The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that his permanent partial impairment rating of 4% is correct and that the monetary value of the permanent partial impairment award has been calculated correctly. A teleconference hearing was held on May 5, 2020 to consider the worker's appeal.

Issue

Whether or not the worker’s permanent partial impairment rating of 4% is correct; and

Whether or not the worker’s monetary value of the permanent partial impairment award has been calculated correctly.

Decision

The worker’s permanent partial impairment rating of 4% is correct; and

The worker’s monetary value of the permanent partial impairment award has been calculated correctly.

Background

The worker filed a Worker Hearing Loss Report with the WCB on March 13, 2019 claiming hearing loss that he attributed to exposure to loud construction noise while employed by the employer. The worker discussed his claim with the WCB on March 14, 2019 and noted that he suffered from ringing and hearing loss in both of his ears. He confirmed that his job duties involved daily exposure to loud equipment and that he used hearing protection when it became available.

The employer filed an Employer Hearing Loss Report on March 28, 2019 indicating the worker had been employed with them until his retirement in 2015. The employer noted on the Report that the worker was provided with hearing protection but it was not required regularly.

A note to the worker’s file completed by a WCB adjudicator on April 1, 2019 confirmed that the worker’s exposure to noise met the WCB criteria for a claim for noise induced hearing loss (NIHL). The worker attended for an audiogram on May 6, 2019 and the treating audiologist was of the opinion that the worker sustained “…a moderate high frequency sensorineural hearing loss bilaterally…” and recommended binaural hearing aids.

On May 24, 2019, the worker’s file, including the May 6, 2019 audiogram, was reviewed by the WCB Ear, Nose and Throat (ENT) specialist who confirmed the evidence established that the worker had noise-induced hearing loss with the first signs indicated on the May 6, 2019 audiogram. The WCB ENT specialist determined that the worker’s NIHL was ratable for the purposes of a permanent partial impairment award and calculated the award at 4% with a recommendation for two hearing aids.

The WCB advised the worker on May 28, 2019 that his claim for NIHL hearing loss was acceptable, he was entitled to coverage for two hearing aids and that a permanent partial impairment award of 4% had been calculated. The WCB also noted that after the age of 60, the WCB implements a presbycusis factor, to take into account the natural loss of hearing due to aging. On May 29, 2019, the WCB provided the worker with its calculation of the award with a reduction for the presbycusis factor.

The worker’s representative requested reconsideration of the WCB’s permanent partial impairment rating and the monetary award to Review Office on August 6, 2019. The representative submitted a list of the worker’s employers and noted that other co-workers had received higher impairment ratings.

Review Office determined on September 24, 2019 that the worker’s permanent partial impairment rating was correct but that the permanent partial impairment award was not correct. Review Office accepted and agreed with the calculation by the WCB ENT specialist of a 4% impairment rating, but found that based upon the May 6, 2019 date of the worker’s accident, the worker was entitled to a permanent partial impairment award of $5,720.

The worker’s representative filed an appeal with the Appeal Commission on October 24, 2019. A teleconference hearing was arranged.

Reasons

Applicable Legislation and Policy

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. That compensation includes awards for permanent partial impairment, as provided for in s 37 of the Act:

Compensation payable

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of the Act allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole body impairment.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "Policy") sets out that benefits are calculated under the Policy by determining a rating that represents the percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Impairment of Hearing Schedule which is attached as Schedule B to the Policy.

Schedule B sets out the methods by which permanent impairment of hearing is to be rated. For decisions where the date of accident is after April 1, 2000, the Schedule requires that Method 3 be applied. This involves calculating the percentage of hearing loss in each ear, calculating the combined percentage of hearing loss and then converting the loss of hearing to an impairment rating of the whole person. Schedule B also sets out that loss of hearing due to age, known as presbycusis, must be taken into account where a worker is over the age of 60 years.

Worker’s Position

The worker attended the hearing, represented by his spouse who outlined the worker’s position to the appeal panel. In the course of the hearing, both the worker and his spouse provided answers to questions from members of the appeal panel.

The worker’s representative noted that the cumulative hearing loss claimed by the worker began many years before May 6, 2019, the date that WCB established as the date of accident. The worker’s representative advised the panel that although the worker has hearing aids, he is still unable to properly hear and may require additional support services ongoing.

The worker outlined for the panel his work history, highlighting his exposure to noise in a variety of employment settings over the course of many years beginning in 1967 and until his retirement from the accident employer in 2015.

The worker’s representative confirmed to the panel that the only available audiological testing results are those on the worker’s WCB claim file, dated May 6, 2019

The Appeal of Claims Decision form submitted October 22, 2019 also outlines the basis for the worker’s appeal, as follows:

I appeal that my hearing loss occurred many years ago and has continued. There were no hearing tests until recently. This hearing loss was cumulative since 1966 due to working with extremely loud machinery. "Ear plugs and safety headphones were not provided or encouraged…WCB said hearing loss was due to an "accident" in (sic) May 6, 2019." This is not correct. It was continual, repetative [sic] extremely loud machinery….We disagree with “age reduction” also.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker's permanent partial impairment rating and monetary award have been correctly determined. For the worker's appeal to succeed on this question, the panel must find that the Act or the Policy was not correctly applied. The panel is not able to make that finding for the reasons that follow.

The panel notes that the worker raised concerns with respect to the date of accident established by the WCB and that the Review Office has ruled on that question; however, that issue is not before the panel on appeal and therefore has not been addressed in these reasons.

The panel first considered whether the WCB ENT advisor's assessment was conducted in accordance with the process set out in the Policy and Schedule B. The panel reviewed the audiological report from May 6, 2019 as well as the report from the WCB ENT advisor who assessed the degree of the worker’s permanent partial impairment.

The WCB ENT advisor confirmed on May 24, 2019 that the worker has ratable noise induced hearing loss as evidenced by the May 6, 2019 audiological testing report. The panel also noted that as of the date of testing, the worker was 74 years of age.

The WCB ENT advisor, in the May 24, 2019 Hearing Assessment report to the WCB claim file, calculated the worker’s hearing loss in each ear, taking into account a reduction factor based upon the worker’s 14 years of age over 60 years. Then, the percentage of hearing loss in each ear and a combined percentage was calculated, that was converted into a whole body impairment rating of 4%.

The panel reviewed the WCB ENT advisor’s methodology in calculating the worker’s whole body impairment rating as it relates to his NIHL and found that the calculations were conducted in accordance with the requirements of Schedule B to the Policy, using Method 3 as required. Further, the panel noted that the calculation of percentage of hearing loss correctly factored in the worker’s age at the time of hearing assessment taking into account that a portion of his hearing loss was due to age and not due to noise exposure. The panel finds that the worker’s presbycusis was properly taken into account according to Schedule B of the Policy.

The panel is satisfied, based on our review of the file, that the worker's 2019 PPI rating was determined in accordance with the provisions of the Policy. The panel therefore determines, on a balance of probabilities, that the worker's permanent partial impairment rating is correct.

Applying the Act and Regulation 1/2019, for accidents occurring in 2019 where the impairment rating is between 1% and 30%, the sum of $1,430.00 is payable for each full percentage of impairment.

The panel is satisfied the Review Office correctly calculated the total monetary award of $5,720. The panel therefore finds on balance of probabilities that the monetary value of the worker’s permanent partial impairment award has been calculated correctly.

The worker'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 17th day of June, 2020