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 coverage for hearing aids. A file review was held on March 31, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to coverage for hearing aids.

Decision

That the worker is entitled to coverage for hearing aids.

Background

The worker filed a Claim for Hearing Loss with the WCB on December 1, 2008. He noted that he first became aware of a hearing problem in 1993 and reported it to his employer on December 15, 1993. He attributed his hearing loss to being exposed to noxious noise throughout his career with the employer, as a machine operator and laboratory technician.

Information was received from the employer, including audiometric test results and audiograms from 1987 to 2002, and copies of job descriptions for positions the worker occupied up until his retirement in 2004. An audiogram of a November 27, 2008 assessment of the worker's hearing was also obtained, along with a January 13, 2009 report from the worker's audiologist, who opined that the worker had a "…mild to moderate sensorineural hearing loss…" in his right ear and a "…mild hearing loss…" in his left ear, and recommended a hearing aid for his left ear.

The worker's claim was reviewed by the WCB's Ear, Nose and Throat ("ENT") consultant on June 8, 2009, and on September 3, 2009, the worker was advised that his claim for noise-induced hearing loss ("NIHL") was accepted and he was entitled to a hearing aid for his left ear.

On November 25, 2015, the WCB received a further audiogram and report from an audiologist, who reported that the worker had attended for retesting and his examination of the worker revealed that he "…now sustains a mild to moderate bilateral SNHL [sensorineural hearing loss]…" and his audiogram showed "…an aggravation of his hearing loss at both ears since his last test in October 2009." Bilateral hearing aids were recommended.

On December 8, 2015, the WCB contacted the worker to gather further information with respect to the request for bilateral hearing aids. The worker advised that his hearing loss symptoms were noted through the testing done at work, and his hearing was deteriorating over time. He was unable to identify a reason for a difference in the hearing between his right and left ears as "…when working with machinery, the noise was all around." The worker confirmed that he worked for the employer from 1967 to his retirement in 2004. From 1967 to 1990, he was a machine operator. Hearing protection was not worn initially, and was not worn consistently when it became available. As the result of a back injury, he was accommodated in a laboratory position from 1990 until his retirement, where hearing protection was only worn when using noisy machinery.

On January 6, 2016, the WCB spoke with the current supervisor of the worksite where the worker had been working in his accommodated position. The supervisor indicated that the work and noise levels in that worksite had not changed since the worker's retirement. He indicated there were certain areas in the worksite where hearing protection was required but the use of machinery in those areas varied by season and averaged one to two hours per day for approximately nine months of the year. He further advised that there were a couple of times a year when a worker would be out in the field, but hearing protection was required.

On January 31, 2016, the worker's file with the updated information was reviewed by the WCB's ENT consultant. The ENT consultant noted that the worker's 1987 audiogram showed signs of NIHL in both ears; the 1993 audiogram showed signs of NIHL in the worker's left ear and warning signs in his right ear; the 1999 audiogram showed progression of hearing loss in both ears, consistent with NIHL; and the audiogram in 2015 showed "…a significant deterioration in the hearing in both ears with the configuration suggestive of further noise exposure."

On February 23, 2016, Compensation Services advised the worker that they were unable to provide further coverage for hearing aids or related services. Compensation Services indicated that hearing test results from 1987 to 2015 were reviewed in consultation with an ENT consultant and identified hearing loss. However, the audiogram completed following his transition into the laboratory in 1993 noted moderate hearing loss in his left ear only, with early warning signs of loss in his right ear. Compensation Services noted that occupational NIHL is typically symmetrical but they were unable to establish a work-related cause for the asymmetry in his hearing, and in the absence of an occupational reason, they could not relate the hearing loss in his left ear to his employment. As such, the previous decision to provide hearing aid coverage was in error and they were unable to accept ongoing responsibility for the left hearing aid. Compensation Services also advised that as further deterioration in hearing would not occur as a result of prior noise exposure once an individual was removed from the noxious noise, they were unable to find that the need for a right hearing aid was the result of noise exposure at work.

On March 18, 2016, the worker met with his WCB adjudicator and submitted further information with respect to his claim, including a list of his job duties over his years of employment which were particularly noisy and pictures of some of the equipment he used while performing those duties. On July 14, 2016, Compensation Services advised the worker that the decision remained that his claim was accepted for hearing loss, but they were unable to authorize coverage for hearing aids. A further letter was sent by a WCB supervisor on August 5, 2016, confirming the decision that no responsibility was accepted for bilateral hearing aids.

On February 13, 2017, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that the WCB had accepted he had NIHL, but after speaking to current employees at the worksite, had concluded there was no evidence he was exposed to noxious noise after 1990. The worker submitted that the current supervisors in the worksite would not be aware of the conditions before he retired and that it was not always possible to wear hearing protection. On April 13, 2017, the employer's representative provided a submission in support of Compensation Services' decision to deny entitlement to coverage for hearing aids, and on April 22, 2017, the worker responded to that submission.

On May 1, 2017, Review Office determined that there was no entitlement to hearing aids. Review Office agreed with Compensation Services' decision that considering the new information with respect to the worker's work history and environment, his asymmetrical hearing loss as shown on the November 2008 audiogram was not due to occupational exposure. As a result, Review Office agreed with the decision that the original coverage provided for a left hearing aid was in error. Review Office noted that the treating audiologist had recommended bilateral hearing aids in November 2015 as the worker's hearing loss had "substantially progressed" since 2009. However, as the worker had retired in 2004, the changes in the worker's hearing necessitating the use of hearing aids were not related to his claim and he was not entitled to coverage for hearing aids.

On September 25, 2018, the worker contacted Review Office to advise that he had been speaking with a former co-worker who had worked in the same area and performed similar job duties. The worker noted that the co-worker had an accepted claim for NIHL with coverage for hearing aids, and requested that the May 1, 2017 decision be reconsidered. On November 2, 2018, a submission was received from the employer's representative, and on December 3, 2018, the worker withdrew his request for reconsideration in order to gather more information.

On January 21, 2019, the worker re-submitted his request for reconsideration to Review Office. With his request, the worker submitted a November 29, 2018 report from his treating audiologist, who opined that the worker's asymmetrical hearing loss was likely due to job duties which required him to drive in a truck with the windows down and would have exposed the worker's left ear to more noise. The worker also submitted information detailing attempts made to locate noise level readings for his worksite and to obtain information regarding the co-worker who had an accepted claim. On March 18, 2019, the employer's representative provided a submission in support of the Review Office decision, and on March 25, 2019, the worker responded to that submission.

On April 2, 2019, following review of the new information, Review Office determined that there was no entitlement to coverage for hearing aids. Review Office concluded that in the absence of noise level testing information for the laboratory worksite, any exposure to noxious noise at that site would likely have been reduced to a safe level by the use of hearing protection as required by the employer. Review Office further found that as the worker retired in 2004, the changes in his hearing, as noted in audiograms in 2008 and 2015 and necessitating the request for hearing aids, were not related to his work environment.

On December 19, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission, and a file review was arranged.

Following the file review, the appeal panel requested that materials which were to have been attached to the written submission from the worker's representative be forwarded to the parties for their comment. On May 26, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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. As the date of accident is identified as January 8, 1987, the applicable legislation is the Act as it existed at that time.

Subsection 4(1) of the Act provided that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.

Subsection 27(1) of the Act as it read in 1987 provided as follows:

Treatment in addition to compensation 

27(1) In addition to the other compensation provided by this Part, the board may provide for the injured worker such medical, surgical, and hospital treatment, transportation, nursing, attendant care, medicines, crutches, and apparatus, including artificial members, as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury; and the board may adopt rules and regulations with respect to furnishing medical aid to injured workers entitled thereto, and for the payment thereof.

WCB Policy 44.20.50.20.02, 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 between May 29, 1985 and March 31, 2000, where the initial decision is made on or after October 1, 1995 and the date of notification is prior to October 1, 2013. The relevant time period for this claim falls between these dates, and as such, the Policy applies to this case.

The Policy states, in part, as follows:

2. For a claim to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half). 

… 

5. When a claim for hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker will 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 assisted by a worker advisor, who provided a written submission in support of his appeal.

The worker's position was that he is entitled to coverage for bilateral hearing aids because of harmful workplace noise exposure throughout his tenure with the employer, which spanned approximately 37 years, ending in 2004.

The worker's representative submitted that as this is an accepted claim for bilateral NIHL with an accident date of January 8, 1987, being the first audiometric test date, the panel must accept that the worker's noise exposure prior to that date satisfied the noise level thresholds identified in the Policy.

It was submitted that paragraph 5 of the Policy identifies two prerequisites for coverage of a hearing aid or aids, and the mandatory language of that paragraph creates an entitlement to coverage where both criteria are met. The representative submitted that as there is an accepted claim and an audiologist's recommendation of hearing aids for both ears, both criteria have been satisfied in this case. Accordingly, the panel should approve the worker's appeal, regardless of any non-work-related contributions or the timing of the recommended hearing aid use.

The worker's representative noted that this interpretive approach was consistent with what had been applied in several prior Appeal Commission decisions, some of which were attached to his submission. While recognizing that the panel was not bound by precedent cases, the representative urged the panel to adopt that interpretation of paragraph 5 of the Policy. The representative referred in particular to the majority's reasoning in Appeal Commission Decision No. 42/12, including their comment that if the Board had intended to limit entitlement to work-related hearing loss, they could have inserted the phrase "in respect of the compensable hearing loss" after the words "hearing aid(s)" in paragraph 5, and to the majority's finding that in the absence of this type of clear direction, the Policy entitled the worker to a hearing aid in similar fact circumstances to those in this case. The representative submitted that while the Board has amended the hearing loss policy several times since 1985, they have not chosen to add in clarifying language with respect to hearing aid entitlement, and the majority's reasoning should therefore be applied.

In the alternative, the worker's representative argued that Review Office's approach disregards the extent to which work-related hearing loss may contribute to the need for hearing aids, even when that component of the hearing loss alone may fall only slightly short of creating the need for a hearing aid or aids. The representative submitted that the panel should approve coverage for bilateral hearing aids on the basis that but for the worker's occupational-induced hearing loss, it appeared the worker would not have required hearing aids when recommended.

Finally, the worker's representative submitted that if the panel felt it necessary to consider the worker's actual occupational noise exposure while working in the testing laboratory from 1990 to 2004, the worker relied on the written descriptions he had provided of his work duties and environment during that time. The representative further noted, with reference to information he had provided with respect to hearing protection, that the worker's occasional or possibly even frequent use of hearing protection in the laboratory environment did not necessarily protect him from harmful workplace noise.

Employer's Position

The employer was represented by an advocate, who provided a written submission in response to the worker's appeal.

The employer's position was that they were in agreement with the decision that the worker was not entitled to hearing aids, as his hearing loss condition did not meet the required criteria under the Policy. The employer's advocate submitted that the worker's asymmetrical hearing loss, and his need for bilateral hearing aids long after his exposure to noxious noise ceased, do not relate to his employment activities.

The employer's advocate noted that the worker's claim was initially accepted for a left ear hearing aid only, but the worker did not actually purchase a hearing aid as his hearing was not that bad. The advocate submitted that the decision to provide a left hearing aid was rescinded in 2016, following the worker's subsequent request for bilateral hearing aids and further investigation to address that request.

The employer's advocate argued that based on the wording of the 2016 decision, the WCB should have reversed their acceptance of the claim. It was noted that Compensation Services indicated that by 1993, moderate hearing loss was in the left ear only, and that hearing loss is typically symmetrical. Compensation Services further indicated that in the absence of a work-related cause for the asymmetry in the worker's hearing, they were unable to relate the hearing loss in the worker's left ear to his employment. The advocate submitted that although the decision specifically indicated that no left hearing aid would be provided, Compensation Services' wording indicated, in essence, that the claim was not acceptable given the asymmetrical nature of hearing loss.

The employer's advocate further submitted that while there was no workplace explanation for the hearing loss in one ear, there was a non-occupational explanation for the worker's unilateral left-sided hearing loss, being a history of right-handed gun shooting.

The employer's advocate further commented that hearing does not deteriorate after an individual is removed from noxious noise. The worker's hearing, however, did significantly deteriorate after he was no longer exposed to occupational noise. The advocate submitted that the 2015 audiogram was the first to show a significant deterioration in hearing in both ears, which was long after the worker had moved to a quieter position in 1987 and long after his retirement in 2004. In the employer's view, the decline in the worker's hearing and resulting need for bilateral hearing aids therefore cannot be attributed to the worker's employment activities.

Commenting on the prior Appeal Commission decisions which had been referred to by the worker's representative, the employer's advocate noted that each case is decided on its merits and the panel is not bound by prior appeal decisions. With respect to Decision No. 42/12, the advocate asked that the panel accept the dissenting reasons in that case. It was submitted that the dissenting commissioner interpreted the Policy in a manner consistent with how the Act is generally applied, noting specifically the language in WCB Policy 44.120.10, Medical Aid, that the board will generally pay for medically prescribed treatment and prosthetic devices "when required by reason of a compensable injury." The advocate submitted that the dissenting commissioner's "well-reasoned interpretation" fit this case, and urged the panel to agree with that interpretation rather than strict adherence to a "poorly worded policy incommensurate with actual WCB practices."

Analysis

This appeal concerns whether or not the WCB is responsible for the provision of hearing aids to the worker as a result of employment-related hearing loss. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker is entitled to hearing aids under the Policy. The panel is able to make that finding, for the reasons that follow.

The worker has an accepted claim for bilateral noise-induced hearing loss. The worker's claim for NIHL in both ears was accepted on September 3, 2009, at which time the worker was advised that he was entitled to a hearing aid for his left ear. In late 2015, a further audiogram was provided indicating a deterioration in the worker's hearing and the worker requested bilateral hearing aids. Compensation Services conducted a further review of the worker's claim, and advised the worker, on February 23, 2016, that he was not entitled to further coverage for hearing aids, as they were unable to relate his hearing loss and need for hearing aids to his employment. The worker's claim nevertheless remained accepted, as was confirmed by Compensation Services in their further decision dated July 14, 2016.

The panel notes that while the employer's representative submitted that Compensation Services had in essence indicated, by their wording, that the worker's claim was not acceptable, Compensation Services specifically stated in their July 14, 2016 decision that after a thorough review of the claim and of all the information obtained, they had "…accepted your claim for hearing loss" and "…the decision remains your claim is accepted for hearing loss."

The panel further notes that the evidence indicates the worker was accommodated with somewhat lighter job duties due to a back injury in 1990. Based on the evidence which is before us, the panel is unable to establish the worker's ongoing exposure to noxious noise in the performance of those duties from 1990 through to his retirement in 2004, and is unable to attribute the deterioration in the worker's hearing to any such exposure. The panel accepts, however, that the worker's hearing loss was due, at least in part, to his earlier exposure to noxious noise in the workplace and his compensable injury. The panel notes that the worker's claim related to a loss of hearing in both ears, and there was sufficient evidence for the WCB to accept the claim based on the worker's exposure to noxious noise in the workplace.

The panel is satisfied that the medical and other information on file supports that the hearing loss in the worker's left and right ears as identified in the audiograms has a significant or material sensorineural component which is work-related. The worker had NIHL in both ears at the time of the 1987 audiogram. In 2015, the combined effect of his work-related hearing loss and non-compensable deterioration in his hearing caused the worker's audiologist to recommend the use of a hearing aid for both ears. The panel is satisfied that but for the workplace exposure, the worker would not have required the use of hearing aids for both ears.

The panel notes that paragraph 5 of the Policy contains mandatory language in respect of the 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 will 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 from a specialist. Both of these prerequisites are met in this case.

On the basis of the WCB's acceptance in 2008 that the worker had sufficient workplace exposure to noxious noise to allow his claim for bilateral NIHL and subsequent confirmation of that acceptance, and the recommendation from the audiologist in 2015 that the worker required bilateral hearing aids, the panel is satisfied that the requirements of the Policy have been met. While the panel is not bound by previous decisions of the Appeal Commission in other cases, the panel notes that our decision in this case is consistent with the reasoning and interpretation of the majority in Appeal Commission Decision No. 42/12.

The panel further notes that if the WCB intended that the Policy be interpreted differently than it was in the majority reasons in Appeal Commission Decision No. 42/12, dated March 26, 2012, the Board could have amended the Policy to clarify its meaning as indicated in those reasons. This has not been done.

As a result, the panel finds, on a balance of probabilities, that the worker requires hearing aids for both his left and right ear as a result of his exposure to workplace noise. The panel therefore finds that the worker is entitled to coverage for hearing aids.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of July, 2020