Decision #106/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim was not acceptable. A videoconference hearing was held on May 20, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Hearing Loss Report with the WCB on April 18, 2017 reporting gradual hearing loss which they first noticed 15 to 20 years previously and reported to their prior employer. The worker attributed their hearing loss to working with noisy machinery and to their employment duties in general. The worker also provided a Work History Summary, listing their employers from 1969 to the present, their position with each of those employers, and the equipment used.
On April 19, 2017, the WCB contacted the worker to discuss their claim. The worker provided detailed information for each of the employers listed on the Work History Summary, noting how long they worked for each employer, the duties performed, how many hours per day they were exposed to noise and whether or not hearing protection was worn. The worker also advised they had hearing tests performed in the past with two previous employers.
The WCB received a copy of the worker’s April 12, 2017 audiogram on April 24, 2017. The audiogram indicated “…normal hearing to 1500 Hz than sloping to moderately-severe & severe sensorineural hearing loss in the mid to high frequencies…” for the worker’s left ear and “…normal hearing to 4000 Hz than sharply sloping to a severe hearing loss in the high frequencies” for the right ear. A hearing aid was recommended for the left ear only.
The worker’s current employer provided an Employer Hearing Loss Report to the WCB on April 25, 2017. The employer advised that since October 9, 2001, the worker performs 50% of their job duties in an office setting, with the remaining 50% spent in a classroom and doing hands-on training, with 60% of that time in an office setting and 40% of that time in a shop conducting training.
The employer provided an Employer Hearing Loss Report to the WCB on June 1, 2017 indicating they were unable to confirm the worker’s employment. The WCB then reviewed their records and was able to confirm the worker was employed with the employer from July 1984 to September 1994, and on July 2, 2017, further confirmed the worker’s employment with the employer from a previous WCB claim filed in 1990. The WCB’s records also contained a noise level survey for the worker’s position with the employer which indicated they would have been exposed to noise at 87.9 decibels. On June 5, 2017, the WCB adjudicator indicated in a note to file that such exposure would be “Sufficient noxious noise exposure without h/p (hearing protection).”
On June 13, 2017, the WCB’s Ear, Nose and Throat (ENT) specialist reviewed the worker’s claim and provided an opinion that the worker had asymmetric hearing loss, with their left ear being worse. The ENT specialist noted the asymmetry was significant and requested the WCB adjudicator investigate whether there was any job-related explanation for the asymmetrical hearing loss as noise induced hearing loss was normally bilateral and symmetrical.
On July 28, 2017, in response to the WCB’s query regarding the asymmetrical hearing loss, the worker provided the WCB with further details relating to their duties with a previous employer noting that the left side of their body, including their left ear, would have been positioned closer to where they were working and as such, exposed to more noise. The WCB was not able to confirm the noise exposure in that workplace due to the passage of time since the worker had performed those duties. On August 18, 2017, the worker advised the WCB they did not have contact information for co-workers who could confirm their job duties with that previous employer.
The WCB advised the worker on August 28, 2017, that despite workplace exposure to noxious noise, the asymmetrical configuration of their hearing loss rendered the WCB unable to relate that hearing loss to their job duties and as such, their claim was not acceptable.
On September 13, 2017, the worker requested reconsideration of the WCB decision to Review Office, stating their belief that the WCB did not consider their different job duties throughout their work history.
On November 17, 2017, Review Office determined the worker’s claim was not acceptable, relying upon the opinion of the WCB’s ENT specialist that occupational noise induced hearing loss is typically bilateral and symmetrical. As an explanation for the worker’s asymmetrical hearing loss could not be established, the worker’s claim was not accepted.
The worker filed an appeal with the Appeal Commission on December 11, 2020. A videoconference hearing was arranged and held on May 20, 2021. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On August 18, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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,
(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 188.8.131.52, 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.”
The worker appeared in the hearing on their own behalf and provided an oral submission to the appeal panel. The worker also provided testimony through answers to questions posed by members of the panel.
The worker’s position is that the noise induced hearing loss identified by the audiograms of April 12, 2017 and December 5, 2020 is the result of exposure to noxious noise in the course of their employment both with the employer and in other employment positions as well. Therefore, the worker believes that the claim should be accepted.
The worker provided the panel with a summary of their workplace noise exposure from 1969 through to retirement in 2021. The worker described working in noisy shop environments from 1969 -1976 and from 1980-83 in particular, as well as in other job environments. The worker stated that they first noticed their hearing loss during that period but thought it would improve when they left those environments. Instead, the worker stated, their hearing diminished further.
The worker confirmed that in their employment with the employer, they had daily exposure to shop noise of 6 – 8 hours. In their subsequent employment, the worker was more removed from the noisy shop environment and as such had much less noise exposure.
The worker confirmed to the panel that they did not have their hearing tested until 2017.
In response to questions from panel members, the worker described the job duties at their employment from 1969-1976 that they believe accounted for the findings of asymmetrical hearing loss. The worker is right-handed and when working on certain jobs, would position the left side of their body against the equipment they were working on. The worker described that their left ear was closer to the equipment and would have had greater noise exposure than the right ear which was positioned away from the equipment. The worker described using very noisy air-tools regularly in the course of that employment.
In sum, the worker’s position is that their hearing loss developed during their employment and was caused by their workplace exposure to noxious noise levels. Therefore, the claim should be accepted.
The employer did not participate in the appeal.
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.
While the evidence supports that the worker now 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 experience hearing loss as a result of such exposure.
The Policy sets out that for a claim of noise induced hearing loss to be accepted, there must be evidence of noise exposure above the threshold of an average of 85 decibels for 8 hours of exposure on a daily basis over at least two years, and with the required time of exposure cut in half for each additional 3 decibels of exposure.
The panel considered whether the evidence here satisfies this threshold requirement. The panel noted that the worker’s most recent employer, at the time of claim, reported that since October 2001, the worker performed 50% of their job duties in an office setting, with the remaining 50% spent in a classroom and doing hands-on training, and 60% of classroom time spent in an office setting and 40% of that time in a shop conducting training. The worker confirmed they had little exposure to noise in that employment, which they left in March 2021 and used hearing protection when there was noise exposure.
With respect to the employer, the WCB file evidence reveals the worker would have been exposed to noise at 87.9 decibels without hearing protection. As noted by the WCB adjudicator on June 5, 2017, that level of exposure would be “Sufficient noxious noise exposure without h/p (hearing protection)” (emphasis added). The worker advised the WCB and confirmed to the panel that they worked 6-8 hours per day in that environment from 1984-1996, and that hearing protection was worn at times. The worker also testified that colleagues in the workplace commented at that time that the worker did not seem to hear them.
The file record and worker’s testimony confirm the worker was employed in other noisy environments both before and after working with the employer, and that hearing protection was typically used, although not always consistently. Other than during the employment with the employer, however, there is no evidence on file to confirm the level of noise exposure with other employers.
On the basis of the evidence heard and available in the worker’s claim file, the panel is not satisfied, on the standard of a balance of probabilities, that the worker’s exposure to noise in the course of their job duties with the employer was in excess of the threshold required by the Policy. Given the available noise level data, and the worker’s testimony as to the hours of exposure and the use of hearing protection from time to time in that environment, the panel finds that the evidence does not support a finding that the worker was exposed to noise in excess of the threshold limit in their work with the employer.
Even if there were evidence of sufficient occupational noise exposure in excess of the threshold set out in the Policy, the panel would have to also find that the worker’s sensorineural hearing loss was caused by such workplace noise exposure. The panel therefore also considered the evidence with respect to whether there is evidence of an occupational cause for the worker’s hearing loss. Despite the worker’s assertion to the WCB that they had hearing tests with prior employers, the first documentation of any hearing loss is an audiogram dated April 12, 2017. That audiogram revealed asymmetrical hearing loss with the left ear results being much worse. When these results were reviewed by the WCB ENT advisor on June 13, 2017, they agreed the audiogram revealed noise induced hearing loss but noted that occupational noise induced hearing loss is usually bilateral and symmetrical, and described the worker’s asymmetry as significant and requiring further investigation. Subsequent audiogram results from December 5, 2020 reveal mild sloping to moderately severe bilateral sensorineural hearing loss. The WCB ENT advisor, on reviewing the more recent results commented on June 8, 2021 that the deterioration evident in the worker’s right ear is significant compared to the left ear deterioration since 2017, such that the changes in the right ear “...cancels the difference between the right and left ears and ...renders the asymmetric hearing loss seen in the 2017 audiogram to be symmetrical in the 2020 audiogram.”
The worker testified as to their belief that the asymmetrical hearing loss evident in 2017 was caused by their body position in a previous employment, from 1969-1976 where hearing protection was inconsistently used. The panel requested that the WCB ENT advisor consider the worker’s testimony in this regard, as well as the December 5, 2020 audiogram results and provide a further opinion with respect to the worker’s claim. The WCB ENT advisor did so, as outlined in a file memorandum dated July 12, 2021. The ENT advisor noted that the worker’s job-related explanation would suggest bilateral, rather than left ear only noise exposure in that context. Further the ENT advisor noted that the deterioration in the worker’s right ear only from 2017 to 2020 is “medically unaccounted for in relation to [the worker’s] workplace exposures” on the basis of the evidence on file, and that “even if there had been further noise exposure, the medical expectation would have been for symmetric deterioration in the hearing in both ears, not just the right.” The ENT advisor also commented that “...noise induced hearing loss does not progress so long as noxious noise abates.”
The panel accepts and relies upon the opinions provided by the WCB ENT advisor in this case. We find that there is no evidence of an occupational explanation to account for the worker’s asymmetrical hearing loss as demonstrated in 2017. Further the panel notes that the audiological evidence demonstrates a significant deterioration in the worker’s hearing after 2017 when the worker’s occupational exposure was significantly reduced and that there is also no evidence of any occupational explanation for this deterioration.
On the basis of the evidence reviewed and heard and on the standard of a balance of probabilities, the panel determines that the worker’s bilateral sensorineural hearing loss is not the result of workplace exposure to noise. Therefore, the panel concludes that the claim is not acceptable.
The worker’s appeal is dismissed.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of August, 2021