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 April 30, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on April 26, 2017. The worker reported that he first became aware of a hearing problem in or around 2000. He said his hearing loss came on gradually and the noise at work was continuous. The worker reported that he used hearing protection starting in 1985, when it was available. He attributed his hearing loss to working in close proximity to noisy tools and equipment. He also reported motorcycling a couple of times a week from 2011 to 2016, and right-handed hunting/shooting once or twice a year until 1995 and a few times between 1995 and 2016.

The employer filed an Employer Hearing Loss Report with the WCB on May 26, 2017. The employer noted that the worker had been employed with them since July 1988 and his exposure to noise while he performed his job duties was intermittent. The employer also provided the WCB with copies of the worker's audiograms and audiometric history from 1988 to 2017.

On June 7, 2017, the worker's audiograms were reviewed by the WCB Ear, Nose and Throat (ENT) consultant, who opined that the earliest audiogram to show evidence of noise-induced hearing loss (NIHL) in the worker's left ear was in 1995, and in both ears 2017. The ENT consultant noted that the early onset of left NIHL could be attributed to the worker's history of firearm use, unless there was an occupational explanation.

On July 6, 2017, the WCB's Compensation Services advised the worker that his claim was not acceptable. Compensation Services noted that the employer had a hearing protection program in place since 1985 and the worker had been properly instructed regarding the program. The WCB ENT consultant had opined that the earliest hearing loss in his left ear was evident in 1995 and hearing aids for both ears were not required until 2017. Compensation Services acknowledged that the worker may have been exposed to high levels of noise in the workplace, but noted that file evidence indicated sufficient noise protection was provided which would have reduced the worker's exposure. Compensation Services found that the criteria for noise exposure at or above 85 decibels for the required minimum period of time had not been met.

On July 19, 2017, the worker provided further information, including the names and phone numbers of several co-workers. The WCB gathered additional information from the co-workers and the employer. On September 24, 2017, the worker's claim was reviewed by the WCB ENT consultant, who opined that the only audiogram on file from a certified audiologist was from 2005. That audiogram showed normal hearing in the right ear and NIHL in the left ear. The consultant noted that occupational NIHL is usually bilateral and symmetrical.

On September 27, 2017, Compensation Services advised the worker that following further investigation and review of the information received, there was no change to the earlier decision that his claim was not acceptable.

On October 23, 2017, the WCB was provided with an audiogram dated that same day, which noted the worker had mild sensorineural hearing loss in the right ear and mild to moderately-severe sensorineural hearing loss in the left ear, and recommended hearing aids for both ears. On February 15, 2018, the WCB received a report from an otolaryngologist, who had examined the worker on January 17, 2018 and opined:

[The worker] complains of bilateral hearing loss which is worse on the left. He does have a history of noise exposure. He does think that the noise exposure was somewhat asymmetric with more exposure on the right side. There is no family history of hearing loss or history of ear surgery. He has hunted in the past but nothing since 2001. An audiogram that was submitted shows an asymmetric left sided hearing loss.

On examination, his tympanic membranes and ear canals were normal. The rest of the ENT exam is unremarkable.

I suspect that [the worker] is suffering from a noise-induced hearing loss. I do not think the asymmetry is concerning…

On April 9, 2018, the worker advised the WCB that he felt his asymmetrical hearing loss was related to his employment, as he held a jackhammer at work similar to the way he held a rifle. On April 18, 2018, the worker provided the WCB with a photograph which showed how he would hold the jackhammer.

On May 3, 2018, Compensation Services advised the worker that the further information submitted had been reviewed, but did not warrant a change to their previous decision.

On May 24, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that the otolaryngologist was supportive of a diagnosis of NIHL and that his job duties included using loud tools at shoulder height in an underground location and on work sites where he was exposed to loud noise from equipment and vehicle traffic. On June 25, 2018, the employer's representative provided a submission in support of Compensation Services' decision denying acceptance of the claim, a copy of which was provided to the worker.

On June 28, 2018, Review Office determined that the worker's claim was not acceptable. Review Office accepted and placed weight on the WCB ENT consultant's opinion that the worker's hearing loss was not representative of NIHL. Review Office noted that the worker's first sign of NIHL was in 1995, and affected only his left ear, and that hearing loss in both ears was not found until 2017. Review Office noted that NIHL is typically symmetrical. They acknowledged that the worker was likely exposed to high levels of noise at work, but were of the opinion that the noise the worker was exposed to would likely have affected both ears, and they could not account for the one-sided hearing loss in relation to his work. Review Office found that if noise in the workplace, including the way he held the jackhammer, contributed to the worker's hearing loss, it would have affected his right ear prior to the 2017 diagnosis of NIHL.

On October 29, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and 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.

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, 

(b) any 

(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.

The WCB's Board of Directors has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), which provides, in part, as follows:

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 assisted by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation to the panel. The worker responded to questions from the worker advisor and the panel.

The worker's position was that he suffered a noise-induced hearing loss which was attributable to his job duties and work environment, and his claim is acceptable.

The worker advisor submitted that during the course of the worker's employment, from 1988 to his recent retirement, the worker was required to use numerous power tools underground, including grinders, drills, saws, packers, jackhammers and pneumatic chipping hammers. She submitted that information on file confirmed that hearing protection was not always available in the early years. The worker advisor noted that a co-worker who was exposed to the same noise level and work environment as the worker has an accepted claim with the WCB for NIHL.

It was noted that the otolaryngologist had indicated the worker has bilateral NIHL, worse on the left, and the asymmetric hearing loss was not a concern. The worker advisor stated that file evidence showed the worker had NIHL in his left ear as early as 1995, and an audiologist confirmed the NIHL in 2005. The worker advisor suggested that test results indicate that the right ear was also showing signs of slight hearing loss in 2005.

The worker advisor noted that while the WCB had suggested the worker's motorcycle use may have contributed to his hearing loss, this was unlikely for several reasons, including that the worker did not obtain his motorcycle until approximately 2012. The worker advisor further disagreed with Review Office's indication that the worker's occasional use of a firearm was the cause of his asymmetric NIHL, noting that the worker wore ear plugs when shooting, that he shot a .22 only once or twice a year until 1995 and only a few times after that, and that his hearing continued to decline after he ceased using firearms.

It was submitted that the way in which the worker held pneumatic tools, in particular a pneumatic chipping hammer or jackhammer, would have resulted in his left ear having greater exposure than his right. The worker advisor referred to a medical article provided in advance of the hearing, which explained that in some industrial settings, depending on the way a worker holds the power tool, one ear is exposed to more sound than the other. One industry where asymmetrical NIHL had been found was where workers were using a rivet gun, which was the same concept as shooting a firearm.

The worker advisor noted that a rivet gun is similar to a chipping gun, in that they are both pneumatic hammers, similar in design and held in a similar fashion. It was submitted that the worker's positioning when he held the pneumatic chipping hammer or gun would cause his left ear to have greater exposure than his right. The exposure to one pneumatic tool alone would cause hearing damage in less than 94 seconds of daily exposure without hearing protection. Even with hearing protection and using a conservative estimate of the noise level of the tool, the exposure from the chipping hammer alone would cause hearing damage on daily exposure of 15 minutes.

The worker advisor noted that the WCB ENT consultant indicated that the early onset of left NIHL could be attributed to the worker's history of right-handed firearm use, "unless there is an occupational explanation." She submitted that in this case, there is an occupational explanation in the pneumatic chipping hammer.

The worker advisor submitted that there were other sources of asymmetrical noise exposure, including that the worker was also required to operate vehicles at the worksite with the window of the cab open, and to turn and look over his right shoulder while operating the vehicles in reverse, resulting in increased exposure to his left ear. The worker advisor referred to indications in a training article that the walls and ceilings in an underground environment can increase noise levels near the worker because of reflection. The worker advisor submitted that working underground with co-workers operating pneumatic and power tools would create reflected noise, and it was not possible to rule this out as contributing to the asymmetry in the worker's NIHL.

The worker advisor further submitted that hearing protection is not always effective. A conservative estimate of the protection afforded by the ear plugs which the worker used would have reduced his noise exposure using the chipping hammer to 100 decibels, which did not take into account any reflected noise or any other machines working in the underground environment at the time.

Referring to further medical articles provided in advance of the hearing, the worker advisor submitted that medical studies have determined that asymmetrical hearing loss can also occur due to genetic or anatomical differences. The worker advisor submitted that extensive studies conclude that asymmetric hearing loss can and does occur in individuals with symmetric noise exposure, with men's left ears being more susceptible to hearing loss resulting from noise.

The worker advisor submitted that the wording of the Policy is mandatory, and stated that a claim for noise-induced hearing loss "is accepted" when a worker was exposed to hazardous noise at work at the specified levels for the required exposure time. The worker advisor submitted that these criteria have been met in the worker's case and his claim is acceptable.

Finally, the worker advisor submitted that if the panel could not find the worker's left NIHL was attributable to work, they would request that his right NIHL be considered separately.

Employer's Position

The employer was represented by an advocate and by its Disability Management Case Officer. The employer's advocate provided a written submission in advance of the hearing, and made an oral presentation to the panel.

The employer's position was that the worker's hearing loss is not attributable to noxious noise exposure at work and his claim is not acceptable.

The employer's advocate noted that hearing tests were administered regularly and confirmed that the worker's hearing loss was unilateral for over 20 years. His left ear showed NIHL as far back as 1995, becoming moderately severe with the passage of time, but his right ear was normal until 2017. It was submitted that this significant gap of over 20 years could not be explained in relation to employment activities.

The advocate asked that the panel accept the WCB ENT consultant's explanation that the early onset of left NIHL could be attributed to the worker's history of right-handed firearm use, unless these was an occupational explanation, and the consultant's subsequent conclusion, after reviewing the 2005 audiogram by a certified audiologist, that the "unilateral NIHL can be explained on the basis of the worker's right-handed firearm use." The employer's position was that there is no occupational explanation.

The advocate submitted that the WCB ENT consultant's opinion that occupational NIHL is normally bilateral and symmetrical, and that shooting is probably the cause of the worker's asymmetrical hearing loss, is corroborated by accepted medical wisdom.

The employer's advocate noted that the employer had tested the noise emitted by the hydraulic jackhammer, and found it had a highest decibel rating of 107 in operation. The noise levels from the other electric tools were between 80 and 90 decibels. With hearing protection, much of the noise exposure would be reduced to below the 85 decibel level.

The employer's advocate noted the worker would have operated the jackhammer or chipping gun at various levels in the course of his work, not just at shoulder level as he would a gun, and that in any event, a jackhammer was not a gun. The advocate noted that most of the noise from the jackhammer is emitted from the end where the point hits the surface being hammered, and both ears would be affected fairly equally as with any noise from hand tools.

The advocate submitted that in the work environment, especially indoors, reverberation would have produced essentially equal exposure to noise for both ears from the jackhammer and other tools. If the jackhammer, chipping gun or any other tools were the cause of his hearing loss, one would have expected that the noise would have affected both of his ears relatively equally.

The advocate noted that the employer was not disputing that noise from these tools was loud, or that the machinery and equipment could produce noxious noise. She noted that is why the employer has a mandatory hearing protection program, which is communicated and enforced. The issue in this case, however, was not whether the worker wore hearing protection as documented on file. She submitted that exposure to intermittent and variable noise would be considerably reduced through the use of hearing protection.

The employer's advocate stated that the crux of the issue in this case is that the worker had unilateral (as opposed to asymmetrical) NIHL, in his left ear only, for over two decades before his right ear was affected. In the employer's view, this could not be explained on the basis of his employment activities. The use of equipment, whether the noise was reflected or on his right or left side, would have affected both ears, maybe slightly asymmetrically, but not just one or the other.

The employer's advocate submitted that although the worker advisor emphasized the wording under the Policy that a claim "is accepted" for NIHL if the decibel levels are over 85, there is another piece under the Policy, namely that the medical evidence must also support that there is occupational NIHL. The employer did not believe there was.

In conclusion, the advocate submitted that the worker's asymmetrical hearing loss was not due to occupational noise exposure, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is claim acceptability. The claim has been advanced on the basis of long-term exposure to noxious levels of occupational noise resulting in noise-induced hearing loss. For the worker's appeal to be successful, the panel must find that the worker suffered NIHL during the course of his employment due to exposure to levels of noxious noise as set out in the Policy. The panel is unable to make that finding, for the reasons that follow.

The Policy provides that in order to establish NIHL, a 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 8 hours of exposure on a daily basis. For every increase in noise level of 3 decibels, the required exposure time is reduced by half. This is the threshold that must be met. Based on the evidence before us, the panel is not satisfied that this noise threshold has been met.

Medical information on file shows that there is a pronounced asymmetry in the worker's hearing loss. The worker's hearing loss started unilaterally in his left ear, in 1995, and it was not until 2017, more than 20 years later, that signs of NIHL was recognized in the worker's right ear. The panel notes that this asymmetry in the worker's hearing loss did not change over the years.

In response to questions from the worker advisor at the hearing, the worker described his duties, the tools he used at work and the work environment. The panel also questioned the worker at considerable length with respect to his job duties and the extent of his exposure to noxious noise levels over time. Having carefully reviewed the evidence on file, and as presented at the hearing, the panel is unable to relate the worker's hearing loss to his job duties as described.

In arriving at this conclusion, the panel notes that information on file shows that the worker was working in a position above ground or overhead from 1988 to 1999. At the hearing, the worker said that they would be moving around and could complete six to eight projects in a day. Several steps were involved in completing each project, some of which would involve the use of tools, which included jackhammers, chipping guns and quickie saws. He worked outdoors in the summer, and could go to other positions during the rest of the year, unless he was bumped, in which case he would be off work for about three months. The worker said he would wear earplugs for hearing protection, but they were not always available during this period of time. Audiometric results identified a hearing loss in the worker's left ear only in 1995.

In or around 2000, the worker started working underground, which was described as being generally worse in terms of the noise levels and exposure. The panel notes that by this time, a significant hearing loss in the worker's left ear had already been established. The worker described his work underground, where he worked on projects which would take an average of approximately six weeks to complete. The length of time would vary, depending on a number of factors.

The worker indicated that there were several stages to the projects, which involved dismantling structures and rebuilding them. The work, as described, was very cyclical and involved a variety of different tasks. The worker could be working at a particular task all day long for a week, before moving on to the next task or stage. In the dismantling stage, the worker would be jackhammering, but not continuously, and he would be moving around and working from top to bottom when working on a wall. The worker would usually be working with a co-worker, in fairly close proximity, but their positioning would vary and the co-worker could be on his right or left or elsewhere. The worker said he always had hearing protection after 2003, and his underground job did not change but was basically the same throughout.

The panel understands that NIHL is normally bilateral and symmetric. Although the worker and worker advisor suggested, and provided information supporting, possible explanations for the worker's asymmetrical hearing loss, the panel finds that these do not explain the extreme differences between the worker's right and left ears.

The worker relied heavily on the use of a jackhammer or chipping hammer or gun as causing or contributing to his hearing loss. The panel notes, however, that the evidence does not support that there was a deterioration in the worker's hearing due to the use of these tools. The worker acknowledged at the hearing that he would not always be holding the jackhammer at shoulder height, but would be changing positions and working with the hammer at various levels and in various positions. The panel is further of the view that the worker's use of the jackhammer was not like using a firearm, in that the peak sound would have been further from away his ears than with a firearm and the sound would more likely have had the same effect, if any, on both ears.

With respect to the hearing loss in the worker's right ear which was first noticed in 2017, the panel notes the worker indicated at the hearing that prior to that time, they had changed to using electric tools, which were much quieter.

The panel accepts that the worker worked in a very loud environment. Based on our review of all of the information which is before us, however, the panel is unable to find that the worker's bilateral or left or right hearing loss was caused or changed because of his job duties.

As a result, the panel finds, on a balance of probabilities, that the worker did not suffer a noise-induced hearing loss during the course of his employment due to exposure to levels of noxious noise as set out in the Policy. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of June, 2019