The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is acceptable. A hearing was held on April 8, 2020 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a hearing loss claim with the WCB on October 23, 2017 reporting gradual hearing loss that he attributed to his job duties with the employer. The worker noted in his report that he always wore hearing protection and that he was not exposed to loud noise outside of work with the exception of home power tools a couple times a year.

An October 19, 2017 audiogram was submitted noting that the worker had “moderate high frequency sensorineural hearing loss” and recommending hearing aids for both ears. When the WCB contacted the worker on October 30, 2017, he provided a chronology of the positions he held with the employer and indicated that he was working in noisy environments with the employer since 1985 with hearing protection worn 75-90% of the time.

The employer submitted an Employer Hearing Loss Report to the WCB on January 11, 2018 along with copies of the worker’s audiograms from 1983 to 2003 and noise level testing reports. The employer advised that the worker was hired in 1980, then worked in a position in an office setting from 1995 to 2009 with no exposure to noxious noise and finally, worked in a position from 2009 to his retirement in 2017 where the noise level reports were noted to be 83dB in the winter months and 88dB in the summer months, although use of hearing protection would have reduced the noise exposure levels.

On January 23, 2018, the WCB Ear, Nose and Throat (ENT) specialist reviewed the worker’s file and concluded that the October 19, 2017 audiogram was the earliest test to show signs of noise-induced hearing loss (NIHL). The WCB advised the worker on January 25, 2018 that while it had determined he had exposure to noxious noise early in his employment, the WCB could not establish work-related exposure to noxious noise above the acceptable level for a sufficient period of time to meet the WCB threshold. As such, his claim was not acceptable.

The worker’s representative, on November 8, 2018, submitted additional information from the worker, including a detailed description of his job duties, along with noise measurement information from a federal regulatory agency and asked the WCB to reconsider the January 23, 2018 decision. On November 20, 2018, the WCB advised the worker that the information was reviewed and there would be no change to the prior decision.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on December 5, 2018. In the request, the representative noted that the worker’s additional duties, work area and noise exposure levels were not taken into consideration when the original decision was made.

On February 6, 2019, Review Office determined the worker’s claim was acceptable. Review Office gave additional weight to the evidence submitted by the worker’s representative, specifically the information from the federal regulatory agency, and found that a causal relationship existed between the worker’s job duties and his reported hearing loss. Review Office determined that the evidence supported the worker was exposed to noise levels sufficient to meet the criteria for the WCB’s hearing loss policy.

The employer filed an appeal with the Appeal Commission on September 30, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by 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. The Act defines “accident” in s 1(1) 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, 

(b) any 

(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 44.20.50.20, 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.

Employer’s Position

The employer was represented in the hearing by its Workers Compensation Coordinator. The employer’s representative provided a written submission in advance of the hearing and made oral submissions and answered questions from members of the panel during the hearing.

The employer’s position is that the worker was not exposed to noxious levels of noise that would be expected to cause NIHL during his employment with the employer.

The employer, as part of its written submission, provided to the panel an email dated March 31, 2020 containing an opinion from an expert in industrial hygiene retained by the employer to review allegations of noise induced hearing loss and other issues related to occupational health. The employer’s representative quoted extensively from this opinion in her submission including the following:

“I reviewed the new information provided in this case. I understand the perspective presented here, but I need to clarify that there is an important misinterpretation in the document. One should not confuse sound power level with sound pressure level. Sound power level is the acoustic energy emitted by a source which produces a sound pressure level at some distance. While the sound power level of a source is fixed, the sound pressure level depends upon the distance from the source and the acoustic characteristics of the area in which it is located. When we measure noise exposure we monitor sound pressure levels, not sound power levels….

It is also important to note that this risk of exposure is based not on peak values but on a TWA of 8h per regulation. The personal noise dosimetry monitoring done at [the employer] does include all the aspects of the job monitored over a work shift, including the work activities describe[d] in the document. The level of exposure will vary through the work shift and no employees are staying 8-hour[s] straight beside [source of job-related noise].”

The employer’s representative drew to the panel’s attention that the file contains some disparities in terms of the worker’s use of hearing protection. Initially he indicated to the WCB that he always wore it, but later he advised he did not always wear hearing protection.

With respect to the worker’s exposure to noise, the employer’s representative stated the employer’s position that the Review Office didn't fully understand the worker’s job duties. The type of noise he was exposed to with a closed window would not cause hearing loss. Even in the summer months, if the window were open, there may be exposure to higher levels of noise, but could be mitigated by use of hearing protection. Furthermore, typically, what the employer sees is if a worker worked solely in the worker’s job, there would more typically be asymmetrical hearing loss resulting due to the exposure to the wind on one side when the window is open. This is not however the case for the worker.

The employer’s representative referenced written materials (not provided to the panel) from the Saskatchewan workers compensation program that suggest noise induced hearing loss increases most rapidly during the first 10-15 years of exposure, with the rate of hearing loss declining over time. Thus, if hearing loss is not experienced until well after the noise exposure occurred, then the hearing loss is less likely to be related to the noise exposure and may instead be due to other factors. In the case of the worker, the noise level tests on file from 1983 to 2003, demonstrate normal hearing and fairly symmetrical hearing during his employment, which is not typical.

The employer’s representative stated that the worker was employed in an office-based job until 2009 and would not have had any noise exposure sufficient to cause NIHL during that time. The worker began working in a position with noise exposure in 2009. The employer’s representative noted that the noise exposure levels inside the cab where the worker spent most of his shift, would not be sufficient to cause NIHL as the worker alleges. While the employer does not dispute that the worker also had duties outside of the cab, the majority of his time would be spent inside.

The employer’s position, in sum, is that the evidence does not establish that the worker had sufficient exposure to noise in the course of his employment to satisfy the threshold as set out in the policy to establish that the worker’s NIHL was caused by his employment. Further, the worker’s exposure would have been mitigated to some extent by his use of hearing protection, and if the noise exposure had caused the worker’s hearing loss, it should more likely have been asymmetrical than symmetrical hearing loss. The worker’s claim should therefore not be allowed.

Worker’s Position

The worker appeared in the hearing with and was represented by a representative of his union. The worker’s spouse attended the hearing as an observer. The union representative made oral submissions on behalf of the worker and answered questions from members of the panel. The worker also answered questions put to him by members of the panel.

The worker’s representative noted that the worker clarified to the WCB that he did not intend to report he always wore hearing protection, but that he wore it most of the time when working in certain equipment.

The worker’s representative questioned whether the noise monitoring data provided by and relied upon by the employer was inclusive of all aspects of the worker’s position, over the course of an entire shift. The historical noise exposure data that the employer provided related only to noise recorded in the cab of the equipment and did not include exposure levels in the yard or outdoors.

The worker’s representative urged the panel to rely upon the worker’s evidence as to his job duties, rather than the employer’s report as to what the worker’s job entailed.

The worker advised that he began working in the position where the noise exposure occurred in 2007 and remained in that position until his retirement in 2017. He described to the panel his exposure to loud noise while undertaking the various duties involved in this position. He noted that noise exposure is greater for duties outside the cab than inside the cab. He noted that when using newer equipment, the noise exposure inside was much reduced and he was less likely to use hearing protection, but that in the older equipment, he typically wore hearing protection.

The worker described his daily tasks at the start of his shift to prepare for the day’s duties. Much of this time, ranging from 60-90 minutes daily, was spent in the terminal area outside the cab with greater noise exposure. During the shift of some 10-12 hours, he would need to leave the cab and disembark to inspect other equipment. This would happen 6-8 times daily and he would be exposed to significant noise levels from both his equipment and that he was inspecting during that time. The worker estimated that this would amount to approximately one hour in total time spent on inspections.

The worker confirmed that he had no hearing tests between 2003 when the employer discontinued workplace testing and 2017. He first became aware of his loss of hearing when family members noticed and brought it to his attention upon retirement.

In response to the employer’s submission, the union representative urged the panel to disregard the reference made to materials from the Saskatchewan workers compensation program as being irrelevant to the panel’s determination of the issue before it.

In sum, the worker’s position, as outlined by his representative is that the evidence before the panel establishes that the worker was exposed to noise in the course of his employment duties, in excess of the threshold required under the Policy. On this basis, and based upon the medical findings that confirm that the worker has symmetrical NIHL, the claim should be accepted and the employer’s appeal dismissed.

Analysis

The issue on appeal is claim acceptability. For the panel to find that the claim is acceptable, it would have to determine that the worker’s hearing loss is the result of his exposure to noise in the workplace. The panel was able to make such a finding.

The Policy clarifies that hearing loss is not only caused by exposure to noise at work and that in order for a claim for NIHL to be accepted by the WCB, it must be established that a worker was exposed to hazardous noise at work above the specified threshold of no less than two years exposure, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis. For noise levels above 85 decibels, every increase of 3 decibels reduces the required exposure time by one-half.

The evidence on file relating to the worker’s hearing includes an audiogram conducted on October 19, 2017 as well as employer-conducted hearing examination results for the period from August 1983 through August 2003. The early testing results indicate that the worker had relatively normal hearing through 2003. The October 19, 2017 audiogram report includes the comment that the testing demonstrates the worker has “[m]oderate high frequency sensorineural hearing loss” and hearing aids are recommended for both ears. The WCB’s Ear Nose and Throat (ENT) consultant reviewed the worker’s audiological testing results and concluded, on January 23, 2018, that the “…earliest audiogram on file to show signs of NIHL is dated Oct. 19, 2017.”

The panel finds, on balance of probabilities that the evidence supports the WCB’s determination that the worker has binaural noise induced hearing loss. The employer did not dispute that finding.

The question for determination is really whether or not the worker’s NIHL is caused by and the result of noise exposure in the workplace. As outlined above, the evidence must support that the workplace noise exposure exceeds the minimum threshold established in the Policy.

There is evidence on the worker’s file with respect to his workplace noise exposure in the position that he began, whether in 2007 or 2009, and continued to work in until his retirement in 2017. The employer provided the WCB with a 2016 noise monitoring survey that indicated “…area noise levels in the cab ranged from 71 to 75 dBA.” The panel noted that this survey was conducted January 12-14, 2016 and that it measured noise levels by placement of two dosimeters placed on seats in the cabs for a two 10-hour periods. Windows were closed for the duration so that only interior noise was measured.

The file also contains noise survey measurements taken in 1999 and 2000, provided by the employer to the WCB. Those in-cab measurements indicate noise exposure levels for the worker’s position ranging from 85.5 – 89.3 dBA in June 2000 and ranging from 81.7 – 85.3 in November 1999. The panel notes that use of hearing protection would reduce that exposure.

The worker provided the panel with information obtained online from the Canadian Transportation Agency regarding noise measurements for other equipment that the worker would have been exposed to every working day, particularly in the yard time at the beginning of each shift and when inspecting equipment through the day, both outside-cab activities. The noise measurements indicated in that document ranged from 98 – 134 dBA, although the panel notes the materials are not explicit in terms of whether this measures sound power at source or at a distance.

Further, the worker provided testimony to the panel as to his noise exposure at work during this period. The worker indicated that he spent at minimum 2 hours, and sometimes more, daily in outside-cab work activities where his noise exposure is much greater than during the balance of each shift, in cab. He detailed those activities for the panel and as well as in his submission to the Review Office, on file. The panel noted that the worker testified his shifts are 10 – 12 hours in duration.

Applying the provisions of the Policy with respect to noise levels in excess of the minimum, daily noise exposure of an average of 91 dBA would be required to meet the threshold at 2 hours per day.

On the basis of the documentary evidence reviewed and the oral evidence provided, the panel finds, on a balance of probabilities, that the worker’s workplace noise exposure was sufficient to meet and exceed the minimum threshold required for a claim for noise induced hearing loss as set out in the WCB Policy. Therefore, and on the basis of the panel’s finding that the evidence supports that the worker has noise induced hearing loss, the panel concludes that the claim is acceptable.

The employer’s appeal is therefore dismissed.

Panel Members

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 29th day of May, 2020