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 hearing was held on October 28, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On December 10, 2018, the worker filed a Worker Hearing Loss Report with the WCB reporting hearing loss which he attributed to his employment with the employer. The worker reported that he first became aware of a hearing problem after a hearing test in 2007, and that his hearing loss had become increasingly noticeable "…during the past decade of retirement." The worker attributed his hearing loss to many noisy sources, particularly frequent close association to the operation of outboard motors in small boats. The worker provided details of his employment, noting from October 1972 to May 1991 he was exposed to loud noise while performing his job duties, with his duties from 1992 to his retirement in 2007 involving less exposure. Included with his report was a copy of an October 25, 2018 audiogram revealing a "…mild sloping to moderately severe sensorineural hearing loss bilaterally."

On December 20, 2018, the WCB contacted the worker to discuss his claim. The worker confirmed his job duties and said he believed the reason the hearing loss in his left ear was worse could be related to the noise from the motors on the boats he used at work where his left ear would be facing the motor. He advised he used power tools at home, but wore hearing protection most of the time when using them, and that he shot right-handed while hunting.

On February 4, 2019, the employer provided copies of hearing reports for the worker from 2003 and 2006. The May 5, 2006 hearing report noted the worker was aware of his hearing difficulty, particularly in his left ear, and would be following up with his own healthcare provider.

The employer submitted an Employer Hearing Loss Report on July 9, 2019. The employer indicated the worker was exposed to noise intermittently. Hearing protection was provided by the employer starting in approximately 2000 for use with some of the work, but not for the work where most of the worker's exposure would have occurred.

On July 24, 2019, the worker's file was reviewed by the WCB's Ear, Nose and Throat (ENT) specialist. The specialist opined that the 2003 audiogram submitted by the employer indicated normal hearing in the worker's right ear and noise-induced hearing loss (NIHL) in his left ear; which the specialist attributed to the worker's history of right-handed firearm use, "unless there is an occupational explanation." The specialist further opined that "…a hearing aid is not needed for the right ear and the need for a left hearing aid would be on the basis of firearm use."

On August 27, 2019, the WCB advised the worker that his claim was not acceptable. The WCB noted that occupational NIHL is typically bilateral and symmetrical, and the hearing loss indicated by the worker's audiograms showed an asymmetric hearing loss, with the left ear being worse.

On September 9, 2019, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that his firearm use had been limited, and re-stated his position that the asymmetry in his hearing loss was primarily based on his having spent years operating small outboard-powered boats where his left ear was directed towards the motor and exposed to loud noise more than his right.

On December 3, 2019, Review Office determined that the worker's claim was not acceptable. Review Office noted that occupational NIHL is typically bilateral and symmetrical. Review Office acknowledged the worker's explanation for his left-sided hearing loss, but did not find that his explanation satisfactorily explained his hearing loss. Review Office found that the worker's firearm use, even if it was limited, was the most likely cause of his left-sided hearing loss.

On January 30, 2020, the worker appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on October 28, 2020.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act ("GECA"). Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment or disabled by reason of an industrial disease due to the nature of the employment is entitled to compensation.

"Industrial disease" is defined in section 2 of the GECA as any disease in respect of which compensation is payable under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen.

Pursuant to subsection 4(2) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act of Manitoba (the "Act").

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Under subsection 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.

With respect to claims for hearing loss, the injury can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise

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:

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 decibel 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 was self-represented, and provided a written submission in advance of the hearing. The worker made an oral submission, and responded to questions from the panel.

The worker submitted that his hearing loss was a result of his over 30 years of employment with the employer, and his claim should be accepted.

The worker stated that to his knowledge, no hearing tests were carried out by the employer at or near the onset of his employment. His hearing was first measured and his hearing loss identified in 2003, then confirmed by an audiologist in 2006, one year prior to his retirement in 2007. The worker noted that while this makes it a little more difficult to be precise with respect to some details, he had a pretty good feel for what had happened over the years and was clear in his mind as to how his hearing loss developed and what caused it.

The worker submitted that he was exposed to a variety of sources of workplace noise over the course of his employment, many of which were capable of causing significant hearing loss. The worker attributed his hearing loss, in particular, to thousands of hours he spent operating small outboard-powered boats, primarily between 1973 and 1990. The worker noted that particularly during those 18 or so years between 1973 and 1990, he would usually be using the boats for several hours, three to five days a week. The worker explained that he would be sitting in the right rear corner of the boat, using his left hand to steer the boat. He noted that:

But outboards, from what I can find in the information available, probably put out somewhere between 90 and 100, 110 even decibels of noise.

And sitting in the position that we sat to steer these boats and run these motors, that places, in this case, my left ear about a meter or less away from the outboard for extended periods of time while we're going across lakes and then running these outboards.

The worker noted that the basic issue for the WCB in denying his claim was that his hearing loss was asymmetric, which they attributed to his firearm use. The worker noted that he had used a firearm only very occasionally over a period of a few years when he was a teenager. He had shot a very few times, using a single shot rifle.

Employer's Position

The employer was represented by an Occupational Health & Safety Advisor.

The employer's representative advised that the employer fully supported the worker on his appeal. The representative stated that she totally agreed with what the worker had said in his presentation and in documentation on file.

The representative submitted that given the amount of time the worker would have spent operating the boat over the years, sitting next to the motor, with one ear closer to the motor than the other, it really made sense he would have hearing loss in his left ear. She said she could confirm from personal experience that the motors were very loud, especially when you were seated next to them, and it was not possible to carry on any kind of conversation with the operator, even by yelling. If you wanted to speak with the operator, you had to wave your arms to get their attention, and get them to turn the motor down.

Analysis

The issue on this appeal is claim acceptability. The claim has been advanced on the basis of long-term exposure to noxious levels of occupational noise resulting in NIHL. For the appeal to be successful, the panel must find that the worker sustained NIHL during the course of his employment with the accident employer due to exposure to high levels of noxious noise as set out in the Policy. The panel is able to make that finding, for the reasons that follow.

The criteria under the Policy provide that 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 8 hours of exposure on a daily basis. For every increase in noise level of 3 decibels, the required exposure time is reduced by half. That is the threshold that must be met. Based on the evidence before us, the panel is satisfied that this noise threshold has been met.

The worker's evidence at the hearing was that between 1973 and 1990, he would usually be using the boats for several hours, three to five days a week. The worker further indicated that

Some weeks it would be more hours than other weeks, and this would go on more or less for six months a year, the open water season…which normally started around the beginning of May and would continue to approximately the end of October.

And so each week during that period, so roughly 25, 26 weeks of the year on average…I'd be going out…sort of three to four, sometimes five days a week. Sometimes you'd go out on weekends, because I was more or less living on site during those particular years for the entire…season.

The panel notes that the employer's representative indicated her agreement with the worker's evidence and description of the positioning and operation of the outboard motor, and level of noise to which the worker would have been exposed.

The panel notes that the worker's reference to the noise level produced by boats is supported by other information on file, which indicates a range of noise levels from outboard motors of 100 to 110 decibels. The panel notes that the evidence also indicates that the worker would not be using hearing protection when using the boats and operating the outboard motors. The worker's evidence was that he would be using other tools and equipment at the same time and during the rest of the year, which were also very noisy.

Applying the provisions of the Policy with respect to noise levels in excess of the minimum, daily noise exposure of an average of 91 decibels would be required to meet the threshold at 2 hours per day and an average of 94 decibels would be required at one hour per day.

Based on our review of the documentary evidence on file and the oral evidence and submissions at the hearing, the panel finds, on a balance of probabilities, that the worker's workplace noise exposure over the years from 1973 to 1990 as it related to his left ear was sufficient to meet and exceed the minimum thresholds required for a claim for NIHL as set out in the Policy.

The panel notes that the WCB ENT consultant concluded in his July 24, 2019 report that the worker's audiogram showed normal hearing in the worker's right ear and NIHL in his left ear, which would be attributed to right-handed firearm use "unless there is an occupational explanation."

The panel recognizes that it is unusual in NIHL cases for there to be a significant difference in hearing loss between the right and left ears. The panel is satisfied that the asymmetry in this instance is accounted for by the nature of the worker's job duties and his positioning as he performed those duties.

Accordingly, and on the basis of the panel's finding that the evidence supports that the worker has occupational NIHL in his left ear, the panel concludes that the worker's claim is acceptable for a left ear NIHL.

The panel therefore finds that the worker's claim is acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 24th day of December, 2020