Decision #33/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on January 16, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On January 17, 2018, the worker filed a Worker Hearing Loss Report with the WCB reporting a gradual loss of his hearing, beginning in 2006. The worker attributed his hearing loss to work with "…boilers, air condition (sic), chillers, cooling tower, pumps, fire pump, fire alarms." On the Work History Summary submitted with the Report, the worker noted that he had been employed with the employer since August 1990, wore hearing protection but was exposed to loud noise six hours per day. He further noted that he was employed with his previous employer from February 1986 to August 1990, did not wear hearing protection and was exposed to loud noise for eight hours a day.
The WCB gathered audiograms from the worker's previous employer from 1986 to 1990 and from his current employer to the date he filed his claim. On January 27, 2018, a report was received from an otolaryngologist who treated the worker in 2006. The otolaryngologist reported that the worker was seen for an independent assessment on September 27, 2006 after noting concerns regarding his hearing during a hearing test by his employer. The otolaryngologist indicated the worker reported being exposed to loud noise but also that he used hearing protection. Further, it was opined that the worker "…in 2006 had a very mild hearing loss. Not generally in keeping with loud noise exposure." A further report, dated February 16, 2018 from the worker's treating Ear, Nose and Throat (ENT) specialist was received on February 22, 2018. The ENT specialist advised that the worker was first seen on June 8, 2007, reporting a "…progressive hearing loss ongoing for about five years." He further advised the specialist that he had been working around machinery for about ten years, with hearing protection. The ENT specialist advised the audiogram "…showed a bilateral mild sensorineural loss slightly more pronounced in the right ear" and that an MRI was requested to rule out an acoustic neuroma. The MRI did rule out the neuroma. The worker was seen again on November 12, 2012, May 31, 2016 and July 7, 2017, with audiograms indicating bilateral mild sensorineural loss initially, increasing to mild to moderate sensorineural hearing loss. The ENT specialist opined that "The configuration of the hearing loss actually isn't typical of noise exposure."
On May 7, 2018, the worker's current employer provided the WCB with its Employer Hearing Loss Report, indicating that the worker had been employed with them since August 1990 and that hearing protection had been provided. Included with the Report was the employer's Hearing Conservation and Noise Program, completed January 10, 2006, noting that the Program had been established in 1985. The worker's file was reviewed by the WCB ENT specialist on June 6, 2018, who opined that the configuration of the worker's audiograms were "…not typical or diagnostic of NIHL (noise-induced hearing loss)." On June 7, 2018, the worker was advised that his claim was not acceptable as the WCB determined that he had not been exposed to sufficient levels of noise to meet the criteria for NIHL. As well, the worker was advised the WCB ENT specialist had provided their opinion that his audiograms were not typical for NIHL.
The worker requested reconsideration of the WCB's decision to Review Office on September 26, 2018.
Review Office determined on November 29, 2018 that the worker's claim was not acceptable. Review Office placed weight on the opinions of the worker's ENT specialist, who stated that the findings were not typical of NIHL and the WCB ENT specialist's opinion that the configuration of the worker's audiograms was not typical for NIHL. Review Office acknowledged that the worker's testing indicated that he had hearing loss but found it to be unrelated to his employment.
The worker filed an appeal with the Appeal Commission on April 30, 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 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.
The WCB's Board of Directors has established Policy 220.127.116.11, 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 his union representative who made an oral presentation to the panel. The worker responded to questions from his union representative and from the panel.
The worker's position, as submitted through his union representative, was that his claim for noise induced hearing loss should be accepted by the WCB.
The union representative reviewed the duties that the worker performed that exposed him to noxious noise in the workplace, such as inspecting, testing and maintaining building boilers, air chilling units, air compressors, fire alarms, pumps as well as exhaust and circulation fans. The panel was advised that sometimes there were multiple pieces of machinery in one room so that, even when the piece of machinery the worker was servicing was shut-off, there were other pieces of machinery in the room that remained operating. It was explained to the panel that the worker's noxious noise exposure was constant and re-occurring as the maintenance/inspection of the machinery was performed daily on a rotating schedule.
The panel was referred to the 2006 noise testing report that was conducted at his workplace and highlighted that the report confirmed that the type of work performed by the worker exposed the worker to noise levels from 66 to 96 dBA and that the report indicated the loudest machinery was rated at 96 dBAs eight hours a day. The panel was also advised that additional equipment had been added to the workplace since the 2006 noise testing report had been prepared that would further contribute to the overall noise levels that the worker would be exposed to.
The worker acknowledged to the panel that he wore hearing protection. However he stated he received little training on how to properly insert the hearing protection.
The panel was also asked to consider the report on file that was prepared by a physician with an interest in occupational medicine dated February 14, 2019 that the panel was advised supported the worker's assertion that he had developed NIHL due to exposure to work related noxious noise.
In sum, the worker's union representative submitted that the evidence supported that the worker was exposed to noxious noise while working in noisy areas and developed noise induced hearing loss as a result of that exposure and he is entitled to WCB benefits.
The employer was represented by legal counsel as well as an advocate who both participated via video conference. Prior to the hearing the employer's counsel provided information to the parties regarding hearing loss. The employer's counsel made an oral presentation to the panel and answered questions posed by the panel.
The employer's counsel reviewed a number of positions that the worker historically held with the employer prior to his present position. He suggested that two of them, being a custodial position and a commercial services position, would not have resulted in the worker being exposed to noxious noise.
The employer's counsel also questioned whether the worker would have been working within the proximity of loud machinery his entire daily shift or only part of it. The employer's counsel also stated that, while the highest noise ratings identified in the 2006 noise testing report was 96 dBA, that rating was part of a range that began at 66 dBA. He submitted that such a finding supported that the worker was not exposed to noise levels of 96 dBA for his entire shift. The employer's counsel also referenced a statement in the 2006 noise testing report that he suggested supported that the classification the worker was employed in would have only exposed him to noise levels in excess of 84 dBAs "…on occasion."
With respect to whether the worker's claim for NIHL was acceptable under the WCB policy, the employer's counsel made the following comment.
When you look at some of the decisions from the Commission, I think the policies directed can be reduced to a two-step test, if I may put that to you.
The first one is that there needs to be objective medical evidence establishing that a worker has sustained NIHL, so that’s the medical side of things.
And the second part is that there should be sufficient exposure to noise during one's employment period.
The employer's counsel reviewed the information that he submitted prior to the hearing that consisted of two articles on hearing loss. The employer's counsel asked the panel to pay particular attention to the section in one of the articles provided that referred to the "cookie-bite" type of hearing loss pattern that he submitted was consistent with the worker's hearing loss pattern. It was the employer's position that this type of hearing loss pattern was not consistent with NIHL and therefore not work related.
The employer's counsel reviewed the medical reporting in the worker's file and noted that the medical reports prepared by the hearing specialists did not support a diagnosis of NIHL.
The employer's counsel noted that the worker had acknowledged that he had regularly worn hearing protection which would have reduced his exposure to any noxious noise to levels that were below the 84 dBA threshold required under the WCB policy for a claim for NIHL to be accepted.
In sum, the employer's position, as submitted through their legal counsel, was that the worker's claim should not be accepted as the worker's medical reporting did not establish that the worker had NIHL, and further, that the worker's exposure to noxious noise at work would not meet the WCB policy criteria of noise exposure for a claim to be accepted.
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 resulted 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 in this claim.
In making this determination, the panel reviewed all the information provided and placed significant weight on the following:
• The worker acknowledged at the hearing that he wore hearing protection at work which would have reduced his exposure to noxious noise even if the hearing protection was not always correctly fitted.
• Further, in response to a question from the panel as to how many hours was the worker exposed to loud noises on an average day, the worker responded, "At least four hours I would say because I have to do other maintenance work too." As noted in the policy, if the worker was exposed to noxious levels of noise for four hours per day, then the exposure level would have to be on average 88 dBAs.
• The January 10, 2006 Hearing Conservation and Noise Program report stated that "Recorded sound levels in building equipment rooms range from 66 to 96dBs." and that the worker would have been exposed to noise levels above 84 dBAs "…on occasion." However, the panel is satisfied, based on the information provided at the hearing and in the file that the worker's noise exposure, when factoring in the use of hearing protection as well as the average hours of daily exposure, would be below the required criteria set out in the WCB Noise Induced Hearing Loss Policy.
It is also the panel's position that the worker does not have noise induced hearing loss, based on the following findings:
• The worker was seen by an ENT specialist on September 27, 2006 who provided the WCB with a report on January 27, 2018. The ENT specialist reported that when he was examined in 2006 he had "a very mild hearing loss" that was "Not generally in keeping with loud noise exposure."
• The worker was seen by an ENT specialist on June 8, 2007, November 12, 2012 and again on July 7, 2017. She stated in her February 16, 2018 report to the WCB that the worker's audiograms from 2007 and 2012 identified bilateral mild sensorineural loss. The worker's May 31, 2016 audiogram identified mild to moderate sensorineural loss. The ENT specialist further stated in the report that "The configuration of the hearing loss actually isn't typical of noise exposure."
• The worker's audiograms were reviewed by the WCB ENT consultant who provided the following opinion on June 16, 2018 when asked by the WCB if the audiogram on file was indicative of NIHL. "The audiograms on file have a cookie-bite configuration with the maximum loss being in the mid frequency range. This configuration is not typical or diagnostic of NIHL."
The worker's union representative submitted that the panel should consider the opinion outlined in the report dated February 14, 2019 that was prepared by a physician with an interest in occupational medicine that stated, in part:
In summary, I think your current hearing problems are likely related to a combination of a number of factors. First, when you started work there was likely some underlying sub-clinical hearing loss (due) to non-work related factors. During your time at work you may have been exposed to excessive noise and had some noise induced hearing loss. You also have some changes associated with aging to explain part of your hearing loss.
The panel has considered this opinion. However, the panel prefers the opinions provided by the worker's hearing specialists. Those reports do not support that the worker has NIHL.
The panel also notes that there is a document on file that was sent to the worker while employed by a previous employer dated May 18, 1988. The document states that a review of the worker's audiometric tests results from December 23, 1988 indicate that the worker had "…an early warning sign of hearing loss" and that "…it is my opinion that noise has contributed to your hearing loss." However, as noted previously, the panel prefers the opinions provided by the worker's hearing specialists which do not support that the worker has NIHL.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain NIHL during the course of his employment with his present employer.
The panel finds that the worker's claim is not acceptable and the worker's appeal is denied.
M.L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. Kernaghan - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of March, 2020