Decision #03/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A file review was held on November 10, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On September 5, 2019, the worker filed a Worker Hearing Loss Report with the WCB, reporting hearing loss which he attributed to his 40 years of employment with the employer. The worker noted on his report that he used ear protection at work from the time it became available until his retirement in 2006.
On September 17, 2019, the worker spoke with the WCB and confirmed the information in his Report. The worker advised that he had his hearing tested approximately 25 years earlier and had been told he was a candidate for hearing aids but did not bother. The WCB advised the worker of the criteria to be met for his claim to be accepted for noise-induced hearing loss ("NIHL") and that they required a complete hearing assessment done by a certified audiologist.
The employer provided its Employer Hearing Loss Report to the WCB on October 4, 2019. The employer confirmed the worker began employment with the employer in 1966 and retired on January 31, 2006. The employer further noted that they implemented a hearing protection program in 1987. The employer also provided a copy of sound level testing done September 17, 1992 in the area where the worker performed his job duties, as well as a Sound Level Survey Form for the worker dated September 16, 1992.
On October 24, 2019, the worker underwent a hearing assessment. The audiogram report from that assessment indicated the worker had moderately-severe sensorineural hearing loss bilaterally and recommended binaural hearing aids.
On October 31, 2019, the audiogram and the worker's file were reviewed by the WCB Ear, Nose and Throat ("ENT") consultant, who opined that the audiogram had a "cookie bite" configuration which was "…not typical or diagnostic of NIHL," and that in the absence of earlier audiograms, he could not conclude the worker had NIHL. On December 2, 2019, the WCB's Compensation Services advised the worker that they were unable to accept responsibility for his claim, as the available audiogram was not diagnostic of NIHL and they were unable to determine his hearing loss was the result of noise exposure at work.
On May 4, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted a February 4, 2020 letter from his treating audiologist, who noted that it was his understanding that a cookie bite configuration is "…related to a genetically inherited condition." The audiologist went on to opine that the worker's hearing loss was "a sloping configuration" and that with "…decades of noise in the workplace, it would seem logical that the cause of [the worker's] hearing loss is related to noise exposure."
On June 4, 2020, Review Office determined the worker's claim for NIHL was not acceptable. Review Office found the worker's audiogram did not indicate NIHL, and in the absence of other audiograms to indicate NIHL, the worker's claim was not acceptable.
On July 2, 2020, the worker appealed the Review Office decision to the Appeal Commission and a file review was arranged.
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.
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 188.8.131.52, 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, that:
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 was self-represented, and provided a written submission in support of his appeal.
The worker submitted that the evidence established that all the requirements for a hearing loss claim had been met and the Review Office decision should be overturned.
The worker submitted that he had provided letters from his treating audiologist and an ENT specialist which supported his claim. The worker noted that both of these specialists concluded that his hearing loss was a "sloping configuration," not a "cookie bite" configuration as one WCB person had decided.
The worker further submitted that the evidence included sound check levels at the workplace of 111.2 decibels, which was well over the 85 decibels that were required by the WCB. He noted that he worked in this environment for 8 hours a day for almost 40 years, which was far more than the 2 years that were required by the WCB.
In conclusion, the worker submitted that 40 years of working in an extremely noisy work environment, without ear protection being available until the last few years, had caused his hearing loss, and his claim should be accepted for hearing aids.
The employer did not participate in the appeal.
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 due to exposure to high levels of noxious noise as set out in the Policy. The panel is unable to make that finding, for the reasons that follow.
The Policy provides that not all hearing loss is caused by exposure to noise at work. The Policy further sets out the criteria which are to be met in order to establish that a NIHL occurred at work.
Based on our review of all of the information which is before us, the panel accepts that the worker has hearing loss, but is unable to connect the worker's hearing loss to his employment.
The panel accepts that the worker worked in a very loud environment. The panel notes that the only testing of noise levels to which the worker would have been exposed in the course of his employment was in 1992, and indicates that at this juncture at least, the worker was working in a work environment where there was a significant amount of noxious noise.
The panel is unable to find, however, that the medical information on file supports that the worker suffered NIHL as a result of his exposure to any such noise. In this regard, the panel is not satisfied, based on the available evidence, that the worker's hearing loss and test results are consistent with NIHL.
It is the panel's understanding that test results which indicate NIHL have a unique "reverse checkmark" type of configuration, with a typical notch at the 4000 Hz level that is characteristic of that kind of hearing loss. The panel is of the view that the October 24, 2019 audiogram does not contain such a pattern or configuration for either ear.
The panel notes that the October 24, 2019 audiogram is the only audiogram on file. The worker indicated that he had been tested approximately 25 years earlier than that, but no earlier audiograms or test results were located.
The panel notes that the WCB ENT consultant opined in his October 31, 2019 report that the October 24, 2019 audiogram had a "cookie-bite" configuration, which was not typical or diagnostic of NIHL, and that in the absence of earlier audiograms, he could not conclude that the worker had NIHL.
The panel acknowledges the reports of the treating audiologist and an ENT specialist, dated February 4, 2020 and April 24, 2020, respectively, who disagreed with the conclusion of the WCB ENT consultant. The audiologist thus opined that "In my professional opinion, his hearing loss is a sloping configuration." As indicated above, the panel is unable to find that this "sloping configuration" is consistent with the reverse checkmark type of configuration which is characteristic of NIHL. In addition, while the audiologist went on to state that "With decades of noise exposure in the workplace, it would seem logical that the cause of [the worker's] hearing loss is related to noise exposure," the panel is unable to find that this is sufficient to connect the worker's hearing loss to his employment.
The panel is further satisfied that the ENT specialist's reference to the worker's audiogram as showing "bilateral mild to moderate low frequency sensorineural loss dropping to severe between 2000 and 3000 and improving slightly in the higher tones…" is similarly inconsistent with the distinct pattern and characteristic of NIHL, where the frequencies around the 4000 Hz level are typically the most affected and the distinctive audiometric notch is at or around that level. While the ENT specialist went on to opine that the worker's hearing loss was "…secondary to noise and certainly the decibel level was very excessive…," the panel is unable to find that this is sufficient under the Policy to establish that the worker suffered a NIHL as a result of his employment.
The worker retired from his employment in 2006, more than 12 years before filing his hearing loss claim and the date of his assessment and audiogram in 2019. Unfortunately, this significant gap of more than 12 years and the absence of any other audiogram make it particularly difficult to establish a relationship between the worker's hearing loss and his employment.
Based on the foregoing, the panel is unable to find that the worker's hearing loss and ongoing hearing problems were caused by or are related to his work or job duties. The panel therefore finds, on a balance of probabilities, that the worker did not sustain a NIHL during the course of his employment due to exposure to high levels of noxious noise as set out in the Policy, and the worker's claim is not acceptable.
The worker's appeal is accordingly dismissed.
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 8th day of January, 2021