The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on January 14, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker submitted a Worker Hearing Loss Report and Work History Summary to the WCB on October 10, 2018, providing a list of employers from 1973 to their retirement in 2018 and relating their bilateral hearing loss to general noise exposure at work.

On October 22, 2018, the WCB contacted the worker to discuss their claim. The worker advised the WCB that they first became aware of their hearing loss in approximately 2000 and they did not take any medications. The worker also provided the WCB with details of their job duties with the various employers.

The worker advised they had hearing tests done while working for the third-party employer but had not had a test done recently. The WCB advised the worker they should obtain an updated audiogram and on October 25, 2018, the worker attended for a hearing test. The audiologist concluded the results showed the worker had “…mild to moderately-severe sensorineural hearing loss, bilaterally” and recommended bilateral hearing aids. Further, the audiologist noted “The hearing loss present is consistent possibly with the type and configuration of hearing loss where noise exposure may have been a contributing factor. Presbycusis and other medical/history factors may have also contributed.”

The WCB gathered information from the worker’s employers, including hearing loss reports and noise level assessments and on May 24, 2019, the worker’s file was reviewed by the WCB Ear, Nose and Throat (ENT) specialist. The ENT specialist noted the first audiogram indicating signs of noise induced hearing loss was in 1998 and a bilateral impairment calculation of 8.4% was provided, with two hearing aids recommended.

On August 15, 2019, the WCB advised the worker the claim was not acceptable. The WCB explained that in order for a claim for noise induced hearing loss to be accepted, the threshold requirement of noise exposure of at least 85 decibels for eight hours per day over a two-year period must be met, in addition to providing medical information that confirms noise induced hearing loss. The WCB confirmed that it could not establish that the worker was exposed to sufficient levels of noise to meet this requirement and as such, the claim was not acceptable.

The worker requested reconsideration of the WCB’s decision to Review Office on February 12, 2020. With the request, the worker provided additional employment information and noted their treating family physician advised they had information from a specialist that would be relevant to the claim. The WCB requested a copy of the information from the worker’s family physician, which was received on February 18, 2020. The March 2, 2000 specialist report noted the worker had “…a significant history of noise exposure” and an audiogram indicated “…mild bilateral sensorineural hearing loss.”

On February 25, 2020, Review Office found that the worker’s claim was not acceptable. Review Office acknowledged the audiogram of October 25, 2018 indicated the worker had noise induced hearing loss; however, it could not be established the worker was exposed to noxious noise at work so as to meet the criteria set out in the WCB Policy.

The worker filed an appeal with the Appeal Commission on July 13, 2020 and a teleconference hearing was arranged for January 14, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and 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. The Act defines “accident” in s 1(1) 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.

The WCB's Board of Directors has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), which provides, 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.”

Worker’s Position

The worker appeared at the hearing and made a submission on their own behalf, supported by the worker’s spouse. The worker relied as well upon a written submission to the appeal panel, received January 5, 2021, and the worker provided answers to questions posed by panel members.

The worker outlined their position that as a result of daily noise exposure in the course of carrying out their workplace duties over the course of 11.5 years working in noisy environments with a number of employers, they sustained NIHL. The worker believes that there is a direct causal link between the workplace exposures to noise and the diagnosed noise induced hearing loss, noting that outside of work hours, there was little to no opportunity to engage in other activities that could cause NIHL. The worker described their off-hours as consisting mostly of family time and sleeping.

The worker noted to the panel the impacts of the hearing loss sustained on their activities of daily living. The worker described to the panel that during the last position held with the third-party employer from October 2001 through December 2011, they were exposed daily to the noise of diesel engine “reefer” trucks that would stop for inspection at the gate where they worked. Hearing protection was not worn in this position, nor did the employer provide that it was required. The worker recalled that at some point in time during this employment, a noise exposure survey was conducted, requiring them to wear a device to measure noise exposure through the course of a day’s work. Further, the worker recalled that when the results of the survey were reviewed with the employer, there was comment regarding a number of instances where the readings were “off the charts”. On questioning by the panel members, the worker indicated that there was no policy change regarding use of hearing protection after these test results were obtained and reviewed by the employer.

The worker also described to the panel a concurrent part-time position held with a different employer from 2003-2007 where there was exposure to noise from refrigeration equipment. In that employment, the worker relied upon employer-issued foam earplugs as well as earmuffs that the worker provided. Although part-time, the worker noted they worked up to 40 hours weekly in this position.

The worker described to the panel exposure to noise in another concurrent employment environment where the worker was employed part-time between 2010-2014. The worker’s duties in that employment included loading trailers using a forklift, noting exposure to noise from both the forklift and the surrounding environment. The worker used both earplugs and earmuffs as hearing protection in this role.

In sum, the worker’s position is that as a result of daily noise exposure in the course of employment with a number of employers including the third-party employer, they developed NIHL and the claim should therefore be accepted.

Employer’s Position

The employer did not participate in the appeal.

Third Party’s Position

A former employer of the worker participated in the appeal as a third party represented by a disability management specialist, with its WCB specialist present as an observer. The third party’s representative made an oral submission to the panel as well as answering questions from panel members.

The third party’s position, as outlined by its representative, is that while the evidence establishes that the worker has noise induced hearing loss and that the worker’s employment history includes many years of employment with the third party employer, the evidence does not support a finding that the worker had sufficient noise exposure in the course of employment with the third party to meet the threshold set out in the Policy. The representative noted that the third party has in place a hearing protection policy that requires both signage to be in place and hearing protection to be used by employees where noise exposure levels exceed 84 decibels. The representative indicated that the third party employer agrees with the decisions reached by the WCB in respect of the worker’s claim for NIHL.

The representative confirmed the worker’s employment history with the third party employer as set out in the claim file documents. The worker was employed by the third party from 1973 to 2011 and in the gate clerk position for more than 10 years, from 2001 through 2011.

On questioning by members of the panel, the third party representative confirmed that there is no record of any noise level testing for the worker’s job duties, but noted that the third party employer has had a noise exposure policy in place since 1986 that requires use of hearing protection by all employees exposed to average noise levels of at least 84 decibels as well as posting of warning signage in those areas. The third-party employer’s representative suggested that if there were dosimeter readings to confirm that the noise levels were above that minimum threshold in the area where the worker was employed, the worker would have been required to wear hearing protection while at work. In light of the policy in place, the worker’s evidence that they were not required to wear hearing protection in this job suggests, the representative argued, that the average noise exposure was below that threshold.

Analysis

The issue on appeal is whether or not the claim is acceptable. For the panel to find that the claim is acceptable, it would have to determine that the worker’s hearing loss is the result of exposure to noise in the workplace. The panel was not able to make such a finding for the reasons that follow.

The panel is bound by the provisions of the WCB’s Noise Induced Hearing Loss Policy. The policy requires that there be audiogram evidence of noise induced hearing loss for a claim to be considered.

The evidence on file relating to the worker’s hearing loss includes an audiogram dated October 25, 2018. The audiogram report includes the comment that the testing demonstrates the worker has “mild sloping to moderately-severe high frequency sensorineural hearing loss, bilaterally.”  The WCB’s Ear Nose and Throat (ENT) consultant reviewed the worker’s audiological testing results on May 24, 2019 and agreed that the audiogram indicates the worker has noise induced hearing loss. Further, the ENT consultant noted that there was evidence on file of the worker’s noise induced hearing loss beginning as early as 1998.

While the evidence supports that the worker has bilateral NIHL, the panel must also determine whether or not the worker’s NIHL is caused by and the result of noise exposure in the workplace.  As noted above, the policy sets a threshold level of noise exposure in the workplace in order for a claim for NIHL to be accepted by the WCB. The threshold requires that it must be established a worker was exposed to hazardous noise at work above the specified threshold of no less than two years exposure, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis. For noise levels above 85 decibels, every increase of 3 decibels reduces the required exposure time by one-half. As an example, this means that the average noise level must be at least 88 dBA for 4 hours of daily exposure.

In this case, there is no specific evidence on the worker’s file with respect to workplace noise exposure measurements in the various circumstances where the worker was employed. The panel noted the worker has denied any noise exposure outside of work.

The worker testified as to the extent of their daily noise exposure at work in the various workplaces. The worker focused in particular on the exposure to noise in the final 10-plus years of employment with the third party employer, indicating that there was significant noise exposure through each 7.5 hour shift to the noise of diesel engine refrigerator trucks. The worker confirmed that hearing protection was not used or required in this workspace. The third party employer confirmed there is no evidence of noise survey results from this work area, but noted that the workplace hearing protection policy would have required hearing protection and posting of signage about the need for hearing protection if the noise exposure was greater than 84 decibels. This was not the case, however.  We find that the evidence relating to the worker’s employment with the third party employer does not support a finding that the worker’s daily average noise exposure in that employment would have exceeded the threshold required by the Policy to establish a claim for NIHL.

The worker also testified that in the concurrent part-time employment held from 2003-2007, there was exposure to noise from refrigeration equipment and that in the part-time employment held from 2010-2014, there was exposure to noise from forklift operation. The panel noted there is no evidence on file as to the specific level of noise exposure in the areas where the worker was employed, and also noted the worker’s testimony that he used hearing protection in the form of foam ear plugs in this employment, and later, also earmuffs for additional protection. There is no evidence before the panel as to the specific noise exposure levels in these workplace environments.

While we are satisfied that the evidence confirms the worker has noise induced hearing loss and that he was exposed to noisy work environments, the evidence is not sufficient to establish, on a balance of probabilities, that the worker’s hearing loss was the result of workplace exposure to noise.

On the basis of the documentary evidence reviewed and the oral evidence heard, the panel finds that the evidence does not establish that the worker’s workplace noise exposure was sufficient to meet the minimum threshold required for a claim for noise induced hearing loss as set out in the WCB Policy. Therefore, the panel concludes that the claim is not acceptable.

The worker’s appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of January, 2021