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 June 8, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On May 26, 2000, the worker filed a Worker’s Claim for Hearing Loss with the WCB indicating a gradual hearing loss they first noticed 8 - 10 years earlier and which they related to their employment with the employer. The worker also provided a summary of their various positions with the employer from the time they commenced their employment in June 1955 to their retirement in August 1993 and noted their promotion to a supervisory position in 1959.

The employer provided the WCB with copies of medical examinations of the worker on July 12, 2000, including hearing testing, from September 1978 to October 1991, all of which indicated the worker’s hearing to be normal. A Hearing Loss Questionnaire, completed by the worker on July 6, 2000 indicated steady exposure to radios, telephones and other office equipment for 8 to 9 hours per day for 20 years as well as exposure to road and yard noise while moving between different locations. The worker also noted prior exposure to explosions, but no dates were indicated.

The WCB advised the worker on August 28, 2000 that the claim was not acceptable as it could not be established the worker was exposed to noise in excess of the minimum threshold for noise induced hearing loss claims, as outlined in the WCB’s policy.

On January 9, 2014, a new Worker Hearing Loss Report was received by the WCB, along with a December 17, 2013 audiogram indicating a mild sloping to moderately-severe sensorineural hearing loss in the worker’s right ear and a moderate sloping to moderately-severe sensorineural hearing loss in the worker’s left ear and recommending bilateral hearing aids. On January 20, 2014, the WCB advised the worker they had already submitted a WCB hearing loss claim in 2000 and provided the worker with a decision letter refusing their claim.

The worker requested reconsideration of the WCB’s decision to Review Office on February 12, 2014. In their submission, the worker noted their initial position with the employer had exposed them to loud engine noise until they were transferred to a new position in an office. The worker noted the office environment was busy, with at least 50 staff and various office equipment and that they believed their daily exposure to noxious noise was for at least 8 hours per day.

Review Office determined on March 12, 2014 that the worker’s claim was not acceptable. Review Office noted the medical information provided by the employer indicated the worker’s hearing was normal until 1991 at least, and there was no information the worker was exposed to noxious noise prior to their retirement in 1993. Further, Review Office could not relate any changes in the worker’s hearing after 1993 to the worker’s employment as they were no longer exposed to noise at work. Review Office found the worker was not exposed to noxious noise levels beyond the threshold set out in the WCB’s hearing loss policy and as such, their claim was not acceptable.

The worker filed an appeal with the Appeal Commission on February 5, 2021 and a teleconference hearing was arranged for June 8, 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 in the hearing on their own behalf. The worker provided an oral submission as well as answering questions posed to them by members of the appeal panel.

The worker’s position is that they were exposed to noxious noise in the course of their many years of working for the employer, and that the exposure was both daily, in terms of the office equipment and external environment, and also occasional, as the job demanded that the worker go to other locations from time to time where there was significant noise exposure. As a result, the worker argues, they developed noise induced hearing loss in both ears, as evidenced by the audiological test results provided to the WCB, and therefore the claim should be accepted.

In answer to questions posed by panel members, the worker testified as to the nature and kind of noise in their daily office environment, noting that they typically worked an 8-hour day for 5 days per week. The office noise included various intercoms and radio systems, machinery noise from the yard outside the office, office conversation and various office equipment including multiple telephones, typewriters, and more. The worker stated they spent an average of at least 6 hours per day in the office and might be called out of office to attend other sites in addition. The worker confirmed they did not wear hearing protection in the course of their duties.

The worker was unable to recall any employer-required hearing tests performed prior to their retirement although they did recall attending for annual medical fitness assessment. The worker noted that when they attended for hearing tests in 2014 and 2020 they were advised that their hearing loss was “really bad” and was the result of noise exposure at work. The worker also advised the panel that they knew of other employees in the same kind of job who had noise induced hearing loss.

In sum, the worker’s position is that their hearing loss was caused by exposure to noise at work and therefore the claim should be accepted.

Employer’s Position

The employer was represented in the hearing by its WCB officer, who made a submission on behalf of the employer and provided answers to questions posed by panel members.

The employer’s position is that the evidence does not support a finding that the worker sustained noise induced hearing loss arising out of their employment. The employer does not dispute that the worker has hearing loss but stated that it is not work-related and therefore the panel should not accept the claim.

The employer’s representative confirmed that the worker was employed from 1955 – 1993, and that they worked in managerial positions in an office from 1974 to their retirement in 1993. The office environment would have been subject to typical office noise from various equipment as well as noise from intercoms and radios and machines and equipment in the yard outside the office.

The employer’s representative confirmed to the panel that the worker held a position that was “safety critical” and therefore the worker was required to attend a physician for annual medical assessments. The reports from those assessments from 1978 – 1991 are on file and document that the worker had normal hearing during those years, and the employer’s representative noted there is no evidence to the contrary for that period.

The file evidence reveals that the worker had some hearing loss as early as 2000, but this was well beyond the date of retirement and therefore the employer suggested that it may have been causally related to factors outside of the worker’s employment.

In sum, the employer’s position is that the evidence does not support the worker’s position that their hearing loss is the result of noise exposure at work, and therefore the worker’s claim should not be accepted.

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.

While the evidence supports that the worker now has bilateral sensorineural hearing loss, not all hearing loss is caused by or the result of noise exposure in the workplace, and not all those exposed to noxious noise develop noise induced hearing loss. In this case, the panel must determine whether the worker’s hearing loss is caused by and the result of noise exposure in the workplace.

As noted above, the Policy sets a threshold level for noise exposure in the workplace in order for a claim for noise induced hearing loss to be accepted by the WCB. The threshold requires that there be evidence 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.

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

The worker described to the panel their work environment and the sources of noise within that environment. The employer’s position is that there was not sufficient exposure to noise in the worker’s employment to meet the threshold requirement set out in the Policy. The worker spent most of their career working in an office environment, from 1974 to 1993. While the panel accepts that an office environment can from time to time be quite noisy, particularly where there are also external environment noise levels to factor in, there is not any evidence before the panel to suggest that the worker’s office environment noise exposure was in excess of the average of 85 decibels for 8 hours daily, as required by the Policy.

Further, the panel notes that the evidence demonstrates that during the period of the worker’s employment, annual medical examinations were conducted from 1978 to 1991 and during that period, the reports record the worker’s hearing as being normal.

The panel is unable to find any occupational explanation on file to account for the worker’s hearing loss as first evidenced by the audiological report from 2000, some 7 years after the worker’s retirement. The panel notes that hearing loss from noise exposure does not typically progress once such exposure is discontinued and the evidence does not point to any employment-related explanation for the deterioration of the worker’s hearing after leaving their employment in 1993.

On the basis of the evidence reviewed and heard, the panel cannot establish, on a balance of probabilities, 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
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 18th day of June, 2021