Decision #54/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on April 25, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Hearing Loss Report with the WCB on September 1, 2015. The worker had been employed by the same employer in a number of different positions, most of which involved working in close proximity to machinery, at two different work sites. He reported a gradual hearing loss that he first became aware of after an annual hearing test conducted at his place of employment on May 26, 2005. He had been employed with the same employer for 39 years and, during 15 of those years, he was also a volunteer firefighter with a local municipality. The worker noted that ear protection had been provided at work since approximately 1987. An August 24, 2015 audiogram submitted by the worker to the WCB noted:
[The worker] was seen for audiologic evaluation August 24th, 2015. [The worker] reported significant difficulty understanding speech in all situations, especially while in groups of people or in the presence of background noise. He indicated he felt his left ear was worse than his right. [The worker] reported high pitched tinnitus bilaterally. He did not indicate any pain in the ears, dizziness or nausea.
[The worker] reported being exposed to firearm noise, shooting left-handed. In addition, he indicated being exposed to industrial noise…while working at [Employer] for 39 years…
The audiogram showed asymmetric mild sensory hearing loss at and above 3,000Hz in the right ear and mild to moderate sensory hearing loss at or above 3,000Hz in the left ear, indicating that the loss in the left ear was worse than the right.
In an initial discussion with his WCB case manager on September 9, 2015, the worker confirmed his employment details as set out on the Hearing Loss Report. He advised that his non-employment related noise exposure activities included snowmobiling, riding a motorcycle, farming, use of power tools for home renovations and left-handed firearm use.
On September 24, 2015, the employer provided the WCB with an Employer Hearing Loss Report. The employer confirmed the worker had been employed with them since 1978 in various positions and that hearing tests had been conducted annually. The employer also provided the WCB with a copy of a notice from the third party company which conducted the annual hearing test dated May 26, 2005, indicating that the worker had changes in his hearing sensitivity "which are typical of noise induced hearing loss." The employer also provided the WCB with copies of noise level testing done at their premises in 2006 and 2010. On November 19, 2015, the employer confirmed that the hearing protection used by the worker was regular foam ear plugs with a noise reduction rating (NRR) of 29 dBa.
The worker was advised by the WCB on December 3, 2015 that his claim was not acceptable. The WCB advised that noise-induced hearing loss is normally bilateral and symmetrical however, the audiometric testing results for the worker from 1987 to 2015 noted that he had an asymmetrical hearing loss since 1987, with his left ear being slightly worse. The testing also noted that the worker's hearing in his right ear was within normal range up until 2004. The worker could not provide any work-related explanation for the asymmetrical loss. Further, the WCB noted that the worker's 2005 audiogram noted a significant shift in the worker's hearing and that the 2015 audiogram noted loss of hearing indicative of noise exposure; however both the worker and the employer confirmed the worker had worn ear protection since 1987. The WCB also noted that the hearing protection provided the worker with an NRR 29 and, based on the information received from the employer, the average noise exposure for the worker would have been 77.50 dBA, well below the threshold noted in the WCB policy of 85 dBA for eight hours a day, over a two year period.
On December 3, 2015, in a discussion with his WCB case manager, the worker advised that he disagreed with the decision that his claim was not acceptable. He advised that he was exposed to noxious noise in his maintenance position, which included repairing and maintaining very loud equipment. He requested that the WCB review their decision.
The WCB advised the worker on April 4, 2016, that they had conducted a further investigation into his claim, including gathering specific information on his job duties with the employer, together with information on his volunteer firefighter position. However, the earlier decision that his claim was not acceptable was upheld.
On November 23, 2017, the worker's representative asked the WCB to reconsider their decision on the worker's claim. The worker's representative noted that the WCB relied on information from an audiometric technician who noted incorrectly in 1994 that the worker was a right-handed firearm user; and further that since the worker was a right-handed firearm user this would account for his hearing loss being greater in his left ear. The worker's representative also noted that the worker was not provided with hearing protection until after 1987, meaning he was exposed to noxious noise from approximately 1976, when he began his employment, until 1987, when the hearing protection program began and therefore, he met the criteria under the WCB policy for noise-induced hearing loss.
The worker was advised on January 23, 2018, that his representative's request to reconsider his claim had been reviewed but there was no change to the earlier decision that his claim was not acceptable.
The worker's representative requested reconsideration of the WCB's decision to Review Office on April 12, 2018. The worker's representative provided that the worker was left-hand dominant and worked with "his left side and left ear facing loud industrial machinery…" which accounted for the worker's asymmetrical hearing loss. The worker's representative also restated that the WCB had considered incorrect information, having been misinformed that the worker was a right-handed firearm user, which explained a non-work related cause for the worker's asymmetric loss. The worker's representative further provided that the worker met the criteria for noise-induced hearing loss as he had been subjected to high levels of industrial noise for over a ten year period prior to his employer offering hearing protection.
On June 7, 2018, Review Office determined that the worker's claim was not acceptable. The worker's representative took the position that the worker was exposed to noxious noise, sufficient to cause hearing loss. They further provided that the worker was exposed to those levels prior to the start of the employer's hearing loss program, which resulted in the worker's hearing loss. Review Office did not accept this position. Review Office noted that the worker's hearing loss test results were provided on October 21, 2015 and a review of those results indicated no record of noise-induced hearing loss until 2005, with the test results from the commencement of the employer's hearing testing program in 1987 showing no indication of hearing loss. Review Office further determined that the information provided on the noise levels for the various areas of the worker's employment, with the rating from the worker's hearing protection taken into account, fell below the average of 85 decibels required under the WCB policy. Accordingly, Review Office found that the worker was not exposed to noxious noise above 85 decibels on a daily basis and his claim was not acceptable.
The worker's representative filed an appeal with the Appeal Commission on October 9, 2018. An oral hearing was arranged.
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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
WCB Policy 18.104.22.168, 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.
The worker was represented at the hearing by legal counsel and supported by his wife and by his union representative.
In brief, the worker's position on appeal was that the Review Office did not take into account his long-term exposure to noxious noise levels during the course of his employment. The worker confirmed that his claim was for hearing loss in both ears.
The worker, with the assistance of counsel, provided a detailed outline of his work duties during the years 1976 to 2017, including the machinery with which he worked, the noise levels of the machinery and his location and movements in relation to the machinery. Although the worker could not identify a particular cause or machine, he submitted that a multitude of job duties involving loud machinery and rotating his body so that his left ear was closer to the machinery, caused his left ear to be predominantly exposed to noxious noise which was the cause of his left ear hearing loss.
The worker's employer did not participate in the hearing.
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 policy. 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.
The panel accepted that the worker suffered noise induced hearing loss but was unable to find that it was related to the worker’s workplace.
The hearing tests and reports submitted to the panel identify when the worker’s hearing loss occurred and the panel notes that the worker’s hearing deteriorated in each ear at different rates and times.
With respect to the worker’s right ear, there is no evidence of hearing loss pre-1987. Although he may have been exposed to noxious noise in the workplace during that period, when the worker changed work sites and hearing protection was instituted in 1987 there was no demonstrated noise-induced hearing loss. The worker did not report right ear hearing loss until 1996, nine years after hearing protection was instituted. The worker confirmed that he complied with the workplace requirement of wearing hearing protection post-1987 and ear protection post-1987 took him below the required exposure level stipulated in the policy.
In the panel’s view, any right-ear hearing loss pre-1987 would have manifested itself proximate in time to any noxious noise. There was no evidence of right ear hearing loss post-1987 which would have been caused by exposure to noxious noise in the workplace. Accordingly, the panel was unable to conclude that the worker’s right side hearing loss was related to the worker’s employment.
With respect to the worker’s left ear, the evidence supported a finding of left ear noise induced hearing loss as early as 1987. While the worker attributed his left ear hearing loss to multiple job duties which caused him to rotate his body, causing his left ear to be predominantly exposed to loud machinery, the panel carefully reviewed the worker's job duties and noted that the worker changed body position depending on the tasks he was undertaking. The panel does not accept that the noise of the machinery would have been the cause of the deterioration of hearing in his left ear which did not, at the same time, occur in his right ear. There was insufficient evidence of unique left-sided noise to account for the degree of asymmetry in the worker’s hearing loss.
The panel also places weight on the fact that the left ear deterioration remained essentially stable until after 1999, when the rate of deterioration progressed, without evidence supporting a connection to job duties, specifically exposure to workplace noxious noise. The worker’s hearing progressively deteriorated after 2000 but hearing protection was in place, thus the deterioration could not be attributed to noxious noise in the workplace. It is also noted that the worker said his hearing loss occurred from 2007 onward. The worker could not identify a particular cause for his hearing loss at that time.
If the worker suffered reasonably equal bilateral hearing loss, it may be a logical conclusion that his hearing loss was work-related, but the worker had significantly better hearing in his right ear. A different degree of exposure to the worker’s right and left ears doesn’t explain the difference in hearing loss between the two ears. There was insufficient evidence of asymmetrical loss, given that his duties involved left and right movements around the machinery.
The panel notes that the average noise exposure for the worker following 1987 when hearing protection was provided was well below the threshold noted in the policy.
Counsel for the worker pointed the panel to a decision relating to an individual who suffered from Hepatitis C and submitted that this decision was instructive as to how the panel ought to view this worker’s claim. However, the panel distinguished the Hepatitis C claim from the within claim on the basis that Hepatitis C can have a delayed onset, which is not the case with hearing loss, thus that decision is not helpful in determining the outcome of this appeal.
The panel did not take into consideration the question of the worker's right or left-handed use of a firearm, given that it is irrelevant to the question as to whether the worker suffered a work induced hearing loss.
The panel therefore finds that, based on the evidence and on a balance of probabilities, the requirements of the 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 and the appeal is dismissed.
K. Gilson, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of May, 2019