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 hearing was held on December 18, 2019 to consider the worker's appeal.

Issue

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

Decision

The worker is entitled to a hearing aid for his right ear.

Background

The worker filed a hearing loss claim with the WCB on September 8, 2003 for noise induced hearing loss related to his job duties with the employer. His claim was accepted by the WCB on August 31, 2004 for exposure to noxious levels of noise. The worker did not qualify for a permanent partial impairment rating based on the opinion of the WCB's ENT (ear, nose and throat) specialist however, he did require a hearing aid for his left ear.

On July 28, 2010, the WCB received a copy of an audiological evaluation for the worker. The audiologist who conducted the evaluation indicated test results of "Right test results indicate a mild sloping to moderate high frequency sensorineural hearing loss with good speech discrimination and normal middle ear function." and "Left test results indicate a mild sloping to moderately severe sensorineural hearing loss with good speech discrimination and normal middle ear function." The audiologist noted that in addition to requesting a replacement for his left hearing aid, the worker was also requesting a hearing aid for his right ear. WCB advised the worker on November 19, 2010 that replacement of his left hearing aid was approved but he was not entitled to a hearing aid for his right ear as he had not been exposed to sufficient noxious noise since his claim was accepted in 2004.

The WCB received a further report from an audiologist who examined the worker on June 22, 2016. The audiologist noted recent audiological testing indicated "…a mild sloping to moderately-severe high frequency sensorineural hearing loss in the right ear and a mild sloping to severe high frequency sensorineural hearing loss in the left ear." Binaural hearing aids were recommended.

The WCB contacted the worker on August 9, 2016 to discuss his claim. The worker advised that he had been working with a subsequent employer since 1996 in the position of a maintenance supervisor and his job duties involved being exposed to loud noise approximately 20% of the time he was at work, and that he used the provided hearing protection. The worker confirmed that he did not snowmobile, fly or race cars, had never shot a gun, did not play in a musical band and did not use power tools at home. On August 22, 2016, the worker's subsequent employer confirmed his job duties and that the worker has some noise exposure but hearing protection was provided. WCB advised the worker on August 23, 2016 that WCB would provide funding for a left hearing aid but not for a right hearing aid, as the worker was not exposed to noxious noise after leaving the employer in approximately 1996 and the deterioration in his hearing could not be causally connected to his current job duties.

On January 24, 2019, the WCB received a report from an audiologist in support of the worker's request for a hearing aid for his right ear. The audiologist noted again that having binaural hearing aids would "…highly improve his hearing and listening abilities" as the worker's ability to "…discriminate comfortable loud level speech presented in quiet conditions was good in the right ear and slightly impaired in the left ear." An audiogram dated January 8, 2019 was provided.

The WCB confirmed to the audiologist on February 11, 2019 that the request was reviewed, but it had previously determined that the worker was not entitled to a hearing aid for his right ear.

On April 15, 2019, the worker's treating audiologist provided a letter in support of the worker's request for a right ear hearing aid, noting that the initial testing done in 2010 indicated a "…mild to moderate high frequency sensorineural noise notching in the right ear." A test done in 2015 noted a "moderately-severe rising to mild high frequency sensorineural hearing loss for the same ear." The audiologist expressed the view that the deterioration in the worker's hearing was related to his work-related noise induced hearing loss and supported that the worker should be entitled to a hearing aid for his right ear.

The worker requested reconsideration of the WCB's decision to Review Office on May 14, 2019. Review Office contacted the worker on May 22, 2019 for further information and the worker confirmed he did not have hearing tests conducted while he worked for the employer and had not had any tests conducted between 2003 and 2010.

Review Office determined on July 15, 2019 that the worker was not entitled to a hearing aid for his right ear. Review Office found that after the worker ceased working for the employer, he was no longer exposed to noxious noise, and noted that the worker's current employer confirmed that the noise exposure in his current position was negligible and the worker was provided with hearing protection. As the worker was no longer exposed to noxious noise, his need for a hearing aid for his right ear could not be related to his job duties.

The worker filed an appeal with the Appeal Commission on July 31, 2019. 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.

Section 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. Section 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 44.20.50.20.01, Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The effective date for the Policy is for claims arising from accidents on or after April 1, 2000 and a date of notification prior to October 1, 2013. The relevant time period for this claim falls within those dates, and as such, the Policy applies to this case.

The Policy states, in part, as follows: 

3. Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is 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 will be reduced by half. 

… 

7. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker shall 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 on the appeal. He made oral submissions to the panel and answered questions put to him by panel members.

The worker outlined to the panel that he was exposed to noise for 17 years while working on various projects with the employer, providing details of the some of those projects. He claimed that the noise exposure in the course of that employment that caused his left ear hearing loss, which was accepted by the WCB, also caused his right ear hearing loss.

The worker also provided the panel with information about his subsequent employment and noted that there was further noise exposure with subsequent employers when he was working at various sites, although not to the same extent as in his employment with the employer on this claim.

His position is that both ears were subjected equally to daily noise exposure without benefit of any hearing protection in the course of this employment. The hearing test results indicate that he now requires binaural hearing aids and the worker states that the WCB should therefore provide his right ear hearing aid as it has provided the left ear hearing aid.

Employer's Position

The employer did not participate in the appeal but provided a written submission, dated November 12, 2019 in advance of the hearing. In that submission, the employer confirmed the general details of the worker's employment and noted its support for the worker's claim for coverage of a right ear hearing aid due to his noise induced hearing loss.

Analysis

The issue on this appeal 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 requires a hearing aid for his right ear as a result of his exposure to workplace noise. The panel is able to make that finding.

The worker's WCB claim for noise-induced hearing loss based on his exposure to noxious levels of noise in the workplace was accepted on August 31, 2004. At that time, the WCB advised the worker that based upon the audiological evidence on file and the opinion of the WCB ENT specialist, he required one hearing aid for his left ear.

The panel notes that the worker's claim related to loss of hearing in both ears, as evidenced by the audiological report of June 3, 2003. The WCB ENT specialist on December 23, 2003 reviewed the results of the 2003 hearing assessment and noted asymmetric NIHL and arranged for further testing. Further testing of the worker's hearing took place on April 27, 2004 and revealed a mild sensorineural notch at 4,000 Hz in the right ear and a slight to moderate to mild sensorineural loss noted above 500 Hz in his left ear. Testing was also undertaken to rule out the possibility of retro-cochlear pathology that could explain the asymmetric presentation of the worker's NIHL. On the basis of this report, the WCB ENT consultant again confirmed that the worker has NIHL and that the results did rule out any retro-cochlear pathology.

Upon reviewing the worker's claim in September 2003, the WCB determined there was sufficient evidence of the worker's exposure to noxious noise levels in the workplace to make a finding that the noise exposure caused the worker's hearing loss. The panel noted that the information on file does not indicate any evidence of a difference in occupational noise exposure between the worker's right ear and his left ear, and therefore finds that there was equal exposure to the workplace noise.

More recently, the April 6, 2010 audiogram reveals a further deterioration in the worker's hearing in both ears, although greater on the left than on the right. By the time of the June 20, 2016 audiogram, the worker's hearing in his left ear had stabilized, but had deteriorated further on the right such that the audiologist was recommending the worker be fitted with binaural hearing aids. Further audiological results from January 8, 2019 revealed stability in the worker's hearing thresholds. The audiologist again recommend that the worker be fitted with left and right hearing aid to "…highly improve his hearing and listening abilities."

The panel is satisfied that the medical information on file supports that the hearing loss in the worker's right ear as identified in the audiograms on file has a significant sensorineural component that is work-related. The worker had NIHL in his right ear at the time of his claim in 2003, as set out in the June 3, 2003 audiogram, but it was not severe enough to require the use of a hearing aid in that ear. By June 2016, the combined effect of his work-related hearing loss and any non-compensable deterioration in his hearing caused the worker's audiologist to recommend the use of a hearing aid for the right ear as well as his left.

The panel notes that the Policy contains mandatory language in respect of provision of hearing aids: "When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s)…." The two prerequisites for entitlement to a hearing aid are an accepted claim for hearing loss and a recommendation by a specialist. Both are present here. On the basis of the WCB's acceptance in 2004 that the worker had sufficient workplace exposure to noxious noise to allow his claim for NIHL and on the basis of the recommendations from the audiologist from 2016 onwards confirming that the worker requires binaural hearing aids, the panel is satisfied that the provisions of the Policy are met here.

In the result, the panel finds, on a balance of probabilities, that the worker requires a hearing aid for his right ear as a result of his exposure to workplace noise. The worker is therefore entitled to a hearing aid for his right ear.

The worker's appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of February, 2020