right handed fire arm user, the worker acknowledged that this would have been one of the contributing factors to explain the asymmetric hearing loss with the left ear being worse. In addition, it was recognized that it is generally unusual in occupational noise induced hearing loss cases for there to be a significant difference in hearing loss between the two ears, unless there is an occupational explanation for the difference.

Finally, the worker submitted that the fact that there was no audiometric testing results available between 2003 to 2016, supports the conclusion that it can be assumed that the worker had noise induced hearing loss, but it was not detected on account of there being no testing. As well, with respect to the fact that the employer had mandatory hearing protection policies in place, it was the workers position that even with that protection, he would have been exposed to average levels of noxious noise in excess of 85 decibels on a daily basis while performing the duties on the ground outside of the locomotive.

In sum, given the length of time that he was employed and the levels of noises alleged to have been exposed to on a daily basis, the worker submitted that the noise threshold outlined in the WCB policy has been met.

Employer’s Position

The employer participated in the hearing and was represented by their WCB specialist as well as their Disability Management Manager.

The employer submitted that they are not disputing that the worker was exposed to some noxious noise levels during his employment. However, the employer submitted that exposure does not mean cause, but rather it means that noise levels are present or that a noise hazard does exist.

Further, as required by provincial, federal and U.S. regulations, hearing protection is mandatory and has been mandatory for at least two decades. The employer submitted that at all relevant times it had and has safety rules which included that hearing protection must be worn at all times.

As well, education and training were provided whereby before employees are permitted to perform work in the areas with the measured noise levels greater than 84 decibels, they must participate in the hearing conservation program and receive education and training. Further, efficiency testing is and was performed to ensure proper use and compliance. The employer also advised that hearing protection, which reduces exposure below 85 decibels, has been made easily available at all locations. In that regard, the employer submitted that there was no evidence to show that the worker was non-compliant with any of the mandatory workplace requirements or efficiency testing that he would have received.

Finally, the employer underscored Review Office’s decision that the most common cause of asymmetric hearing loss was firearm use and also underscored the fact that the worker is a right handed firearm user who was exposed to gun fire without hearing protection. The employer noted that this type of noise exposure is consistent with the audiometric testing results and, therefore, relying on the tangible evidence that is before the panel, the logical conclusion is that the worker’s hearing loss cannot be causally related to the performance of his work duties.

Analysis

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 his exposure to high levels of noxious noise during his employment 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 present matter, the panel finds that while the worker was employed in a noisy environment, there was an appropriate workplace policy in effect with regards to mandatory hearing protection. Therefore, in the absence of any evidence proving otherwise, it is accepted by the panel that the worker was wearing appropriate hearing protection.

While the worker’s ENT specialist did provide that it is possible that the worker also sustained occupational workplace noise exposure to explain his right sided sensorineural hearing loss and also a portion of his left sided sensorineural hearing loss, the panel finds that with respect to exposure to noise outside of the locomotive cab, the evidence provided does not support that the worker's job duties exposed him to louder and consistent noise exposure. Rather, the panel finds that the noise exposure was random and intermittent over the course of the day and not sufficient enough to establish ongoing exposure of over 85 decibels.

In particular, with respect to the worker’s ENT specialist, what is significant to the panel is that there is no account for trauma. While the worker felt that there was extreme noise, there was no evidence of acoustic trauma which would have resulted in hearing loss. The panel acknowledges that the worker may likely have been exposed to noise during his employment; however, the evidence indicates that he wore hearing protection and that the hearing tests on the file do not demonstrate that he sustained noise induced hearing loss while at work.

The panel therefore finds that the requirements of the WCB policy regarding Noise-Induced Hearing Loss have not been met and accordingly, a work-related injury has not been established.

Therefore, the worker’s claim for noise induced hearing loss is not acceptable. The worker’s appeal is dismissed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of April, 2019