Decision #82/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to replacement hearing aids. A file review was held on May 19, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to replacement hearing aids.
The worker is not entitled to replacement hearing aids.
The worker filed a claim with the WCB on June 14, 2003 for hearing loss. He reported noticing a gradual loss of hearing approximately 10 years previously and attributed this to his job duties with the employer. Included with the worker’s hearing loss report was an audiogram, dated June 14, 2003, indicating the worker had “mild sloping to moderately-severe sensorineural hearing loss bilaterally” and recommending hearing aids for both ears.
On January 14, 2004, the WCB advised the worker his claim was acceptable and he was provided with bilateral hearing aids.
On June 3, 2009, the worker was provided with a replacement for his left hearing aid and on May 4, 2010, he was provided with a replacement for his right hearing aid. On August 24, 2015, the WCB approved the replacement of both hearing aids for the worker.
The worker’s audiologist contacted the WCB on May 2, 2018 to advise the worker was having difficulty with his right hearing aid. The WCB approved repair. On December 6, 2018, the worker contacted the WCB and advised that his hearing aids are not working correctly and requested replacement of both aids. The WCB advised the worker that pursuant to the WCB’s policy, hearing aids are not normally considered for replacement until they have been in use for five years or more. The worker noted that he felt hearing aids with newer digital technology would be of more benefit to him but was again advised of the WCB’s five year replacement policy for hearing aids.
On February 6, 2019, the WCB spoke with the worker’s treating audiologist. The audiologist advised the worker had made an appointment for a reassessment of his hearing with their office as he was frustrated with his current hearing aids. The audiologist confirmed to the WCB that the worker’s hearing aids were working correctly and to the manufacturer’s specifications; however, the worker was having difficulty communicating and the audiologist believed hearing aids with newer digital technology would assist. The WCB explained that the policy does not allow for replacement of hearing aids due to changes in technology.
On February 27, 2019, the WCB advised the worker that he was not entitled to replacement hearing aids. The worker requested reconsideration of the WCB’s decision to Review Office on March 19, 2019. In his submission, the worker advised that he is unable to hear with his current hearing aids and was advised by his audiologist that only the newer digital aids would help with his hearing loss.
Review Office in a decision dated April 16, 2019 confirmed that the worker was not entitled to replacement hearing aids. Review Office acknowledged that the worker may benefit from the newer digital technology available; however, as both of his current hearing aids were found to be functioning normally and were not damaged, he was not entitled to replacement hearing aids until his current hearing aids have reached five years of use.
The worker appealed the Review Office decision to the Appeal Commission, received January 17, 2020. A file review took place on May 19, 2020. Following the review, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and provided to the interested parties for comment. On July 15, 2020, the appeal panel met again to discuss the case and render its final decision on the appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act") and regulations, and by 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 to the worker by the WCB. Section 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
WCB Policy 184.108.40.206.02, Noise-Induced Hearing Loss (the "Hearing Loss Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise that causes hearing loss. With respect to provision of hearing aids, the Hearing Loss Policy sets out that:
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.
WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy") deals with the provision of recommended devices, including hearing aids. The Policy provides in Schedule B that the WCB will fund medical devices and appliances if:
1. The medical device or appliance is prescribed or recommended by a recognized health care provider;
2. The need for the medical device and/or appliance is the result of a compensable injury;
3. The Board determines that the medical device and/or appliance will likely be or has been effective in the treatment or ongoing care of a compensable injury; and
4. The Board considers the cost of the medical device and/or appliance to be reasonable.
Schedule B goes on to set out that the worker is responsible for the care of the medical device or appliance and the WCB may pay for repairs or replacement due to normal wear and tear, damage from accidental causes or changes in the physical condition of the worker or the fit of the medical device or appliance. Schedule B also states that the WCB may determine the frequency of repairs or replacements over time.
The worker’s position is set out in his letter dated October 22, 2019, attached to the appeal form received January 17, 2020. In that letter, the worker outlines his position that he should be entitled to replacement hearing aids due to his inability to hear using the current hearing aids supplied in 2015. He stated, in respect of his December 21, 2018 hearing test:
“The audiologist asked me to repeat the words that he gave me to hear. Every single word he asked me to repeat I could NOT understand ANY of them. All I hear was noise. So when he said I was having communication difficulties was an understatement. I CANNOT hear ANYTHING in my left [ear]….As far as communicating with anyone is not possible with only one hearing aid.”
The worker notes that although the audiologist said the hearing aids are functioning according to manufacturer specifications, the hearings aid are not allowing him to hear or communicate effectively. The worker stated that the audiologist recommended hearing aids with Bluetooth functionality as these would assist with his communication.
The worker therefore submits that the WCB should provide replacement hearing aids with Bluetooth functionality to better assist him in his hearing and communication.
The employer provided a written submission to the appeal panel dated May 12, 2020. In the submission the employer outlines its position that the Review Office decision of April 16, 2019 should be upheld as the worker’s hearing aids are fully functioning and were provided less than 5 years previously. The employer goes on to suggest that difficulties in discerning speech may be related to causes other than a faulty hearing aid.
The employer’s position is that WCB policy should be applied as outlined by the Review Office and that under the policy, the worker was not entitled to a replacement of hearing aids.
In order for the worker’s appeal to succeed, the panel must determine that the worker required replacement of his hearing aids in order to cure and provide relief from the noise induced occupational hearing loss. The panel was not able to make that finding for the reasons that follow.
Although the worker claimed deterioration of his hearing ability, the audiological evidence before us does not support that claim; rather, it is the worker’s speech recognition ability that has deteriorated over time.
The WCB ENT specialist provided further information at the panel’s request, noting in a memorandum dated June 25, 2020 that the worker has experienced a significant deterioration in his speech recognition ability. The ENT specialist explained that speech discrimination or recognition ability is a function of the inner ear and the brain to process and understand spoken words, and that hearing aids of any type “…have a limited ability to improve this problem.”
Further, the panel noted that the worker’s treating audiologist confirmed that the worker’s current hearing aids were functioning to specifications as of February 9, 2019 and did not require repair. The treating audiologist suggested that the worker would benefit from hearing aids with Bluetooth capabilities, but the WCB ENT specialist outlined that the potential benefit to the worker from such technology “cannot be predicted” unless the worker uses the aids for a while. Further, the WCB ENT specialist confirmed that Bluetooth-capable hearing aids will not restore the worker’s hearing back to normal.
The WCB has determined, in accordance with the provisions of the Medical Aid Policy that the schedule for replacement of hearing aids is to be every 5 years. Absent damage or need for repair, the worker would be entitled to replacement of hearing aids after August 24, 2020.
The evidence before the panel does not support, on a balance of probabilities, that there is any basis to provide the worker with replacement hearing aids outside the standard WCB replacement period of 5 years.
The worker is not therefore entitled to replacement hearing aids until after August 24, 2020.
The 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 14th day of August, 2020