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 May 8, 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, a grader operator, filed a Worker Hearing Loss Report with the WCB on August 1, 2017. The worker reported that he first became aware of a hearing problem in 1980. He attributed his hearing loss to being exposed to noxious noise 10 to 12 hours per day during his employment with the employer from 1973 to 1996. The worker said his hearing loss came on gradually and the noise at work was continuous. He noted that no ear protection was ever provided by his employer. The worker said he had an injury to his left ear and surgery on that ear in or around 1980.

A copy of a July 17, 2017 audiogram was provided to the WCB on August 18, 2017. The audiologist reported that:

Pure tone test results revealed a moderately-severe to severe, mixed hearing loss for the right ear and a severe to profound, mixed hearing loss for the left ear. Cursory otoscopy revealed perforation of the left tympanic membrane, and clear drainage was visualized in the left ear canal at the time of the assessment.

On August 23, 2017, the worker's family physician reported to the WCB that the worker's previous audiology examination was performed in 2010. The family physician further advised that:

I do not have records from his remote surgery on his ears in the 1980s except for that he had left ear surgery in 1980 and that it was an unsuccessful tympanoplasty.

The family physician also provided the WCB with a June 24, 2010 report from an ear, nose and throat (ENT) specialist who had examined the worker. The ENT specialist noted that the worker "…has a long history of left sided hearing loss and intermittent otorrhea. He underwent what sounds like a tympanoplasty many years ago which was unsuccessful." The ENT specialist went on to opine that:

…his recent audiogram…reveals a mild to moderately severe sensorineural hearing loss on the right and a moderate to moderately severe mixed but primarily sensorineural hearing loss on the left.

On September 2, 2017, the worker's file was reviewed by the WCB ENT consultant, who opined:

The worker underwent a left tympanoplasty in the 1980's which was not successful. He still has a tympanic membrane perforation with chronic infection.

The above audiogram shows a mixed flat loss in both ears with a very sizable conductive component on the left side. The configuration of this audiogram is not typical or diagnostic of NIHL [noise induced hearing loss].

On September 7, 2017, the WCB advised the worker that his claim was not acceptable. The WCB confirmed that the information collected indicated that the worker was exposed to noxious noise levels for a sufficient period of time to meet the threshold for noise induced hearing loss. Medical information and testing results showed, however, that the worker's hearing loss was not consistent with noise exposure. As such, the WCB was not able to relate the worker's hearing loss to his employment.

On September 20, 2017, the worker requested that Review Office reconsider the WCB's decision, as he believed his claim should be accepted and the hearing aids he required should be paid for by the WCB.

On October 18, 2017, Review Office determined that the worker's claim was not acceptable. Review Office noted that the medical evidence indicated the worker had a long history of difficulties with his ears, including an operation on his left ear in the 1980s. It was also noted that the worker had experienced infections and currently had a perforated membrane in his left ear with discharge.

Review Office found that the worker's hearing tests showed he had profound hearing loss in keeping with the noted difficulties and findings which represented presbycusis or age-related hearing loss. Review Office noted that the testing information did not provide findings consistent with noise induced hearing loss. Review Office was therefore unable to establish that the worker suffered an injury arising out of and in the course of his work.

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.

"Occupational disease" is defined, in part, as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; 

(b) peculiar to the particular employment; or… but does not include 

(c) an ordinary disease of life…

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 an advocate and accompanied at the hearing by three family members, all of whom participated in the hearing by teleconference. The worker was also provided with the services of an interpreter, and responded to questions from the panel with the assistance of the interpreter.

The worker's position was that his work as a grader operator from 1973 to 1996 caused or contributed to his hearing loss, and his claim should be accepted.

It was submitted that the employer and company had admitted that the worker's hearing loss resulted from his operating a grader for many years. The company was young, and no safety equipment, ear muffs or plugs were utilized during this period of time. The worker operated the same grader throughout and it was very loud.

It was submitted that the worker's hearing loss had to have come from operating the grader, as this was the only place he worked and the only loud noise he heard. He worked all year-round, five days a week, on road maintenance and construction. It was noted that the worker had only recently been getting hearing tests done. It was submitted, however, that more testing should have been done earlier.

Employer's Position

The employer did not participate in the appeal.

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 sustained 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 panel is unable to make that finding.

The Policy provides that not all hearing loss is caused by exposure to noise at work. The Policy further sets out the criteria which are to be met in order to establish that a noise induced hearing loss occurred at work.

Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel accepts that the worker has a hearing loss, but is unable to connect the worker's hearing loss to his employment.

In this regard, the panel is not satisfied, based on the available evidence, that the worker's hearing loss and test results are consistent with noise induced hearing loss.

The panel notes that information on file shows that a medical condition was diagnosed in the worker's left ear in 1980 and the worker still has a tympanic membrane perforation with chronic infection. The panel has little or no information which would enable us to determine the effect of that condition on the worker's hearing. In response to questions from the panel at the hearing, the worker stated that there was nothing unusual that happened at work in 1980, no explosion or big bang or anything like that, which caused him to go to the doctor and have the surgery on his left ear. There is also no claim filed or accepted for a work-related 1980 hearing loss. In the circumstances, the panel is unable to identify a work-related source for the worker's left ear condition or ongoing difficulties.

The panel places significant weight on the September 2, 2017 report of the WCB ENT consultant, who reviewed the worker's file and medical reports, and noted that the July 17, 2017 audiogram showed "a mixed flat loss in both ears with a very sizable conductive component on the left side." The ENT consultant further opined that "The configuration of this audiogram is not typical or diagnostic of NIHL."

It is the panel's understanding that test results which indicate noise induced hearing loss have a unique "reverse checkmark" type of configuration which is characteristic of that kind of hearing loss. The panel notes that such a pattern does not appear in the worker's July 17, 2017 audiogram. Rather, the test results show a generally flattened type of configuration, which represents a very different kind of hearing loss that the panel is unable to relate to the worker's employment.

The panel notes that the July 17, 2017 audiogram is the only audiogram on file. The evidence at the hearing was that the worker did not have any hearing tests done before he left work in 1996, and that he had only recently been getting hearing tests done.

The panel also understands that once a worker is removed from noxious levels of occupational noise, the damage to the hearing to that point in time would not deteriorate further. The worker's evidence at the hearing was that he was having trouble hearing at work, and his hearing got worse after he left work in 1996. In the panel's view, this information regarding ongoing deterioration further supports that the worker's hearing loss and ongoing hearing problems are not related to the worker's employment.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain 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 panel therefore finds that the worker's claim is 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 5th day of July, 2019