Decision #48/19 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to hearing aids. A hearing was held on February 20, 2019 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to hearing aids.
Decision
That the worker is entitled to hearing aids.
Background
On July 18, 2011, the worker filed a claim with the WCB for noise induced-hearing loss which he attributed to working for many years in a loud machine shop where hearing protection was not mandatory or common.
On September 10, 2011, the WCB's ENT (Ear, Nose and Throat) consultant reviewed the worker's audiogram dated July 5, 2011, and opined as follows:
Based on the above audiogram, the worker is a borderline candidate for bilateral hearing aids at this time. Most probably he can function well without hearing aids. May be it is a good idea to have him re-tested at [location] and get an opinion regarding the need for hearing aids at this time.
On November 30, 2011, the worker was assessed by a second audiologist. In a report to the WCB, the second audiologist noted that the worker reported "having a 20-year-history of work-related noise exposure having worked in a machine shop under noisy conditions. He no longer works in a noisy environment and indicated that he has not been exposed to any significant noise in the 48-hour period prior to this assessment." The audiologist opined:
[The worker's] high frequency loss is consistent with noise trauma and would contribute to his difficulty hearing conversational speech with ambient noise present. The mild loss, however, does not warrant hearing aids at this time, which we discussed and [the worker] was in agreement. [The worker] should utilize appropriate hearing protection should noise levels dictate either at work or at home. [The worker] could also benefit from having a one-to-two year audiologic review to monitor his hearing loss.
On December 15, 2011, the WCB advised the worker that his claim for noise-induced hearing loss was accepted based on his exposure to noxious levels of noise at work. The WCB further advised the worker that based on the opinion of the WCB ENT consultant, his hearing loss did not warrant hearing aids at that time.
On February 7, 2018, the worker requested that the WCB review their decision that he was not entitled to hearing aids. The worker submitted that working almost 20 years in a very noisy machine shop environment, with no hearing protection, caused irreversible damage to his hearing. The worker stated that after years of continued frustration coping and adapting with this disability, he felt that something had to be done to improve his quality of life.
On February 15, 2018, the WCB advised the worker that there was no change to their December 15, 2011 decision that he was not entitled to hearing aids. The WCB noted that hearing protection was enforced throughout the worker's employment from 2011 to 2016 and the available information did not establish work-related exposure to noxious noise for a sufficient period of time to establish ongoing exposure to noise since his claim was last reviewed.
On February 14, 2018, the worker requested that Review Office reconsider the WCB's December 15, 2011 decision.
On April 6, 2018, Review Office determined that the worker was not entitled to hearing aids. Review Office found that the worker had no further exposure to noxious workplace noise since 1990 and he had retired in January 2017. The worker underwent a hearing test in February 2018 which indicated his hearing had deteriorated and he required hearing aids. Review Office noted that hearing aids were not required until February 2018. Review Office found that the evidence did not support that the deterioration in the worker's hearing beyond 2011 or the requirement for hearing aids was related to workplace exposure to noxious noise.
On August 23, 2018, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
The worker has an accepted claim for noise-induced hearing loss and is seeking hearing aids related to his hearing loss.
In considering this appeal, the panel is bound by The Workers Compensation Act (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.
Subsection 27(1) of the Act states that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury resulting from an accident.
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's Board of Directors has established WCB Policy 44.20.50.20.01, Hearing Loss (the "Policy") which applies to hearing loss claims arising from long-term exposure to occupational noise that causes hearing loss. Section 7 of the Policy deals with the provision of hearing aids to workers with accepted hearing loss claims and states:
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 and provided a written submission in advance of the appeal hearing. The worker made a presentation at the hearing and responded to questions from the panel.
The worker noted that the December 15, 2011 decision acknowledges exposure to noxious noise levels during his employment at a machine shop from 1971 to 1990. A hearing test in June 2011 showed a hearing loss which warranted the use of hearing aids. Re-testing conducted in October 2011 at the request of the WCB also indicated hearing loss. However, the WCB determined that the worker's hearing loss did not warrant hearing aids at that time.
The worker submitted that the December 15, 2011 and February 15, 2018 decisions to deny his request for hearing aids failed to recognize the hearing loss suffered and the severity of the worker's exposure to high levels of noxious noise in the workplace.
Further audiograms from two separate audiologists, dated February 6, 2018 and August 16, 2018, respectively, had been provided. Reports from each of these audiologists recommended hearing aids for both ears.
In conclusion, the worker noted that most people his age do not require hearing aids, but he does, and he attributes this to prolonged exposure to noxious noise levels from 1971 to 1990 with no hearing protection.
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 hearing aids. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires hearing aids 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 in both ears based on his exposure to noxious levels of noise during his employment from 1971 to 1990.
Based on our review and consideration of all of the information before us, the panel finds that the worker is entitled to hearing aids.
In arriving at that decision, the panel relies on the July 5, 2011 audiogram. While this audiogram was performed after the worker had stopped working in the original machine shop, the panel finds that it provides a reasonable representation of the worker's noise exposure in the workplace. The panel notes that the evidence does not indicate exposure to noxious noise after the worker left that employment, given the nature of his subsequent job duties and his use of hearing protection after 1990. The panel further notes that the WCB ENT consultant relied on the July 5, 2011 audiogram in concluding on September 10, 2011, that the worker had noise-induced hearing loss.
The WCB had the worker's hearing re-tested by a second audiologist on November 30, 2011. The panel notes that the test results on the audiogram performed by the second audiologist on November 30, 2011, are essentially the same as those on the July 5, 2011 audiogram. Both audiologists report that these results show mild high frequency sensorineural or noise-induced hearing loss bilaterally.
The panel notes that while the results of the two 2011 audiograms are the same, the opinions of the two audiologists as to the worker's need for hearing aids differ. In a July 26, 2011 letter to the WCB, the treating audiologist recommended binaural hearing aids for the worker, noting the worker's "high demands listening situations as a salesman" and his difficulty communicating with his clients. The second audiologist, on November 30, 2011, noted that the worker complained of difficulty hearing speech in crowds and in background noise, but stated that his hearing loss did not warrant hearing aids at that time.
In his September 10, 2011 comments the WCB ENT consultant had stated, based on the July 5, 2011 audiogram, that the worker was a "borderline candidate" for bilateral hearing aids at that time. The WCB consultant had indicated that the worker could probably function well without hearing aids. He suggested it might be a good idea to have the worker re-tested and get a further opinion as to the need for hearing aids at that time.
The panel places more weight on the opinion of the treating audiologist than on that of the second audiologist, given the treating audiologist's recognition and consideration of the worker's expressed difficulties performing his job duties as a salesman as a result of his hearing loss. The panel notes the treating audiologist's concern over the worker's ability to function at work is consistent with the worker's evidence at the hearing as to the impact of his hearing loss on his ability to do his job and interact with clients.
Based on the foregoing, and in the particular circumstances of this case, the panel finds that the worker requires hearing aids as a result of his exposure to workplace noise. The panel therefore finds that the worker is entitled to hearing aids.
The worker's appeal is allowed.
Panel Members
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
D. Neal, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of April, 2019