Decision #125/19 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable and the worker is entitled to a permanent partial disability award. A hearing was held on September 10, 2019 to consider the employer's appeal.
Whether or not the claim is acceptable; and
Whether or not the worker is entitled to a permanent partial disability award.
The claim is acceptable; and
The worker is entitled to a permanent partial disability award.
The worker filed a Worker Hearing Loss Report with the WCB on May 28, 2018 reporting hearing loss he attributed to his employment from September 1965 to March 1989 with the employer. The worker noted that a hearing test conducted by the employer during that time indicated he had hearing loss.
In a discussion with the WCB on June 4, 2018, the worker confirmed that in his employment from 1965 to 1989, he was exposed to loud noise for eight hours a day. He further confirmed that he always wore hearing protection when he was exposed to noise. The worker also advised that he had been suffering from tinnitus for the last five to ten years and had mentioned it to his family physician.
The worker underwent audiological testing on July 18, 2017. The audiologist noted a "…mild hearing loss from 250-1000 Hz sloping to a severe hearing loss in the high frequencies" and that the worker's hearing loss was symmetrical and sensorineural.
On July 10, 2018, the employer provided the WCB with an Employer Hearing Loss Report, the worker's audiogram conducted on December 10, 1986, and a noise level report noting the worker would have had exposure to an average noise level of 87 decibels. On July 16, 2018, the WCB advised the worker that while he had been exposed to noise levels over the threshold of 85 decibels, the type of hearing protection he had worn reduced his noise exposure to below the threshold.
The worker advised the WCB that he worked in areas next to "…equipment that was emitting very loud noise levels" and he felt the noise levels provided by the employer did not accurately reflect the levels he was exposed to. On July 31, 2018, the worker clarified with the WCB the locations within the employer's shop he worked in and on the same date, the employer provided the WCB with updated noise levels for those locations. On the basis of this new information, the WCB determined that the worker did meet the threshold for noise exposure for Noise Induced Hearing Loss (NIHL).
A WCB Ear, Nose and Throat ("ENT") consultant reviewed the worker's file and stated on August 14, 2018 that the 1986 audiogram results indicated the worker had NIHL. Based upon the results of the July 18, 2017 audiological test, the WCB ENT consultant calculated that the worker would be entitled to 4.5% permanent partial disability (PPD) rating for his hearing loss. In a memorandum to file dated September 17, 2018, the worker's PPD rating was reduced to 3.17% to account for his ten years' of employment outside of the province with another employer where he was also exposed to noxious noise.
On September 26, 2018, the worker was advised by the WCB that his claim for NIHL was accepted and he was entitled to a 3.17% PPD award for his hearing loss.
The employer requested reconsideration of the WCB's decision to Review Office on November 1, 2018. The employer noted that the worker's PPD rating was reduced based on his exposure to noise during the last ten years of his employment, which occurred in a different province. The employer believed that this later noise exposure caused the worker's hearing loss. The employer noted the worker reported he was exposed to more significant noise with the employer performing job duties during the 1960s and 1970s, as indicated on the December 10, 1986 audiogram. The employer further noted that the worker reported performing the same duties for a different employer in a different province during the last ten years he was working, and that the noise loss indicated on the worker's 2017 audiogram would be more indicative of his hearing loss that occurred after he worked for the employer. The employer also noted that the tinnitus reported by the worker to his family physician occurred after he left his employment with the employer.
Review Office requested the WCB ENT consultant to review the worker's file. On January 3, 2019, the WCB ENT consultant opined that the December 10, 1986 audiogram was "…suggestive of early signs of noise induced hearing loss" and that there was "very slight asymmetry", with the worker's left ear being worse. The WCB ENT consultant further opined that the worker would not have required hearing aids at that time as the hearing loss was very minimal at that time. This information was shared with the parties. The employer provided a response on January 7, 2019.
On January 18, 2019, Review Office determined that the worker's claim was acceptable and he was entitled to a PPD award. Review Office accepted the opinion of the WCB ENT consultant that the worker's December 10, 1986 audiogram indicated early signs of hearing loss as well as the WCB adjudicator's calculation of the worker's noise exposure with hearing protection. Review Office concluded that the worker was exposed to noxious noise, had an audiogram that indicated noise induced hearing loss and therefore, met the threshold for the WCB's noise induced hearing loss policy. Review Office further noted that the earliest record of the worker's NIHL was December 10, 1986 and under the policy, that date is used as the date of accident. Review Office further determined that the worker was entitled to a permanent partial disability award; however, as the audiogram conducted in 1986 was not conducted by a certified audiologist in accordance with the WCB's policy, the worker's audiogram from 2017 was used, with the reduction calculated for the years the worker did not work for the employer.
The employer filed an appeal with the Appeal Commission on February 5, 2019. 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 established by the WCB's Board of Directors.
At the outset, the panel notes that the worker’s claim dates back to 1986; therefore, benefits are to be assessed under the Act as it existed at that time.
Under s 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 to the worker by the WCB.
An accident is defined in s 2(1) of the Act to include conditions in a place where an industrial process, trade, or occupation is carried on, that occasion a disease, and as a result of which a worker is disabled. Section 2(10) of the Act provides that where disability is caused by an industrial disease, the date of the beginning of the disability is deemed to be the date of the accident.
Payment of compensation for permanent partial disability ("PPD") under the Act in effect in 1986 was provided for under s 32(1), as follows:
Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five per cent of his average earnings.
The WCB Policy 126.96.36.199 Noise Induced Hearing Loss (the "NIHL Policy") applies to claims arising from long-term exposure to occupational noise that causes hearing loss, where the date of notification is on or after October 1, 2013. The NIHL Policy sets out that:
1. Noise induced hearing loss occurs gradually -- often over many years -- and most hearing-loss claims do not involve a loss of earnings. For these reasons, it can be difficult to determine when the impairment began. For the purposes of this policy, the date of accident will be:
a. The date a loss of earnings has occurred, or
b. The date of an audiogram which shows evidence of noise-induced hearing loss.
The decision on establishing the date of accident is separate from the decision on whether there is a degree of impairment that warrants a permanent impairment award. Evidence sufficient for determining the date of accident may be insufficient for determining the degree of impairment.
An audiogram used to determine the degree of impairment must be made by a certified audiologist. An audiogram used to determine the date of accident may be performed at a workplace and need not be performed by a certified audiologist.
2. Claims for long-term exposure to hazardous noise may be considered and paid on the basis of a worker's exposure with employers who are or had been registered with the Manitoba WCB.
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 NIHL Policy also sets out that if the WCB determines that the worker has suffered a permanent impairment arising from occupational noise exposure, it is provided for in Schedule B, Impairment of Hearing of WCB Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy"). This Schedule amalgamates all the Impairment of Hearing sections from previous policies and applies to all impairment of hearing ratings or re-ratings conducted on or after July 1, 2016. Pursuant to the PPI Policy, impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body using the appropriate method as set out in the PPI Policy.
The employer appealed the decisions of the Review Office that the worker's claim is acceptable and that the worker is entitled to a permanent partial disability award.
The employer questioned the WCB's reliance upon the 2018 audiological tests, noting that the hearing loss results from the December 10, 1986 audiogram better reflected the worker's actual hearing loss at the time he left employment with this employer in March 1989. The employer noted that the WCB ENT consultant stated that in 1986 the worker did not require hearing aids and that his hearing loss at that time would not have been ratable in terms of a PPD award.
The employer offered that it was unlikely that the worker sustained additional hearing loss between December 1986 and March 1989 and pointed out that the worker himself stated his greatest noise exposure was during the 1960s and 1970s. The employer directed the panel to consider that the worker's noise exposure at his subsequent employer was significant and that the NIHL evidenced in 2018 was more likely the result of noise exposure in the worker's subsequent employment.
The employer commented that it disputed the provision of hearing aids to the worker, noting that these would not have been required in 1986 and therefore should not be provided to the worker as medical aid. Further, the employer stated that the 2017 audiological results should not have been relied upon to determine whether or not the worker was entitled to hearing aids. The panel noted that this determination with respect to medical aid provided has not been appealed to the Review Office and is not a question that the panel has jurisdiction to address.
The worker participated via conference call.
The worker stated that he experienced noise induced hearing loss as a result of his 24 years of employment with this employer and that he should be compensated for the resulting impairment. He stated that hearing protection was not regularly used until 1970. He noted that other employees doing similar work in the same workplace also had made successful claims for NIHL.
The employer is appealing the WCB decision to accept the worker's claim for noise induced hearing loss as well as the determination that the worker is entitled to a PPD award in relation to his accepted hearing loss.
The issues before the panel are whether the claim is acceptable and if so, whether the worker is entitled to a PPD award arising from his claim for noise induced hearing loss.
Is the claim acceptable?
For the employer's appeal to be allowed, the panel must find that the worker did not sustain a loss of hearing due to noise exposure in the workplace. The panel was not able to make this finding.
In order to determine whether the claim is acceptable, the panel must find that the worker's exposure to noise in the workplace was sufficient to cross the threshold set out in the NIHL Policy. The threshold requirement is that a worker must have been 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.
The employer confirmed the nature of the worker's employment between 1965 and 1989 and provided the WCB with a noise level report noting the worker would have been exposed to an average noise level of 87 decibels. The worker advised the WCB that he always wore hearing protection.
Initially, the WCB advised that while he had been exposed to noise levels over the threshold of 85 decibels, with the type of hearing protection he had worn, it reduced his noise exposure to below the threshold. Later, the worker clarified with the WCB the locations within the employer's shop he worked in and on the same date, the employer provided the WCB with updated noise levels for those locations. The WCB then determined based on the new information that the worker did meet the threshold for noise exposure for Noise Induced Hearing Loss (NIHL).
The panel accepts the WCB's determination of the worker's noise exposure levels, and on the basis of this determination, is satisfied that the threshold for noise exposure was met.
Having met the threshold, the panel must determine whether the worker was injured as a result of an accident as defined by the Act. There is evidence that as early as December 10, 1986, the worker was experiencing noise induced hearing loss as a result of the noise exposure levels in his workplace. The employer provided the WCB with a record of the worker's audiogram results taken in the workplace on December 10, 1986. These were reviewed by the WCB ENT consultant who stated in a memorandum dated January 3, 2019 that the results were "…suggestive of early signs of noise induced hearing loss. There is a very slight asymmetry with the left ear being worse."
Under the provisions of the Act, the date of accident is deemed to be the date of the beginning of the disability. The NIHL Policy clarifies that the date of accident is the date of an audiogram which shows evidence of noise-induced hearing loss. Here, that evidence was available through the workplace audiology exam results of December 10, 1986.
The employer conceded to the panel that the worker did experience noise induced hearing loss as a result of noise exposure during the 24 years of his employment.
On a balance of probabilities, the panel determined that the evidence supports that the worker incurred noise induced hearing loss as of December 10, 1986 arising out of his employment. The employer's appeal on this question is therefore denied.
Is the worker entitled to a permanent partial disability award?
For the employer's appeal on this question to succeed, the panel must find that there was not a permanent partial disability resulting from the workplace injury. The panel is not able to make that finding.
The evidence here supports a finding that the worker did have a permanent partial disability as a result of the noise induced hearing loss arising out of his employment. The panel notes that a WCB ENT consultant assessed the worker's entitlement to a PPI award, using the results from the worker's hearing test conducted on July 18, 2017. The results demonstrated hearing loss at high frequencies, consistent with the pattern typical of hearing loss associated with noise exposure.
The July 18, 2017 hearing test was conducted by a certified audiologist in accordance with the NIHL Policy. The panel notes that these were the most recently available results available upon which an assessment for a PPD award could be made. While the employer suggested that the 1986 audiogram results should be used to assess the PPD, the panel notes that that was not a test for that purpose conducted in accordance with the NIHL policy, and in any event, the most current, acceptable test results are to be used for assessment.
The test results, as outlined in the testing audiologist's letter dated June 13, 2018, indicated sensorineural hearing loss consistent with the pattern of hearing loss typical of noise exposure.
These results were reviewed by the WCB ENT consultant on August 14, 2018 and noted to be acceptable for rating purposes. The WCB ENT consultant used the July 18, 2017 audiological results to calculate and recommend a permanent partial disability rating for the worker. In answer to the employer's concern that the worker's hearing loss is also attributable to the noise exposure in his subsequent employment, the panel notes that the WCB took into account the proportionate number of years of noise exposure with each employer, and determined the PPD rating for the worker based on the proportionate exposure with this employer.
On the basis of this evidence, and on the balance of probabilities, the panel accepts the WCB ENT consultant's conclusion that the worker is entitled to an award for a permanent partial disability. The employer's appeal on this question is therefore dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of October, 2019