The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to a hearing aid for his right ear. A file review was held on June 26, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a hearing aid for his right ear.

Decision

That the worker is not entitled to a hearing aid for his right ear.

Background

On July 10, 2009, the worker filed a claim with the WCB for noise-induced hearing loss ("NIHL") which he attributed to long-term noise exposure while working for the employer.

Following investigation, the WCB accepted the worker's claim on February 11, 2010, with a 1986 accident date established. It was noted that the worker did not require hearing aids at that time, but if his hearing deteriorated further, he should provide a medical report for further consideration of hearing aids by the WCB.

On April 15, 2010, the worker was seen by an ear, nose and throat ("ENT") specialist, who stated that the worker's assessment on that date "…showed the sensory neural hearing loss on the left side" and that the worker would probably benefit from a hearing aid if his hearing continued to deteriorate. Further information was received from the worker's treating audiologist and his ENT specialist, and by letter dated April 25, 2011, the treating ENT specialist recommended trial of a hearing aid for the worker's left ear. On June 10, 2011, the worker's file was reviewed by a WCB medical advisor, who recommended that a hearing aid be provided for the worker's left ear only. On June 15, 2011, Compensation Services advised the worker that they would provide coverage of a hearing aid for his left ear.

On February 26, 2018, the WCB received a report and audiogram from a hearing centre, indicating that the worker was re-tested, that "…his hearing has dropped in the right ear" and that he would benefit from a hearing aid for that ear also. On March 21, 2018, the WCB contacted the worker to discuss his claim further. The worker advised the WCB that he retired in 2010, shortly after he received his left hearing aid. He said he had noticed a deterioration in his right ear since that time and believed he needed a hearing aid for his right ear also. He confirmed that he had not been involved in any noisy activities outside of work and that the hearing centre had recommended he attend a hearing specialist.

On March 21, 2018, Compensation Services advised the worker that as he retired in 2010 and was no longer exposed to noise in a work environment, any further deterioration of his hearing would not be attributable to work-related noise exposure. Compensation Services advised that they were therefore unable to approve a hearing aid for his right ear.

On April 26, 2018, the worker advised the WCB that he had seen the treating ENT specialist that morning. The worker said the ENT specialist had referred him for an MRI to rule out any other problem and had suggested getting a more thorough hearing test from an audiology specialist. The results of the MRI, which was performed on June 19, 2018, indicated that no significant abnormality was seen. The worker was seen by the audiologist, and on September 7, 2018, the audiologist reported a "mild high frequency sensorineural hearing loss" for the right ear and a "moderate high frequency sensorineural hearing loss" for the left ear, and recommended binaural hearing aids for the worker.

On September 24, 2018, the worker's claim was reviewed by a WCB ENT consultant. The ENT consultant noted that the worker had retired in 2010, and his audiograms from March 2010 and March 2011 indicated normal hearing thresholds in his right ear. The consultant opined, based on those audiograms, that a hearing aid was not needed for the worker's right ear, and any deterioration in his hearing after retirement could not be attributed to occupational noise exposure. His current need for a right ear hearing aid was therefore not due to "occupational noise exposure." On September 25, 2018, Compensation Services advised the worker that his request for a right hearing aid had been denied.

On November 6, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker provided additional information from his treating ENT specialist and treating audiologist to support his belief that the deterioration of the hearing in his right ear began before he retired and his hearing loss was the result of his exposure to noxious noise at work.

On January 3, 2019, Review Office advised the worker that there was no entitlement to a hearing aid for his right ear. Review Office placed weight on the WCB ENT consultant's opinion that the worker's hearing threshold in his right ear was normal when he retired, and any deterioration since that time was not because of occupational noise exposure. Review Office concluded that the worker's need for a hearing aid in his right ear was not work-related as he was no longer exposed to noxious noise in the workplace.

On January 21, 2019, the worker appealed the Review Office decision to the Appeal Commission and a file review 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.

Subsection 27(1) of the Act provides that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury.

WCB Policy 44.20.50.20.02, Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss for claims arising from accidents between May 29, 1985 and March 31, 2000, where the initial decision is made on or after October 1, 1995 and the date of notification is prior to October 1, 2013. The relevant time period for this claim falls between these dates, and as such, the Policy applies to this case.

The Policy states, in part, as follows:

… 

2. For a claim to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half).

… 

5. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker will 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 two comprehensive written submissions in support of his appeal. The worker's position was that his right ear was affected by the noisy work environment he worked in, just as his left ear was, and his claim for a hearing aid for his right ear should also be accepted.

The worker stated that he was employed in an excessively noisy work environment for 34 years, with both ears being exposed to the same noise. He started having some hearing trouble with his left ear first, and it was deemed bad enough for a hearing aid just as he retired. His claim was accepted for a hearing aid for his left ear in 2011, the year after he retired. The worker submitted that both ears were exposed to the same work noise environment, and there was no reason his right ear was not also affected by the excessive workplace noise he experienced.

The worker submitted that while the 2010 and 2011 audiograms indicated that the hearing in his right ear was "within normal limits," the results from those audiograms were at the very bottom end of the normal range. He argued that the results of hearing tests from earlier years were at the very high end of the normal range, and the treating audiologist had stated that this showed a shift in the hearing in his right ear had started while he was still at work in the noisy work environment, and that when compared with previous years, the hearing in his right ear had declined in 2009, and before retirement. The worker submitted that the evidence established that the delay in the hearing loss in his right ear was not as great as it previously seemed, and in fact occurred within a very short period of time after his left ear.

The worker stated that his treating ENT specialist and his audiologist both believe that in all probability, his hearing loss is related to his noisy work environment. He had not been exposed to excessive noise since his retirement, and had no head or hearing trauma or abnormalities. His only noise exposure had been at work. He noted that in his August 7, 2018 report, the treating ENT specialist stated that "There is no further clue about any other possible cause for his hearing loss. Until proven otherwise the hearing loss is from noise exposure at work." The worker further stated that his treating audiologist told him on August 24, 2018, he definitely recommended a hearing aid for his right ear based on the test results, and that he was sure the noticeable hearing loss was due to his previous noisy work environment.

The worker disagreed with the statement that deterioration in hearing after retirement cannot be attributed to occupational noise exposure. The worker stated that his ENT specialist had told him that studies have shown that hearing loss and tinnitus due to excessive work noise can be delayed and appear later, even years later, after there is no more exposure to excessive noise. He said that his treating audiologist had agreed with the ENT specialist that it had been proven that noticeable hearing loss and tinnitus can be delayed and appear even years after working in a noisy work environment.

The worker referred to two online medical articles which he had found and included with his submission, as supporting his position and what his treating healthcare practitioners had stated. He said that the first of those articles indicated that there can be a delay of years in noticeable hearing loss and tinnitus, even after not being exposed to the excessive noise anymore, and the second stated that hearing loss and tinnitus can affect one or both ears, and not necessarily at the same time, with one being even years later.

Employer's Position

The employer was represented by its Workers Compensation Specialist, who provided a written submission in response to the worker's appeal. The employer's position was that they agreed with the WCB decisions that the worker is not entitled to a hearing aid for his right ear.

The employer's representative noted that the worker retired from his position effective July 4, 2009, and not in 2010. The representative submitted that there was no indication of any work-related noise-induced hearing loss in relation to the worker's right ear at that time. Subsequent audiometric assessments on March 16, 2010 and on March 31, 2011 further indicated that the worker's right-sided hearing was within normal limits. By March 2011, the worker had been away from the workplace for 21 months, and all medical indications were that he had no hearing loss issues with his right ear.

The representative submitted it was not until February 26, 2018, nearly nine years after the worker had retired, that reference was made to the worker's hearing having "dropped in the right ear." The representative noted that while the worker's ENT specialist stated, in August 2018, that there were a few studies suggesting that hearing loss and tinnitus can appear years after there is no more noise exposure, the specialist provided no evidence of any studies supporting his comments. The representative further noted that even with reference to such studies, the ENT specialist's opinion was that it was difficult to determine whether the hearing loss was related to work or to presbycusis.

The employer's representative asked that the panel refer to the WCB ENT consultant's September 24, 2018 opinion. The representative submitted that the evidence contained in the audiometric testing on file does not support the development of a work-related right ear hearing loss requiring WCB funding of a hearing aid for the worker's right ear. Rather, it was submitted that any deterioration in the worker's right ear was more likely the result of presbycusis, given it occurred nearly nine years after the worker had been removed from any work-related noise.

Analysis

The issue before the panel is whether or not the worker is entitled to a hearing aid for his right ear. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a noise-induced hearing loss to his right ear due to exposure to high levels of noxious noise during his employment, as set out in the Policy, which was sufficient to warrant a hearing aid for his right ear. The panel is unable to make that finding.

The panel notes that on January 5, 2009, the worker's audiologist stated that the worker had "unilateral hearing loss" in the left ear, and noted a "history of occupational noise exposure: machinery & driving with left window of vehicle open." The treating audiologist further stated at that time that the hearing in the worker's right ear was "within normal limits." On December 3, 2009, a WCB medical advisor reviewed the file and commented, that "A left unilateral hearing loss has been noted on industrial hearing screening since 1986 and confirmed by formal audiological testing in Jan 2009…"

The worker has argued that a noise shift had started to occur and his hearing in his right ear had declined in 2009, as compared to previous years. The panel is unable to accept that argument. The panel carefully reviewed all of the reported results of previous assessments of the worker's hearing between 1986 and 2009 that are on file. The panel notes that the results with respect to the hearing in the worker's right ear are inconsistent and fluctuate throughout this period of time, with the worker's hearing at different levels being sometimes worse and sometimes better than on previous tests. Based on our review of the medical evidence which is before us, the panel is unable to find that there was a significant change or consistent deterioration in the worker's hearing in his right ear due to work-related noise during this period of time.

The panel further notes that reports and audiograms on March 16, 2010 and March 31, 2011 show that the hearing in the worker's right ear was "within normal limits" and there had been no significant change in the right ear since January 5, 2009.

Binaural hearing aids were subsequently recommended by the treating audiologist on September 7, 2018. The worker submitted that the treating ENT specialist believed that his hearing loss was related to his noisy work environment and referred to the specialist's comments on August 7, 2018 that there was "no further clue about any other possible cause" and that "Until proven otherwise the hearing loss is from noise exposure." The panel is unable to place weight on those comments. The panel notes that in his report to the WCB, dated that same day, the treating ENT specialist opined that:

For now I can say that [the worker] has not had any noise exposure since 2010. There is (sic) a few studies suggesting that hearing loss and tinnitus can appear years after there is no noise exposure anymore but it is hard to tell if it is related to aging or not. All I can say is that both ears were exposed to noise that (sic) left more than the right. It is hard to tell right now if the hearing loss on the right side is due partly to noise exposure but it is theoretically possible.

The panel finds that the ENT specialist's comments or opinion as to the cause of the worker's hearing loss in his right ear being partly or possibly due to noise exposure are speculative, and do not meet the standard of a balance of probabilities which applies in this case.

While the worker submitted that his ENT specialist had told him that studies have shown that hearing loss due to excessive work noise can be delayed and appear later, after exposure to such noise had ended, the panel finds that this submission is not supported by the medical reports or other information on file. As indicated above, what the ENT specialist stated in his August 7, 2018 report was that there were "a few studies suggesting" that hearing loss can appear later. The panel notes that no such studies were identified or provided, and the specialist went on to state that it was hard to tell if subsequent hearing loss was related to aging or not. The worker also stated that his treating audiologist agreed with the ENT specialist, but the panel was unable to identify any report or indication from the audiologist to this effect.

The panel is also unable to attach weight to the two online medical articles which were submitted by the worker. The panel notes that both articles are of a very general nature and the panel is unable to find that they support the worker's position.

In conclusion, the panel places weight on the September 24, 2018 opinion of the WCB ENT consultant, who reviewed the worker's file in its entirety, and opined that:

…the worker retired in 2010. The March, 2010 and March 2011 audiograms show normal hearing thresholds in the right ear. Based on these audiograms, a hearing aid is not needed for the right ear. Any deterioration in the hearing after retirement cannot be attributed to occupational noise exposure. Therefore, the current need for a right hearing aid is not on the basis of occupational noise exposure.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a noise-induced hearing loss to his right ear due to exposure to high levels of noxious noise during his employment, as set out in the Policy, which was sufficient to warrant a hearing aid for his right ear.

The worker is therefore not entitled to a hearing aid for his right ear.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of August, 2019