The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on November 17, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On January 22, 2019, the worker filed a Worker Hearing Loss Report with the WCB. He reported a gradual hearing loss, which he first noticed in 2016, he related to his 32-year employment with the employer. The worker noted he had been wearing hearing protection at work for 30 years. The employer submitted an Employer Hearing Loss Report on February 12, 2019 and on February 13, 2019, provided the WCB with the worker’s audiograms from 1987 to the present.

The WCB contacted the worker on February 15, 2019 to discuss his claim. The worker confirmed his employment history and his job duties, including advising he is exposed to noise 8 hours a day but uses hearing protection. The worker further advised he had hearing tests performed regularly at work and also had one done privately. He confirmed that he did not have any injuries or surgeries to his ears and noted he occasionally had tinnitus, greater on the left side than the right. The WCB received a copy of the worker’s February 20, 2019 audiogram. The audiologist noted “Hearing test indicates…normal sloping to moderate, rising to normal sensorineural hearing loss on the right and normal sloping to moderate severe essentially sensorineural HL (hearing loss) on the left.”

The WCB Ear, Nose and Throat (ENT) specialist reviewed the worker’s file on February 26, 2019 and opined the worker’s audiograms indicated noise induced hearing loss (NIHL), with an audiogram in 1987 showing signs of NIHL in the worker’s left ear and bilateral NIHL shown on an audiogram in 2006. On March 28, 2019, the WCB contacted the worker for further information on why his hearing deteriorated in 2005 or 2006. The worker advised that may have been when he transitioned to different job duties or that time period was when a portion of his job duties were performed with a piece of loud equipment. At the request of the WCB, the employer provided noise level reports on April 25, 2019 and on April 26, 2019 provided information specific to the worker’s jobsite location. The information provided by the employer indicated the noise level of the worker’s jobsite was 86 decibels, reduced to 73 decibels with the use of earplugs, 71.5 decibels with the use of earmuffs and 66.8 with the use of both.

On May 16, 2019, the worker was advised by the WCB that his claim was not acceptable. The WCB advised the worker the medical information on his file indicated NIHL in 2006 however, there was no evidence to support an occupational factor that contributed to the deterioration in his hearing. Further, the WCB advised the noise level report provided by the employer indicated his exposure to noxious noise would have been reduced below the threshold in the WCB’s policy as the worker confirmed he wore hearing protection since the mid 1990s.

The worker requested reconsideration of the WCB’s decision to Review Office on August 30, 2019. The worker noted his disagreement with the decision to deny his claim as he related his hearing loss to not having hearing protection at work when he first started his employment. He noted that he frequently could not hear when he was paged over the intercom and as a result, did not use the provided ear plugs. He further noted the addition of a noisy piece of equipment into his job site caused a constant hum even with hearing protection.

Review Office found on November 1, 2019, that the worker’s claim was not acceptable. Review Office accepted the opinion of the WCB’s ENT specialist that the worker’s audiograms showed signs of asymmetrical NIHL in 1987 in the left ear but found no evidence to support this hearing loss was related to the worker’s job duties. Further, Review Office accepted the WCB ENT specialist’s opinion the worker had bilateral NIHL, indicated on an audiogram in 2006. However, Review Office noted the worker and the employer both provided evidence the worker wore hearing protection commencing in the mid 1990s and as such, his exposure to noxious noise would have been reduced to below the threshold levels in the WCB’s policy.

The worker’s representative filed an appeal with the Appeal Commission on April 1, 2020. A teleconference hearing was arranged for November 17, 2020.

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.

Subsection 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.

"Accident" is defined in subsection 1(1) of the Act 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.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss, where the date of notification of the claim is on or after October 1, 2013. The Policy states, in part, as follows:

3. 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.

Worker's Position

The worker attended the hearing via teleconference and was assisted by a Worker Advisor.

In brief, the worker's position on appeal was that the Review Office did not take into account his long-term exposure to noxious noise levels during the course of his employment.

The worker provided details of his work duties with the employer, including the machinery with which, or near which, he worked, the noise levels of the machinery and his location in relation to the machinery. Although the worker could not identify a particular cause or machine, he submitted that a multitude of job duties involving loud machinery was the cause of his hearing loss.

Employer's Position

The worker's employer did not participate in the hearing.

Analysis

The worker is appealing the WCB decision that his claim for hearing loss is not acceptable. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a noise-induced hearing loss due to his exposure to high levels of noxious noise during his employment, in accordance with the Policy. As noted, the Policy provides that, in order to be satisfied that a worker's hearing loss occurred at work, the worker must have been exposed to noxious noise at work for a minimum of two years, based generally upon an average of 85 decibels for eight hours of exposure on a daily basis. For every increase in noise level of three decibels, the required exposure time is reduced by half.

The worker began employment with this employer in October 1986. Audiometric records were provided commencing in May 1987, to the present. These tests identify when the worker’s hearing loss occurred and the panel notes that the worker’s hearing deteriorated in each ear at different rates.

The audiogram conducted in May 1987, approximately 8 months after commencement of employment, indicates that the worker had hearing loss in his left ear. The panel notes the loss of hearing in the left ear is not explained by the noise exposure in the work environment and appears to pre-date this employment. The panel also noted that the hearing in the worker’s left ear improved somewhat over time; it then deteriorated further, at a time when the worker’s job duties were relatively static.

With respect to the worker’s right ear, the worker attributed this hearing loss to employment activities such as exposure to noisy machines and not wearing hearing protection in the 1990s when he needed to remove his required hearing protection often to perform duties as a shop steward and first aid attendant. However, the right-ear hearing loss did not manifest until about 2006, several years after he ceased his shop steward and first aid attendant duties. There was insufficient evidence of noise exposure in the work environment at that time which would cause this hearing loss. Accordingly, the panel was unable to find a causal connection between the worker’s right-ear hearing loss and noise from the work environment.

In conclusion, the panel accepted that the worker suffered noise induced hearing loss, with loss in the left ear evident eight months after the commencement of employment and loss in the right ear evident in 2006, but was unable to find that the hearing loss was related to the worker’s workplace.

The panel therefore finds that, based on the evidence and on a balance of probabilities, the requirements of the Policy regarding noise-induced hearing loss have not been met and accordingly, a work-related injury has not been established. Therefore, the worker's claim for noise induced hearing loss is not acceptable and the appeal is dismissed.

Panel Members

K. Gilson, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Gilson - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of November, 2020