Decision #128/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on September 9, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a Worker Hearing Loss Report with the WCB on December 11, 2015 reporting a gradual hearing loss which he related to his job duties with the employer. Included with the Hearing Loss Report was a Work History Summary, where the worker listed three employers from 1982 to 2012. The worker noted he wore hearing protection from the time he was hired in 1982. The worker also listed occasional non-work related exposure to noise in the form of car racing/flying, snowmobiling/motorcycling, power boating, power tool operation at home and listening to loud music.
On December 17, 2015, the employer provided the WCB with an Employer Hearing Loss Report. The employer listed the various positions the worker held while employed to June 24, 2011. The employer noted the worker was exposed to intermittent noise but was issued and wore hearing protection regularly. The employer also provided audiogram results for the worker from 2001 and 2002.
On January 28, 2016, the WCB spoke with the worker, who confirmed that the information provided to the WCB was correct. The worker advised he was exposed to loud noise throughout his whole career, that he always wore hearing protection, and that he had his hearing tested several times while employed.
On February 1, 2016, the WCB received a copy of a January 29, 2016 report from the worker's treating Ear, Nose and Throat (ENT) specialist, which included the results of audiologic testing from January 30, 2014. The specialist opined that the worker had "…bilateral moderate sloping sensorineural hearing loss…likely due to his significant occupational and recreational noise exposure," and recommended bilateral hearing aids.
On February 4, 2016, the WCB received a report from the worker's audiologist, along with a February 21, 2014 audiogram. With respect to the February 21, 2014 audiogram, the audiologist opined that "Audiological test results indicated a moderate conductive loss below 500 Hz, rising to normal at 1000 Hz, than (sic) sloping to a moderate sensorineural hearing loss on the right ear. The left ear results indicated a mild conductive loss below 1000 Hz, rising to normal at 2000 Hz, than (sic) sloping to a moderately-severe sensorineural hearing loss."
On March 31, 2016, the WCB advised the worker that his claim for hearing loss was not acceptable as there was insufficient evidence to support his hearing loss was the result of work-related exposure. On May 10, 2017, the worker submitted a new Worker Hearing Loss Report to the WCB, including a Work History Summary and the treating ENT specialist's February 6, 2014 report. On May 16, 2017, the WCB advised the worker that there would be no change to the March 31, 2016 decision as no new additional information had been submitted.
On July 24, 2020, the worker contacted the WCB to advise he had attempted to gather further evidence to verify his noise exposure, without success, but was continuing to pursue this. On December 9, 2020, the worker asked that the WCB contact the employer for further information with respect to his noise exposure, which the WCB requested that same day. Additional noise information was received, and on February 11, 2021, the worker's WCB adjudicator reviewed the file and provided a memorandum to file. The adjudicator noted the worker advised he was exposed to the loudest noise while performing his job duties from 1982 to 2002. Audiograms from 2001 and 2002 showed no hearing loss in the worker's left ear and only slight hearing loss in the right. The adjudicator noted that the slight asymmetrical loss could not be accounted for in relation to the worker's job duties.
The adjudicator further noted that a noise level survey for the area where the worker performed his job duties from 2002 and 2011 was received and reviewed. The adjudicator noted the noise levels provided were for positions that worked in close proximity to the equipment listed and that the worker would have been in and out of this area. The adjudicator found that "The worker would not have been exposed in close proximity….With the use of hearing protection, the exposure is not sufficient to accept a claim for noise induced hearing loss." By letter dated February 11, 2021, the adjudicator advised the worker that there would be no change to the decision that his claim was not acceptable.
On March 1, 2021, the worker requested that Review Office reconsider the adjudicator's decision. On March 8, 2021, Review Office requested an opinion from the WCB's ENT specialist. On March 11, 2021, the WCB's ENT specialist opined that the worker's February 21, 2014 audiogram was the earliest to show signs of noise-induced hearing loss.
On March 12, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found that the work environment had loud noise levels, but the worker's exposure was limited, and was also impacted or decreased by the worker's wearing of hearing protection. Review Office further found that if the work environment had been the cause of the worker's hearing loss, this would have been demonstrated during the hearing tests done prior to 2014, which was not the case.
On March 17, 2021, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act") and regulations, and by policies established by the WCB's Board of Directors.
Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.
What constitutes an accident is defined in subsection 1(1) of the Act, 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.
WCB Policy 22.214.171.124, Noise-Induced Hearing Loss (the "Policy"), notes that permanent hearing loss can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise. The Policy outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The Policy 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 was self-represented at the hearing. The worker made an oral presentation and responded to questions from the panel.
The worker submitted it is just common sense that his hearing loss is work-related. He noted he worked in and around very loud equipment, operating at very high decibels, for 8 to 12 hours a day over a period of 30 years, and asked what else could have caused that kind of damage.
The worker said he noticed hearing loss 5 years into his job, even though he was provided with hearing protection. The worker said he wore the hearing protection religiously, but it was obviously not sufficient. He noted that while the WCB had referred to his participation in recreational or non-work related activities, he had not participated in recreational activities or social situations that would have produced this level of hearing loss.
The worker questioned the hearing tests which were performed in 2001 and 2002, and submitted that they were misleading or incorrect. He said the tests were done in a trailer, using very old equipment and were ridiculous. He said he did not remember whether the employer did any hearing tests after that.
The worker noted that the government had provided him with hearing aids in or around 2014, but that like all things, they wear out and need to be replaced. He said the government provider even told him that when the hearing aids wore out, he should go to the WCB and they would provide him with a new pair, so that was what he had done.
The worker said he was not trying to scam the WCB or to rip them off. The worker submitted that his hearing is becoming progressively worse. He emphasized that it is not that he wants to wear hearing aids, but that he needs them.
The employer was represented by its Case Manager, Disability Management. The employer's representative provided a written submission dated September 1, 2021, but did not otherwise participate in the hearing of this appeal.
The employer's position was that the Review Office decision of March 12, 2021 appropriately reflected the facts of this case and should be upheld.
The employer's representative submitted that in his work between 1982 and 2002, the worker was not exposed to continuous, hazardous noise for 8 hours per day. The representative submitted that noise exposure occurred on an intermittent basis and the worker was not in close proximity to hazardous noise. The representative noted that the worker had further confirmed that hearing protection was provided.
The employer's representative submitted that Review Office correctly noted that between 2002 and 2011, the worker would not have been exposed in close proximity to high noise levels, even when delivering or retrieving parts. The representative further noted that where the worker would be in the vicinity of such noise on his delivery routes, the exposure would be occasional and transient and he would be wearing hearing protection.
The employer's representative submitted that neither of the audiograms on file, dated 2001 and 2002, showed significant hearing loss, and a slight loss was only indicated in one ear. The representative submitted that a unilateral hearing loss was inconsistent with a work-related cause.
In conclusion, the employer's representative submitted that the WCB and Review Office completed thorough reviews of recorded audiogram reports, noise level readings, and applicable policies, and accurately concluded that the evidence did not support a finding of an acceptable claim for noise-induced hearing loss from hazardous exposure while employed by the employer. The representative therefore submitted that the worker's appeal should be denied.
The issue on this appeal is whether or not the claim is acceptable. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a noise-induced hearing loss during the course of his employment due to exposure to high levels of noxious noise as set out in the Policy. The panel is unable to make that finding, for the reasons that follow.
The Policy provides that not all hearing loss is caused by exposure to noise at work, and sets out the criteria which must be met in order to establish that a noise-induced hearing loss occurred at work. The criteria provide that the worker must have been exposed to noxious 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 is reduced by half.
The panel acknowledges the worker's comment that it is common sense in the circumstances that his hearing loss is work-related. The panel notes, however, that not everyone who works around noisy equipment or with such noise will develop noise-induced hearing loss and that more is required, in terms of objective data, in order to satisfy the criteria for such a claim under the Policy.
Based on our review of all of the information which is before us, the panel accepts that the worker worked in a noisy environment and was exposed to loud noise at work. The panel also accepts that the worker has hearing loss. The panel is unable, however, to find that the threshold criteria for noise-induced hearing loss have been met or to connect the worker's hearing loss to his employment.
The worker acknowledged at the hearing that it was fair to say that the positions he worked in between roughly 1982 and 2002 were louder than those he worked in from 2002 to 2011. In response to questions from the panel, the worker described the work he was performing during those two periods of time. With respect to the earlier period, the evidence indicated that while the worker was working around very noise machines and units, for the most part he performed his work inside a truck with an enclosed cab, that he wore hearing protection, and that his exposure to noxious levels of noise was not continuous.
The worker further indicated that for the remaining 10 years of his employment, he was delivering materials to technicians in a facility where machines were being overhauled and noted that the loudest noise he was exposed to in that facility involved hydraulic pumps, which emitted a high-pitched whine. The worker confirmed that he was not working on the machines but was in and out of the facility with deliveries. The evidence again indicates that the worker's exposure to such noxious noise was intermittent and that he wore hearing protection.
The panel notes that the 2001 and 2002 audiograms show a slight hearing loss in only one of the worker's ears. The panel is unable to relate that slight hearing loss in the one ear to the worker's job duties or noise exposure at work. The panel notes that the next audiogram is not until 2014, or two to three years after the worker's employment ended.
A letter from a treating audiologist dated April 6, 2021 was provided in support of the worker's appeal. The audiologist stated that with one type of equipment the worker worked around, the engine could produce noise levels of 140dBA and calculated that when the worker was wearing his hearing protection, "…he is still being exposed to noise levels of 120.25dBA which is still able to damage his hearing." The audiologist stated that the worker was also exposed to a unit which could produce 113dBA, and that when wearing his hearing protection "…he is still being exposed to noise levels of 93.25dBA which is still able to damage his hearing."
The panel notes that while the audiologist states that exposure at such levels was able to damage the worker's hearing, there is a lack of any objective measure or objective evidence to support that this had occurred.
The employer submitted a report which included a noise level assessment of readings done at a different location, but noted the equipment that was measured was the same at the employer's other locations. As noted by the employer, the assessment indicated sound level testing for various equipment, none of which was recorded at 113 dBA or higher, which were the levels referred to by the treating audiologist in her April 6, 2021 report.
The panel notes that the treating audiologist also submitted a March 3, 2021 audiogram. The panel accepts that the audiogram indicates a worsening of the worker's hearing, but as indicated above, is not able to relate the worker's hearing difficulties or the worsening of his hearing to his employment.
Based on the foregoing, the panel is unable to find that the worker's hearing loss and ongoing hearing problems are causally related to his work or job duties. The panel therefore finds, on a balance of probabilities, that the worker did not sustain a noise-induced hearing loss during the course of his employment due to exposure to high levels of noxious noise as set out in the Policy. As a result, the worker's claim is not acceptable.
The worker's appeal is dismissed.
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 8th day of November, 2021