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 was not acceptable. A teleconference hearing was held on February 10, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on January 24, 2020, reporting a gradual hearing loss first noticed approximately four years earlier, which the worker attributed to their general job duties with all their employers. The worker provided a Work History Summary, listing three employers and noted they were not currently employed. Also included with the Report was an audiogram dated November 15, 2019 which indicated the worker had “…sloping normal to moderately-severe sensorineural hearing loss” bilaterally.

On January 30, 2020, the WCB contacted the worker to discuss the claim. The worker provided the WCB with further details regarding their employment history from 1989 to 1999 and the job duties involved. The worker noted that except for their first employer where they were employed from 1989 to 1990, they had not worn hearing protection with the other two employers but were exposed to noise for eight hours every day while working. The WCB requested Employer Hearing Loss Reports from the worker’s previous employers on the same date.

The WCB received an Employer Hearing Loss Report on February 6, 2020 from the worker’s employer during the period 1991 to 1995, who advised they had no information on the worker and could not confirm the worker was a previous employee. This employer provided the WCB with noise level testing information on February 12, 2020. On February 10, 2020, the worker’s employer for the period 1995 to 1999 submitted their Employer Hearing Loss Report and noted “unsure” as to the worker’s proximity to noise and whether hearing protection was worn while in their employ. The WCB reviewed their records and found information for the worker’s employer from 1989 to 1990 and found information that the worker was a machine operator and wore hearing protection.

The WCB requested a WCB Ear, Nose and Throat (ENT) specialist review the worker’s claim. On March 24, 2020, the WCB ENT consultant reviewed the worker’s file and opined the November 15, 2019 audiogram “…has a cookie-bite configuration. This configuration is not typical or diagnostic of NIHL [noise induced hearing loss].” On March 26, 2020, the WCB advised the worker the claim was not acceptable as the medical evidence indicated the worker’s type of hearing loss was not typical of occupational noise induced hearing loss and a causal relationship between their job duties and the hearing loss could not be established.

The worker wrote to the WCB on April 6, 2020, requesting the decision be reviewed. In their submission, the worker noted that their treating healthcare providers support that their hearing loss and tinnitus was caused by exposure to noise and their treating family physician had referred the worker to a specialist. On April 22, 2020, the WCB received a copy of the November 19, 2019 report from the worker’s otolaryngologist. The specialist noted the worker reported bilateral tinnitus for two years, which had worsened as well as a history of noise exposure. The otolaryngologist noted a normal ENT examination and stated a suspicion that the worker had a noise induced hearing loss which was causing the tinnitus, but that the hearing loss was possibly “…congenital in nature…” given the worker’s age.

The WCB ENT consultant reviewed the otolaryngologist’s report on April 25, 2020 and noted the assessment that the worker’s hearing loss might be congenital, again concluding the “cookie-bite configuration” of the November 15, 2019 audiogram was not typical of NIHL.

On May 4, 2020, the WCB advised the worker the new information was reviewed but there would be no change to the WCB’s earlier decision the claim was not acceptable.

The worker contacted the WCB on June 8, 2020 and advised they had further hearing testing conducted on June 4, 2020 and requested the WCB review the report from the audiologist. The report was received by the WCB on June 16, 2020. The audiologist indicated the worker had “moderately-severe sensorineural hearing loss” in their right ear and “borderline to mild sloping to moderate sensorineural hearing loss” in their left ear. The audiologist opined “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.” Bilateral hearing aids were recommended for the worker.

On June 22, 2020, the WCB advised the worker the information submitted did not provide any new evidence to support their claim and there would be no change to the decision the claim was not acceptable.

On June 29, 2020, the worker requested reconsideration of the WCB’s decisions to Review Office noting their treating healthcare providers all supported their hearing loss was noise induced and disagreed with the WCB ENT specialist’s opinion.

Review Office determined, on July 29, 2020, the worker’s claim was not acceptable. Review Office relied and placed weight on the opinion of the WCB ENT specialist’s opinion that the worker’s audiograms were not indicative of noise induced hearing loss. Further, Review Office noted the worker’s young age at the time the symptoms were first noticed and their absence from working for over 17 years and concluded the worker did not sustain noise induced hearing loss due to exposure to noxious noise from their employment and as such, their claim was not acceptable.

The worker filed an appeal with the Appeal Commission on August 17, 2020 and a teleconference hearing was arranged for February 10, 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 and provided answers to questions posed by panel members.

The worker’s position is that the hearing loss demonstrated by the audiological reports in the file is the result of exposure to noise in the workplace and therefore the claim should be accepted.

The worker told the panel that they worked only in noisy workplace environments until leaving work in 1999 to raise a family. In two of those workplaces, the worker did not wear any hearing protection. The worker described living a quiet lifestyle, noting that they did not participate in or attend noisy activities or events. The worker noted that when a passenger on a motorcycle in years past, they always wore hearing protection and that there is no known family history of hearing loss.

The worker stated that the otolaryngologist seen in November 2019 was of the view that the worker’s hearing loss was noise-induced, although there was suspicion that it could also be congenital given the worker’s young age. The audiologist the worker saw in June 2020 also believed that noise exposure played a role in the worker’s hearing loss.

The worker described to the panel that they first became aware of possible hearing loss when their children pointed it out and that it took a number of years before the worker was convinced to go for hearing testing.

The worker also described experiencing symptoms of tinnitus that have worsened recently. The worker could not recall when these symptoms first began. The worker related to the panel that a CT-scan investigation of the tinnitus did not reveal any abnormalities.

In sum, the worker’s position is that the available evidence supports that as a result of exposure to noisy work environments, the worker experienced hearing loss and the claim should therefore be accepted.

Employer’s Position

The employer did not participate in the appeal.

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 Policy. The Policy requires that there be audiogram evidence of noise induced hearing loss for a claim to be considered. The earliest audiogram evidence on file from November 15, 2019 indicates “a sloping normal to moderately severe sensorineural hearing loss from low to high frequencies on both ears”. The otolaryngologist who reviewed this report concluded on November 19, 2019 “I suspect that [the worker] has a noise induced hearing loss which is causing [their] tinnitus. It is also possible that the hearing loss that is observed is congenital in nature considering [their] young age.”

The evidence on file relating to the worker’s hearing loss also includes an audiogram dated June 4, 2020. The audiogram report dated June 16, 2020 describes the testing results as demonstrating the worker has “mild sloping to moderately-severe sensorineural hearing loss for the right ear” and “mild sloping to moderate sensorineural hearing loss” in the left ear. The audiologist comments that the worker’s hearing loss 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’s ENT consultant reviewed the worker’s initial audiological testing results on March 24, 2020 and concluded that the audiogram did not indicate the worker has noise induced hearing loss, commenting that the audiogram had “a cookie bite configuration” which is not typical or diagnostic of NIHL. On April 25, 2020, the WCB ENT consultant again reviewed the claim file, including the November 19, 2019 report from the treating otolaryngologist and noted that the specialist speculated that the worker’s hearing loss could be congenital given their age. The WCB ENT consultant maintained the opinion that the configuration of the audiogram results was not diagnostic or typical of NIHL but did allow that the results were suggestive of a “genetic or a hereditary type of hearing loss.”

While the evidence supports that the worker has bilateral sensorineural hearing loss and that there was a history of workplace noise exposure, not all hearing loss is caused by or the result of noise exposure in the workplace. Further, not all workers exposed to workplace noise levels above the threshold required for a claim for NIHL to be accepted by the WCB experience hearing loss as a result of that exposure.

The panel notes that some 20 years elapsed between when the worker left the noisy work environment in 1999 and the audiological test that revealed the worker’s hearing loss. The worker’s testimony is that during this period, they were focused on raising a family and did not note any hearing loss until the children were older and pointed it out.

The panel accepts the opinion of the WCB ENT consultant that the audiological results do not support a diagnosis of NIHL but are rather suggestive of other non-work-related causes, such as genetic or hereditary hearing loss. The panel further notes that while neither the audiologist nor the otolaryngologist consulted by the worker definitively stated the hearing loss is caused by noise exposure, both do suggest that there may be other causes given the results and the worker’s age at onset.

On the basis of the evidence reviewed and heard and on the standard of a balance of probabilities, the panel cannot establish that the worker’s bilateral sensorineural hearing loss was the result of workplace exposure to noise. 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 19th day of February, 2021