Decision #156/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his hearing loss claim was not acceptable. A hearing was held on October 31, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On February 28, 2018, the worker filed a claim with the WCB for noise-induced hearing loss ("NIHL"). The worker attributed his hearing loss to his 38-year employment with the employer. The worker stated that he first became aware of a hearing problem in the previous 10 or 12 years. He said his hearing loss came on gradually and the noise at work was continuous. He further stated that he had worn hearing protection for the last 13 or 14 years of his employment.
An audiogram dated February 23, 2018 indicated "…a sloping normal to moderately-severe sensorineural hearing loss from low to high frequencies on the right ear" and "…a sloping normal to severe sensorineural hearing loss from low to high frequencies" on the left ear. Hearing aids were recommended for both of the worker's ears.
On March 7, 2018, the worker spoke with a WCB adjudicator and confirmed that his hearing difficulties had gradually become more noticeable in the last 10 to 12 years, and he had intermittent ringing in both of his ears. He advised that he retired in 2013. He noted that at the worksite, he worked outside in the yard with large machinery. He said he was exposed to loud noise both outside in the yard and when he went indoors, where there was a welding shop, paint bay and mechanic shop. The worker also advised that hearing protection in the form of foam ear plugs became available in the mid-1980s, which he would wear most of the time. He said he later purchased his own hearing protection in the form of ear muffs, but would remove those to speak to people.
On May 10, 2018, the employer advised the WCB that the worker's job duties in the yard would be operating large equipment, but the decibel rating inside a closed cab on the machinery he would be operating would be less than 85 decibels. The employer stated that if the worker went in the shop, he would not be there for multiple hours but would be minimally in and out. The employer confirmed that hearing protection in the form of ear plugs was available prior to 2008, and was mandatory after 2008 for all shop employees, including a person entering the shop.
On May 21, 2018, a WCB ear, nose and throat ("ENT") consultant reviewed audiogram records on file dated from 1993 to 2014 and noted that:
The earliest audiogram to show signs of NIHL in the left ear is dated 1993.
The earliest audiogram to show signs of NIHL in both ears is dated 1995.
On June 15, 2018, the WCB's Compensation Services advised the worker that his claim was not acceptable. The WCB advised that while the worker may have been exposed to noise during his employment, the available information did not establish that he had work-related exposure to noxious noise at or above 85 decibels for a sufficient period of time to meet the WCB threshold requirement for NIHL.
On July 6, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted further information with his request, including a 2004 hearing test report, a copy of his February 23, 2018 audiogram and copies of certificates from safety courses he had completed. On July 9, 2018, Review Office returned the worker's file to Compensation Services for further review and investigation.
On August 28, 2018, the WCB spoke to two of the worker's co-workers. One co-worker estimated the worker would have spent approximately 10% of his work day in the shop and 90% outside, but could not comment on whether the worker wore hearing protection. The second co-worker advised that he was currently working in the same position as the worker had done, and estimated that he spent 60 to 70% of his time in the shop as compared to outside.
On September 10, 2018, the employer provided the WCB with a job description for the worker's position as well as information on noise testing conducted at the worksite in 2005 and 2008. In a memorandum to file dated October 6, 2018, the WCB adjudicator noted that based on the job description provided for the worker's position, the worker would have spent limited time in the shop, where the average noise levels ranged from 77.9 to 92.5 decibels. The adjudicator noted that if the worker spent one hour per day in the shop, he would have to have been exposed to a minimum of 94 decibels for the NIHL threshold to be met.
On October 9, 2018, Compensation Services advised the worker that after a review of the information provided and further investigation, their earlier decision to disallow the claim remained unchanged. On November 21, 2018, the worker again requested that Review Office reconsider Compensation Services' decision, noting that the job description was totally different back to 1977, and had in fact changed a lot since his retirement, and pointing out that there was also evidence of hearing loss in the audiograms from 2004.
On January 8, 2019, Review Office determined that the worker's claim was not acceptable. Review Office noted the WCB ENT consultant's opinion that the worker first showed signs of hearing loss in his left ear in 1993, and in both ears in 1995. Review Office stated that they could not account for the asymmetrical hearing loss due to work, as occupational hearing loss is usually symmetrical. Review Office noted that the worker performed most of his job duties in the yard and would operate large equipment inside a closed cab with a decibel rating below 85 decibels.
Review Office further noted that the worker indicated he was exposed to loud noise inside the shop, in the welding, paint and mechanic areas. An ambient noise level assessment report provided by the employer indicated the noise levels in the shops were between 70 and 89 decibels, the high end sample having been taken with machinery running. Review Office placed weight on the evidence of the co-worker who had worked directly with the worker since 1995, that the worker would have spent 10% of his work day inside and 90% outside, and found that although the worker was exposed to noise at work, his noise exposure was intermittent. Review Office determined the evidence did not establish that the threshold for NIHL was met.
On February 11, 2019, the worker appealed the Review Office decision to the Appeal Commission and 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.
"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 126.96.36.199, 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.
The worker was represented by a worker advisor and was accompanied by his spouse at the hearing. The worker's representative provided a written submission in advance of the hearing, and made an oral presentation to the panel. The worker responded to questions from his representative and from the panel.
The worker's position was that he suffered bilateral noise-induced hearing loss as a result of his exposure to noxious noise in the workplace and his claim is acceptable.
The worker's representative noted that the worker started his job with the employer in 1977. He spent his day working on heavy equipment, including bulldozers, moving it around the yard or to and from indoor shop areas, such as painting, welding and motor bays. The worker would also be required to move and deliver supplies and parts with a forklift, and clear snow and start heavy diesel equipment in winter.
The worker's representative stated that a hearing test in 1993 showed noise-induced hearing loss in the worker's left ear and indicated "no" with respect to the type of hearing protection used. The next test, in 1995, showed that the worker had noise-induced hearing loss in his right ear as well.
The worker's representative submitted that the worker's hearing loss predated the noise level studies or assessments provided by the employer by a least a decade and those assessments did not reflect the noxious noise the worker would have been exposed to between 1977 and 1993. The representative submitted that the noise levels in the workplace would have been higher in the 1970s, due to lesser industry standards and no hearing protection.
The worker's representative noted that there were no noise studies from the time the worker first registered a hearing loss; with respect to the machines or equipment he operated; or in the outdoor area where he performed his work duties. She submitted that the only information on noise proximate to the time the worker suffered his NIHL was an accepted claim from the 1980s for a salesperson, where the WCB confirmed noise exposure of 100 to 103 decibels in the shop and confirmed that seven to fifteen minutes of this exposure met the criteria of the Policy. It was submitted that the salesperson in that case would have had less noise exposure than the worker, as the majority of the salesperson's duties were required on the sales floor or in the employer's office area.
The worker's representative also noted that an occupational safety and health study she had provided in advance of the hearing highlighted how heavy equipment, especially bulldozers, had less noise protection when they were manufactured in the 1960s and 1970s. The representative noted that the noise generated from these machines was between 104 and 108 decibels in this study, and submitted that this would reflect the levels of noise from the equipment the worker would have been moving around at work in the early years.
The worker's representative submitted the WCB had confirmed, based on the lowest of the gathered estimates, that the worker would have been in the shop for a minimum of one hour each day, where he would have been exposed to 100 to 103 decibels. She submitted that the worker disputed this lower estimate of one hour per day, noting that he and his co-worker with the same job title felt they were in the shop several hours per day, but regardless of that, the one hour per day met the standard of the Policy.
It was further submitted that the worker had not been provided with hearing protection early in his career, and that it was not used regularly until in or around 2004, by which time he already had hearing loss.
With respect to the WCB's reference to an asymmetrical hearing loss, the worker's representative noted that the worker had bilateral noise-induced hearing loss in 1995, with his left ear registering a NIHL on the prior test in 1993. The worker's representative submitted that the amount of time the worker had unilateral hearing loss was short; it may have been only a matter of months and was not significant. There was no hearing test in 1994, and nothing to show that the worker would not have registered a hearing loss in his right ear in 1994 as well. Referring to medical literature she had also provided in advance of the hearing, the worker's representative noted other possible explanations for the worker's asymmetrical noise exposure and hearing loss.
The employer did not participate in the appeal.
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, on a balance of probabilities, 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 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.
At the hearing, the panel questioned the worker at length with respect to the duties he performed over the course of his employment, including the time he spent on different tasks and in different areas. Having carefully reviewed the evidence and submissions on file, and as presented at the hearing, the panel is unable to relate the worker's hearing loss to the performance of his job duties as described.
In arriving at that conclusion, the panel notes that the evidence indicates the worker was performing a variety of tasks using different equipment each day. In his evidence at the hearing, the worker indicated that the majority of his duties involved moving equipment in and out and moving parts around. He said he was "probably outside three-quarters of [his] day, then the rest of the day was spent going in and out of shops, like bringing mechanics a machine, taking stuff out of the shop for shipping." The worker said he did not perform duties in the shops themselves, that "…you were there for 10 minutes, 15 minutes, and then you either, you might be back in another 15 minutes, bringing another machine, or whatever, but you were in and out of the shops."
The evidence also shows that there was a lack of consistency in the extent to which the worker would have been exposed to noxious noise in the workplace and the level of noise to which he may have been exposed on a daily basis. The worker thus indicated at the hearing that there was no set routine or predictability with respect to what he would do each day or part of a day:
Q Did you have a certain routine…we've talked lots about where you're in and out…but did you have certain routines where…you did a certain part of your job at a certain part of your day, or was it just kind of whatever was on the docket that day?
A Just kind of whatever was on the docket, because you would come in in the morning, and you would go to the office, and the boss would say, okay, there's 10 machines going out, fire them up and get them ready. And here's the stuff the guys wanted in the shop for, mechanical shop, welding shop, whatever, they would give you all these. And they would say, bring these other ones out, park them, or get them ready for shipping.
Q So you would come to work and plan out your day from the morning, right?
A From that.
Q It wasn't like, you know, you would do all the outside work, and then at the end of the day you would do all the inside work?
A Oh, no, it was whatever, like, first thing in the morning, you might be in the shop, taking stuff out, and then later on, putting stuff in the shop.
With respect to the approximately three-quarters of his work day which the worker estimated he spent working outdoors in the yard, there are no available records of noise testing in the yard or following the worker's activities throughout the day which would enable the panel to determine whether the noise criteria contained in the Policy have been met.
With respect to the worker's exposure to noise inside the shop, the worker stated that he was exposed to noise in the welding shop, paint bay, mechanic shop, etc. The panel notes that the report of the findings of the Occupational Noise Hazard Assessment from June 2005 which the employer provided indicates that the ambient noise in the welding shop was 70 decibels, the paint/steamer area was 78-80 decibels and the mechanic shop (tractor shop) was 76-89 decibels. It was noted that the high end of the sample in the mechanic shop was when an air tool was used. The panel accepts that the worker may have been exposed to higher noise levels than the ambient noise levels at various times in the shops, but is not satisfied that the worker would have been exposed to high enough levels on a sufficiently consistent basis to meet the noise threshold in the Policy.
The panel acknowledges the worker's submission that his hearing loss predates the 2005 assessment by several years and that older equipment which the worker would have been working with prior to 1995 may have been louder or may not have provided the same protection for the worker's hearing due to lesser industry standards or hearing protection. However, the panel is unable to relate the information provided by the worker's representative with respect to such noise levels, or the representative's reference to a salesperson's accepted claim, to the facts and circumstances of the worker's case.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain 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.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of December, 2019