Decision #66/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A teleconference hearing was held on May 7, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Hearing Loss Report with the WCB on December 13, 2018 in which she related gradual hearing loss and ringing in her ears to her job duties with the employer. Together with her Report was an audiologist’s report and audiogram dated November 28, 2018, indicating that the worker had “…a bilateral mild sloping to moderately-severe high frequency sensorineural hearing loss” and recommending hearing aids for both ears.
On December 22, 2018, the WCB’s Ear Nose and Throat (ENT) specialist reviewed the November 28, 2018 audiogram and opined that it was “…suggestive of noise induced hearing loss.”
In initial discussions with the WCB, the worker advised that most of her job duties with the employer involved working in an office position; however, some duties involved working on a production floor “…where she was exposed to high levels of noise from the equipment running.” She further advised that in an average week, she spent approximately 60% of her time on the production floor with no hearing protection worn and the remaining 40% of her time in an office.
The employer submitted an Employer Hearing Loss Report to the WCB on January 14, 2019, indicating the worker commenced employment on December 9, 1998 and continued with the employer until July 21, 2006. The employer stated the worker spent approximately 5 months in the packaging area and the balance of her employment was in an office position. In that position, the employer noted the worker would have spent four to five hours daily in the office and three to four hours in the production area. The employer provided a Noise Level report dated February 20, 1998 indicating the levels for various areas of the employer’s worksite as well as a copy of the worker’s job description.
On April 30, 2019, the WCB contacted the employer to discuss noise level information provided. The employer confirmed that when the worker was in the warehouse area, she would have been performing her job duties in the area of the warehouse where the noise levels were noted to be less than 80dBA, and that the rest of her duties were performed in an office setting with no noise exposure.
The WCB advised the worker on April 30, 2019 that her claim was not acceptable, as it could not establish that the worker had been exposed to noise at work above the threshold set out in the WCB’s Noise Induced Hearing Loss policy.
On May 21, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. The worker noted that her treating audiologist attributed her hearing loss to noise exposure, which she believed she would have only been exposed to while employed with the employer.
Review Office determined on May 28, 2019 the worker’s claim was not acceptable, relying upon the noise level testing reports provided by the employer indicating the noise levels at the various worksites. Review Office acknowledged the worker was exposed to loud noise while performing her job duties but found that the noise levels were below the threshold levels required pursuant to the WCB policy. As such, Review Office could not establish the worker had noise induced hearing loss due to her exposure to noise at work.
The worker filed an appeal with the Appeal Commission on June 14, 2019. An oral hearing was held by teleconference on May 7, 2020.
Applicable Legislation and Policy
The Appeal Commission 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,
(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 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 appeared at the hearing and made submissions on her own behalf. The worker also provided answers to questions posed by panel members.
The worker outlined her position that as a result of daily noise exposure in the course of carrying out her workplace duties with the employer, she sustained NIHL. She believes that there is a direct causal link between her workplace exposure to noise and her diagnosed noise induced hearing loss.
The worker noted the noise level readings for the production area as set out in the information provided by the employer indicated differing noise levels, ranging from 82 – 90 dBA, from one work area to another. She questioned how noise levels could vary to such an extent within the same larger workspace. In her view, the noise levels are more consistent throughout the production area. She also queried whether the noise levels logged are accurate.
The worker confirmed to the panel that she spent part of each workday in the office and part in the production area. Out of each 8-hour shift, she estimated that she would spend three to five hours on the production floor. She stated that from December 1998 through July 2006, she was daily exposed to noise in the production area, for varying lengths of time from day to day.
In response to questioning from the panel, the worker confirmed that she had not been exposed to significant noise in any work environment since leaving the employer. While still working with the employer, she first began to notice ringing in her ears. She noted that she did not wear any hearing protection during this employment.
With respect to the noise level map on file, the worker confirmed to the panel that the plant layout as identified on the map in 2003 was accurate throughout her period of employment. She pointed to the lower half of the map, which she described as the packaging area and indicated that she worked throughout this area as well as in receiving, which was not shown on the map.
The worker also confirmed to the panel that the only hearing test conducted was the one reported in the WCB claim file, dated November 28, 2018.
In sum, the worker’s position is that as a result of daily noise exposure in the course of her employment, she developed NIHL and that her claim should therefore be accepted.
The employer did not participate in the appeal.
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 exposure to noise in the workplace. The panel was unable to make such a finding for the reasons that follow.
The Policy clarifies that hearing loss is caused not only 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. As an example, this means that the average noise level must be at least 88 dBA for 4 hours of daily exposure.
The evidence on file relating to the worker’s hearing includes an audiogram dated November 28, 2018. The audiogram report of December 5, 2018 includes the comment that the testing demonstrates the worker has bilateral mild sloping to moderately-severe high frequency sensorineural hearing loss with associated constant bilateral tinnitus.
The WCB’s Ear Nose and Throat (ENT) consultant reviewed the worker’s audiological testing results and concluded, on December 22, 2018 that the November 28, 2018 audiogram “…is suggestive of noise induced hearing loss.”
While the evidence supports the WCB’s determination that the worker has binaural NIHL, the panel must also determine whether or not the worker’s NIHL is caused by and the result of noise exposure in the workplace. And, 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 workplace noise exposure in her employment and she denied any noise exposure outside of her work with the employer.
The employer provided the WCB with a noise monitoring survey dated February 20, 1998 that indicated area noise levels in the production area ranging from 72 - 94 dBA. The WCB claim file also contained a workplace noise level map dated January 9, 2003 that indicates noise levels in the production area ranging from 80 to 88 dBA, with highest levels in the counting line areas and lower levels in the packaging and labeling areas. The employer advised the WCB that the worker’s noise exposure on the production floor would have been less than 80dBA, similar to that in the labeling areas.
The worker testified as to the extent of her daily noise exposure at work during this period. She indicated that she spent between three and five hours daily in the production area where noise exposure is much greater than during the balance of each shift in the office. The employer suggested the worker spent three to four hours daily in the production area. The worker also detailed her work activities for the panel and confirmed her shifts were 8 hours in duration.
The evidence before the panel suggests that the degree and extent of the worker’s daily exposure to noise in the course of her seven plus years of employment was variable from day to day. On a daily basis, the worker worked varying hours in a noisy environment, in varying locations within that environment, with varying degrees of noise exposure as a result. The evidence does not however support a finding that the worker’s daily average noise exposure exceeded the threshold required by the Policy to establish a claim for NIHL.
On the basis of the documentary evidence reviewed and the oral evidence heard, the panel finds, on a balance of probabilities, that the evidence does not establish that the worker’s workplace noise exposure was sufficient to meet the minimum threshold required for a claim for noise induced hearing loss as set out in the WCB Policy. Therefore, the panel concludes that the claim is not acceptable.
The worker’s appeal is dismissed.
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