Decision #67/21 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to a hearing aid for the right ear. A file review was held on March 30, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a hearing aid for the right ear.

Decision

That the worker is entitled to a hearing aid for the right ear.

Background

The worker filed a Worker Hearing Loss Report with the WCB on December 18, 2019, in which he indicated that his hearing loss came on gradually and he first became aware of a hearing problem in the 1980s. The worker attributed his hearing loss to exposure to an asphalt mixer for over 25 years, blasting, sandblasting, chainsaws and heavy equipment. He noted that hearing protection became available in the 1980s and he used it for his whole career after the 1980s.

The worker also submitted audiometric evaluation records and audiograms from 1987 to 2014. In a discussion with the WCB on January 3, 2020, the worker confirmed the information contained in his Report, and advised that in addition to the hearing loss, he had tinnitus in both ears.

On February 7, 2020, the employer provided information from the worker's hearing conservation file. In an Employer Hearing Loss Report, filed February 10, 2020, the employer set out details of the worker's employment history, starting with his working as a seasonal employee from 1971 to 1980, then as a full-time employee from 1980 to his retirement in October 2014.

On February 11, 2020, the worker's file was reviewed by the WCB's Ear, Nose and Throat ("ENT") consultant. The consultant opined that the configuration of the provided audiograms was suggestive of noise-induced hearing loss ("NIHL"), with the earliest audiogram showing NIHL in the worker's left ear in 2008 and both ears in 2012.

On March 24, 2020, a WCB adjudicator advised the worker that they had confirmed, based on the information provided, that he had been exposed to sufficient noise to meet the WCB criteria. On June 2, 2020, the worker underwent further audiologic testing. The audiologist noted the worker's reporting of bilateral hearing loss for the previous 20 plus years, with progressive worsening over the last 10 years and constant buzzing bilateral tinnitus. The audiologist noted the worker had moderately severe notched sensorineural hearing loss bilaterally, and recommended bilateral hearing aids and annual testing to monitor his hearing.

On June 4, 2020, the WCB's ENT consultant opined that based on the hearing test from January 8, 2014, the worker had NIHL but did not have a rateable impairment for the purposes of a permanent partial impairment award. The ENT consultant further opined that "Based on bone conduction thresholds, only a left hearing aid is needed" and he could not find medical evidence to confirm the worker had tinnitus for two years.

On June 22, 2020, the WCB's Compensation Services advised the worker that they had determined he was exposed to noxious noise levels at work and his claim for NIHL was accepted. Compensation Services stated that based on the 2014 hearing test results, a hearing aid was required for the worker's left ear only. Compensation Services went on to advise, however, that the worker's reported history of firearm use likely accounted for the requirement for a hearing aid for his left ear, and that as he had retired in 2014 and was no longer exposed to noxious noise levels in the workplace, they were unable to accept responsibility for any further deterioration in his hearing or reimbursement for hearing aids.

On August 5, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that his treating audiologist supported that his hearing loss was from long-term exposure to noise at work, and that at a minimum, one ear should be covered. On September 16, 2020, the employer provided a submission in support of Compensation Services' decision. On September 16, 2020, Review Office also received a copy of a letter from the worker's treating audiologist in support of his request for reconsideration.

On September 18, 2020, Review Office discussed the treating audiologist's letter with the WCB's ENT consultant, who confirmed that the worker's left ear was determined to have sustained a NIHL and that he remained of the opinion that the left side was related to an occupational hearing loss. The consultant noted that the numbers on the 2014 audiogram for the right side also suggested NIHL, but that the "…degree of hearing loss in the right ear does not justify the use of a hearing aid considering the normal speech recognition ability (100%) reported." In conclusion, it was noted that the WCB's ENT consultant recommended a left sided hearing aid only based on the 2014 audiogram.

The worker provided a written response to the employer's submission and a response to the ENT consultant's opinion on September 25 and October 7, 2020, respectively.

On October 13, 2020, Review Office determined that the worker was entitled to a left side hearing aid only. Review Office placed weight on the opinion of the WCB's ENT consultant that the worker had occupational NIHL and required a hearing aid for his left ear. Review Office further accepted the opinion that the medical evidence did not demonstrate that the worker's hearing loss in his right ear was significant enough to establish entitlement to a hearing aid for his right ear at the time of his assessment in 2014 and retirement.

On October 27, 2020, the worker appealed the Review Office decision to the Appeal Commission and a file review was arranged.

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.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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 that causes hearing loss. The effective date for the Policy is for claims with a date of notification on or after October 1, 2013, and as such, the Policy applies in this case. 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. 

… 

7. When the WCB accepts a claim for noise-induced hearing loss and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the WCB under Policy 44.120 or 44.120.01, Medical Aid.

Worker's Position

The worker was self-represented on the appeal. The worker submitted additional information in support of his appeal, including a written statement from a co-worker and a further letter from his audiologist dated October 26, 2020.

The worker's position was that the hearing in both of his ears was affected by long-term exposure to excessive noise during his employment, and he should be entitled to a hearing aid for his right ear as well as his left.

The worker submitted that the test results show the deterioration in his hearing, which became worse with time. He noted that the loss of hearing in his right ear is very close to that in his left ear. The worker submitted that hearing loss started showing up in his right ear in the 2004 hearing test results, with the 2008 results being worse and the 2014 results worse again.

The worker submitted that the audiologist in 2014 recommended hearing aid trials for both ears, not just a hearing aid for the left side.

In addition, the worker submitted that to be successful and achieve the best results, given the hearing in both ears has been damaged, it is important that hearing aids be provided for both ears and they be fitted and set up as a pair.

Employer's Position

The employer was represented by an advocate, who provided a written submission in response to the worker's appeal.

The employer's position was that the worker is not entitled to a right side hearing aid, and Review Office's decision should be upheld.

The employer's advocate noted there is no disagreement that the worker has NIHL or that his claim was accepted for bilateral NIHL, not just for the left ear. The issue was whether the worker is entitled to a hearing aid for the right ear, in addition to the left ear, based on his accepted NIHL.

The employer's advocate noted that prior to rendering their decision, Review Office requested that the WCB's ENT consultant review the worker's claim file. The advocate asked that the panel place significant weight on the September 18, 2020 opinion of the WCB's ENT consultant following that review, that a right side hearing aid was not required because the hearing test results reported normal speech recognition ability in the right ear.

Analysis

The issue before the panel is whether or not the worker is entitled to a hearing aid for the right ear. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires a hearing aid for his right ear as a result of his exposure to workplace noise. The panel is able to make that finding, for the reasons that follow.

The worker has an accepted claim for bilateral NIHL based on his exposure to noxious levels of noise in the workplace during his employment with the employer. Acceptance of the worker's claim for NIHL in both ears was confirmed by the WCB's Compensation Services on June 22, 2020. Compensation Services advised at that time that a hearing aid was required for the worker's left ear only, but stated that the need for a hearing aid was attributable to the worker's use of firearms and was therefore not a WCB responsibility. The worker appealed that decision to Review Office.

As documented by Review Office in notes of their conversation with the WCB's ENT consultant on September 18, 2020, the ENT consultant felt the worker had entitlement to a left hearing aid based on the 2014 audiogram and that the determination to not cover a right side hearing aid had been that of Compensation Services who placed more weight on the fact the worker had shot a gun in the past. The panel agrees with Review Office that the hearing assessment did not demonstrate a significant difference in hearing loss between the right and left side, as would have been expected if prior use of firearms had been the cause of the hearing loss in the worker's left ear, and that as the worker said he had not hunted for approximately 20 years, some indication of the loss should have been recorded and evident on prior examinations. Review Office therefore determined that the worker was entitled to a hearing aid for the left ear.

The panel notes that the worker's claim related to a loss of hearing in both ears, and there was sufficient evidence for the WCB to accept the claim based on the worker's bilateral exposure to noxious noise levels in the workplace. The information on file indicates no significant difference between the occupational noise exposure to the worker's left and right ears, and that they were therefore equally exposed to that noise.

The WCB's ENT consultant determined that the first screen/audiogram to show NIHL in both of the worker's ears was in 2012. The panel notes that the configuration of the 2012 hearing results for both ears is very similar, and was accepted as being consistent with NIHL. Further, as indicated by Review Office, the hearing assessment in 2014 did not demonstrate a significant difference in hearing between the right and the left ear. The panel notes that the 2012, 2014 and 2020 audiograms on file are consistent with each other, in showing the same configuration or pattern of hearing loss, with comparatively similar levels of hearing loss in each ear.

The panel is satisfied that the information on file supports that the hearing loss in the worker's left and right ears as identified in the audiograms has a significant or material sensorineural component which is work-related. The worker had NIHL in both ears at the time of the 2014 audiogram and his audiologist recommended hearing aid trials. In 2020, the combined effect of the work-related hearing loss and non-compensable deterioration in the hearing in each ear caused the worker's audiologist to recommend the use of hearing aids for both ears. The panel is satisfied that but for the workplace exposure to noxious noise, the worker would not have required the use of hearing aids for both his left and his right ears.

The panel notes that paragraph 7 of the Policy contains mandatory language (shall) and outlines two prerequisites for entitlement, namely an accepted claim for hearing loss and a specialist's recommendation. In this case, the panel is satisfied that both of these prerequisites are met: there is an accepted claim and the worker's specialist has recommended the use of a hearing aid for both of the worker's ears.

In light of the foregoing, and given that the WCB has accepted responsibility for a hearing aid for the worker's left ear based on his work-related NIHL, the panel is satisfied that a hearing aid is similarly required and should be provided for the worker's right ear.

In conclusion, the panel finds, on a balance of probabilities, that the worker requires a hearing aid for his right ear as a result of his exposure to workplace noise. The panel therefore finds that the worker is entitled to a hearing aid for the right ear.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of May, 2021

Back