The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to a permanent partial impairment award. A videoconference hearing was held on September 28, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

The worker is entitled to a permanent partial impairment award.

Background

The worker filed a Worker Hearing Loss Report with the WCB on November 24, 2016 reporting gradual hearing loss first noticed in 1996 and which they related to exposure to noise in relation to their employment duties. The worker provided the WCB with a Work History Summary, outlining their employment history from 1963 onward, noting they worked for the employer from 1965 through to their retirement in 1996.

On December 28, 2016, the WCB received a report from an audiologist indicating the worker had left ear moderate sensorineural hearing loss above 3000Hz bilaterally. Further, the audiologist indicated the worker, as a teen, was diagnosed with “…no useable hearing in his right ear; an exploratory surgery was performed and it was deemed his right ear nerve deafness was likely from birth.” The audiologist recommended a hearing aid for the worker’s left ear.

The WCB received information from the employer on February 21, 2017 indicating the worker would have been exposed to sound levels at a maximum of 84 dBA for 8 hours on a daily basis. On March 9, 2017, the WCB advised the worker that based on the information received from the employer, they had not been exposed to noxious noise levels sufficient to meet the threshold requirement in the WCB’s hearing loss policy and as such, their claim was not acceptable.

On May 30, 2017, the worker attended at the WCB and spoke with their WCB adjudicator. The worker provided the adjudicator with additional information and requested further investigation of the claim. On August 23, 2017, the employer provided the WCB with a list of positions the worker held with the employer from 1977 to 1992. On August 31, 2017, the WCB contacted two of the worker’s coworkers who confirmed the worker’s job duties involved working with loud equipment in noisy environments. In a September 8, 2017 note to file, the WCB adjudicator confirmed that noise exposure levels for the worker’s job duties would have exceeded the threshold for acceptance of noise-induced hearing loss (NIHL) in the WCB’s policy.

An audiogram dated September 11, 2017 was provided to the WCB which indicated “…mild sensorineural hearing loss in the left ear with a moderate notch at 4kHz.”

The WCB’s Ear, Nose and Throat (ENT) specialist reviewed the worker’s file on September 20, 2017 and concluded the worker had NIHL in their left ear, as first indicated on an audiogram in 2015. On October 4, 2017, the worker was advised their claim was accepted and they were entitled to a hearing aid for their left ear however, they were not entitled to a permanent partial impairment award.

The worker’s representative contacted the WCB on January 30, 2020 seeking clarification as to the worker’s entitlement to a permanent partial impairment award and how it determined the worker was not entitled to such an award. The WCB’s ENT specialist opined on February 27, 2020 there was no ratable deficit relating to the worker’s NIHL in their left ear and their hearing loss in their right ear was considered non-work related. The WCB provided this information to the worker’s representative on March 2, 2020.

The worker’s representative requested reconsideration of the WCB’s decision the worker was not entitled to a permanent partial impairment award to Review Office on July 21, 2020. On July 21, 2020, Review Office found the worker had not been provided with a formal decision letter by the WCB regarding the February 27, 2020 opinion of the WCB ENT specialist and returned the worker’s file to the WCB’s Compensation Services for further investigation. After gathering additional medical information from the worker’s treating family physician, the WCB advised the worker and their representative on November 4, 2020, there would be no change to the prior decision the worker was not entitled to a permanent partial impairment award.

On February 22, 2021, the worker’s representative again requested reconsideration of the WCB’s decision noting disagreement with the method used to calculate the worker’s entitlement to a permanent partial impairment award. Review Office determined on March 30, 2021 the worker was not entitled to a permanent partial impairment award for their left-sided noise-induced hearing loss. The worker’s representative file an appeal with the Appeal Commission on April 21, 2021. A videoconference hearing was arranged for September 28, 2021.

Reasons

Applicable Legislation and Policy

The panel is bound by and must apply the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB.

Under s 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. That compensation includes awards for permanent partial impairment, as well as medical aid and wage loss benefits, as outlined in s 37 of the Act. Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of the Act allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole-body impairment.

The WCB has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the “NIHL Policy”) to address how it will adjudicate claims related to occupational hearing loss. The NIHL Policy provides that determination of a worker’s permanent impairment is provided for in Schedule B, Impairment of Hearing, to Policy 44.90.10. The NIHL Policy goes on to set out that that the WCB may consider awarding an impairment award for tinnitus when it is secondary to noise-induced hearing loss and there is a history of 2 or more years of continuous tinnitus. 

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The PPI Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the PPI Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the appropriate PPI Schedule attached to the PPI Policy.

Schedule B to the PPI Policy outlines three possible methods for rating impairment of hearing, the use of which is governed by the date of accident. For new decisions regarding permanent impairment with an accident date occurring on or after April 1, 2000 and for reconsiderations and reassessments with an accident date occurring on or after February 1, 2003, Method 3 applies. Under Method 3, the impairment rating is to be determined as follows:

1. Calculating the percentage of hearing loss in each ear; 

2. Calculating the combined percentage of hearing loss; 

3. Converting the loss of hearing to an impairment of the whole person.

In order to calculate the percentage of hearing loss in each ear, Method 3 requires the following process to be followed:

1. Test each ear and record the hearing levels at 500, 1000, 2000 and 3000 Hz. Add the value of the hearing levels at 500, 1000, 2000 and 3000 Hz in each ear. 

2. If the level of hearing loss is less than 100 dB in the better ear, the percentage of hearing loss in that ear should be taken as 0%. 

3. Consult Table 4-1 to determine the percentage of hearing loss in each ear. 

4. If the level of hearing loss falls between values on the chart, round the level to the nearest 5 dB of hearing loss.

The following formula is to be used to determine binaural hearing impairment:

Total % = ([5 x % hearing impairment in better ear] + % hearing impairment in poorer ear) /6

Method 3 further provides that the WCB will compensate workers for hearing loss caused by occupational noise, but not that caused by age and sets out a formula to do so that requires multiplication of the number of the worker’s years over the age of 60 by 2, then deduction of that product from the sum of the value of the hearing levels at 500, 1000, 2000 and 3000 Hz in each ear.

When the binaural hearing impairment is calculated and adjusted for presbycusis, the percentage of hearing impairment is converted into a percentage of impairment of the whole person.

Method 3 also addresses the presence of tinnitus and sets out that for rating purposes, tinnitus, when secondary to noise-induced occupational hearing loss, is rated as a 2% impairment of the whole person.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor and accompanied by the worker’s spouse as an observer. The worker advisor outlined the worker’s position in a submission to the panel and relied upon the written submissions of February 22, 2021 and July 20, 2020, both provided to the Review Office. The worker provided testimony in answer to questions posed by the worker advisor as well as by members of the appeal panel.

The worker’s position is that the worker should be entitled to a permanent partial impairment award for their NIHL and that the WCB failed to properly apply the PPI Policy in respect of calculating the appropriate rating as required by Schedule B. The worker advisor noted that Schedule B to the PPI Policy requires that the WCB use Method 3 in calculating the appropriate impairment rating, based on the date of accident. Method 3 requires a consideration of the degree of hearing loss in each ear and does not make or indicate any distinction in terms of compensable hearing loss versus non-compensable hearing loss. The detailed information as to how that calculation is to be conducted is clear that both ears must be tested, and the percentage of hearing loss determined with respect to each ear.

The worker advisor argued that the WCB ENT specialist’s February 27, 2020 opinion outlines an interpretation of the PPI Policy that fails to follow the direction of the Policy which does not distinguish between compensable and non-compensable hearing loss. The worker advisor stated that Schedule B to the PPI Policy does not anticipate any circumstances where the hearing in both ears would not be used in the calculation nor does it direct the WCB to base its calculation only on the compensable hearing loss. Further, the worker advisor argued that to undertake this calculation based solely upon the worker’s left ear hearing loss would create an injustice as the very fact of the worker’s pre-existing right ear total hearing loss means that the left ear noise induced hearing loss has a greater impact upon the worker’s ability to function.

With respect to the worker’s diagnosis of tinnitus, the worker advisor relied upon the written submission to Review Office of July 20, 2020 in which the medical evidence confirming the diagnosis is set out. That evidence includes a report from July 5, 2007 in which a treating physician noted the worker described “having high frequency left sided intermittent tinnitus”. Further, in a report dated December 20, 2016 a registered hearing instrument practitioner noted the worker reported a “rushing tinnitus” in their left ear. The treating audiologist in a September 14, 2017 report indicated the worker experienced “Constant tinnitus in the left ear; hissing or tone sound that varies in intensity”. On the basis of this evidence, the worker advisor submitted the panel should find that the worker’s tinnitus is secondary to the NIHL in their left ear and as such should be rated at 2% impairment of the whole person under the provisions of the PPI Policy.

In sum, the worker’s position is that they are entitled to a permanent partial impairment award for the whole body impairment resulting from the left ear NIHL and left ear tinnitus arising out of their NIHL. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer is a finalled firm and as such did not participate in the appeal.

Analysis

The question on appeal is whether or not the worker is entitled to a permanent partial impairment award. For the worker’s appeal to succeed, the panel would have to determine that the calculation of the worker’s permanent partial impairment rating was not correctly calculated. As outlined in the reasons that follow, the panel was able to make such a determination and the worker’s appeal therefore succeeds.

The WCB has established and is bound to apply the PPI Policy with respect to how it will calculate permanent impairment ratings as a percentage of whole body impairment. The PPI Policy clearly sets out that impairment calculations are to be made as set out in the Policy and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the appropriate PPI Schedule. In this case, where the calculation of hearing impairment is at issue, the appropriate PPI Schedule is Schedule B.

The panel reviewed and considered the reports of the WCB ENT specialist as to how the worker’s PPI rating was calculated. On September 28, 2017, the ENT specialist set out in a file memorandum that “The worker has total hearing loss in the right ear since birth. Therefore, the hearing loss in the right ear is not the responsibility of the WCB. The configuration of the hearing loss in the left ear is suggestive of NIHL.” In the same memorandum, the ENT specialist set out the results of their calculation of the worker’s binaural hearing impairment with a total impairment calculated at 0%. A presbycusis factor was applied taking into account the worker’s age as of the September 11, 2017 audiological assessment.

The WCB ENT specialist outlined in a February 27, 2019 opinion (contained in a Healthcare Service Request dated January 30, 2020) that as the first audiogram evidence of noise induced hearing loss, and therefore the date of accident, is from December 18, 2015, Method 3 set out in Schedule B was used to determine the worker’s ratable hearing impairment. In terms of calculating the degree of hearing loss, the worker’s audiological test results from September 11, 2017 were considered for the left ear at frequencies of 500, 1000, 2000 and 3000 Hz. The ENT specialist stated that as the worker’s left ear hearing at each of these frequencies was normal at 25 dB, there was no impairment of hearing in the worker’s left ear. The ENT specialist went on to state that “...the standard practice in WCB Healthcare is that for there to be a ratable impairment of hearing, the hearing loss must stem from a work related exposure. Insofar as [the worker’s] hearing loss at [their] right ear did not stem from a workplace exposure, it was not considered as part of the impairment rating process relative to [their] left ear.” The ENT specialist outlined their further understanding of how the PPI Policy is commonly applied by WCB Healthcare where there is bilateral hearing loss, indicating that:

“...it is standard practice in WCB Healthcare to only apply an enhancement factor for work-related hearing loss when the hearing loss in each ear has been accepted under a WCB claim. Even if an enhancement factor were to be utilized in the hearing rating process, since [the worker] has no ratable impairment of hearing in the single ear affected by workplace exposure...the pre-existing non-work related deficit of hearing in [their] right ear is not considered pertinent to the work related hearing impairment process, as there is no ratable impairment in the affected (left) ear to enhance.”

To illustrate this the ENT specialist then provided a calculation to confirm how applying an enhancement factor of 50% to a 0% left ear rating would equate to a 0% enhancement factor.

The panel also noted a February 27, 2020 file memorandum from WCB adjudication services that described a “multi-point medical review” with the WCB ENT specialist and the WCB medical advisor and subsequent conversation with the worker’s representative. The adjudication services supervisor outlined that: 

“...by and large the conclusion is that the worker does not have a ratable impairment in the compensable ear, and as such it challenges the principle of natural justice (my administrative opinion) to provide an impairment rating for a non-compensable condition when the compensable injury in isolation did not result in a measurable impairment to the frequencies used to measure this.”

The worker takes issue with this position on the basis that even though their total hearing loss in the right ear is not compensable as it is not due to any occupational cause, the right ear hearing loss must be included in the calculations of the whole body impairment resulting from the worker’s compensable left ear hearing loss. They argue the PPI Policy recognizes the greater impact of bilateral injuries on a worker’s whole body functioning by applying an enhancement factor in calculating impairment in such cases, and in the case of hearing loss, that the enhancement factor is already built into the ratings established by use of Method 3. The worker advisor argued that the worker’s loss of hearing in their left ear has a greater impact upon the worker due to their total hearing loss in their right ear, such that the total impairment for the worker is more severe than would be the case with only single ear hearing loss.

The Review Office concluded that the wording of the PPI Policy supports the conclusion reached by the WCB that where the left-sided hearing is normal within the criteria used when considering entitlement to a PPI award, the non-compensable right ear hearing loss is not considered and therefore would not change the outcome.

The panel is not aware of the WCB Healthcare’s “standard practice” in this regard other than as outlined by the WCB ENT specialist and in any case, we are not bound to apply standard practice where that practice does not align or accord with the applicable policy. As outlined elsewhere in this decision, the panel is bound to apply the applicable WCB policies, which in this case include the NIHL Policy and the PPI Policy.

The NIHL Policy outlines that the date of accident, for purposes of a noise induced hearing loss claim, is the date a loss of earnings has occurred or the date of an audiogram showing evidence of noise induced hearing loss. In this case, applying the NIHL Policy to the evidence before the panel, we find the first evidence of the worker’s NIHL is from an October 14, 2015 audiological test. Schedule B of the PPI Policy makes it clear that the appropriate method of impairment calculation is based upon the date of accident. In this case, the panel finds that the appropriate method is Method 3 of Schedule B.

Method 3 clearly states that the WCB must calculate the percentage of hearing loss in each ear. There are no exceptions noted or provided that would justify an alternate approach. While it may be true that this does not reflect WCB practice as indicated by the ENT specialist, the panel does not find that this position is supported by a plain reading of the PPI Policy. Our reading of the PPI Policy provisions does not suggest to the panel that the WCB intended that the Method 3 calculation would result in a ratable impairment of hearing only where the hearing loss arises from a work related exposure. The provisions outlining the Method 3 calculation process require the WCB to calculate “the percentage of hearing loss in each ear”, to “Test each ear”, to add the testing values “in each ear”, and to “determine the percentage of hearing loss in each ear.” Further, the provisions of Method 3 contemplate a difference in hearing between each ear, referring to calculations relating to a “better ear” and “poorer ear”. In none of the steps to be undertaken in the calculation is there any reference to excluding results where the hearing loss is non-compensable or where there is complete hearing loss.

The PPI Policy explicitly states that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the appropriate Schedule attached to the Policy. The panel finds that in this case, where there is reliable and uncontroverted audiological evidence of the worker’s degree of hearing loss in each ear, it is possible and reasonable to establish the impairment rating in relation to the worker’s hearing loss “strictly in accordance with” Schedule B, Method 3 and finds that the WCB did not do so in compliance with the PPI Policy.

The panel also considered the worker’s position that the worker should be entitled to a permanent partial impairment award in respect of their tinnitus. The worker advisor stated that it is well documented in the worker’s WCB claim file that they suffer tinnitus in their left ear. While the panel does not dispute the medical evidence in this regard, we note that the NIHL Policy requires that the diagnosis must be secondary to NIHL and that there is a history of 2 or more years of constant tinnitus. The WCB ENT specialist provided an opinion on this question dated October 20, 2020, noting that occupational noise is not the only possible cause for tinnitus and that the medical reporting with respect to the worker’s symptoms support a finding that the worker’s tinnitus is rather the result of non-occupational causes, specifically other reported health related issues that are recognized causes of tinnitus. Further, the WCB ENT specialist noted there is no evidence to confirm that the worker had a history of 2 or more years of continuous tinnitus.

The panel accepts and relies upon the opinion of the WCB ENT specialist in this regard. The medical evidence on file from the treating physicians does not support the worker’s position that their tinnitus is secondary to NIHL and further the evidence does not support a finding that the worker had a history of 2 or more years of continuous tinnitus. The panel therefore finds, on a balance of probabilities, that the worker is not entitled to a PPI award in respect of the diagnosis of tinnitus.

The panel is satisfied, on the standard of a balance of probabilities and on the basis of the totality of evidence before us, that the worker’s permanent partial impairment rating was not correctly calculated. We therefore direct the WCB to recalculate the worker’s permanent partial impairment rating as required by the PPI Policy. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of October, 2021