Decision #129/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A videoconference hearing was held on June 29, 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 February 28, 2020, reporting a gradual hearing loss which he attributed to his "work experience in general." Included with the Report was a Work History Summary, where the worker listed his employment history with various employers between 1965 and 2002.
On March 12, 2020, the WCB spoke with the worker and reviewed his claim. The worker confirmed the job duties he performed from 1965 to 1967 involved work where he was exposed to very little noise. With respect to his subsequent employment with the third party employer (the "third party") between 1967 and 1992, the worker indicated that in his later positions with that employer, he would not be outside at all on some days and would sometimes be outside for half a shift, and hearing protection was issued. The worker estimated that while working for the named employer (the "employer") from 1996 to 1998, he spent approximately 70% of his shift inside the building and 30% outside, and did not recall if he had hearing protection. He further indicated that he was employed outside Manitoba from 1998 to 2002, and in one location in particular he had to spend more time outside, being exposed to noise for up to an hour at time.
The WCB requested an Employer Hearing Loss Report from the employer and the third party on March 12, 2020. On March 19, 2020, the employer advised the WCB they were unable to confirm the worker's employment from 1996 to 1998.
On June 3, 2020, the WCB received a copy of the Employer Hearing Loss Report from the third party, who noted their objection to the WCB allowing the worker's claim. The third party noted the worker's job site was within the building, in an office environment, where the worker would not have been exposed to noxious noise. The Employer Hearing Loss Report indicated the worker had been employed with the third party from March 27, 1967 to his retirement and provided job demands analyses for the two positions held by the worker. The third party further noted the worker had not been provided with hearing protection as he worked indoors and was not exposed to high levels of noise during his employment. On June 12, 2020, the third party employer confirmed that they did not have any hearing tests for the worker.
On June 30, 2020, the third party provided the WCB with noise level testing for the worksite. That same day, the WCB contacted the worker to gather further information regarding his job duties with the third party. The worker advised that his office space was approximately 20 feet from the outside area where there was noxious noise, and that he would have to leave his office and go outside to be in that area. He estimated he would be outside about 40% of the time and would go outside on average about six times a day. The worker further confirmed that he wore ear muffs for hearing protection when he went outside and they "worked well."
On August 6, 2020, the WCB received a copy of a June 5, 2020 audiogram for the worker which documented mild sloping to moderately-severe sensorineural hearing loss on the right side and mild sloping to profound sensorineural hearing loss on the left, and recommended binaural hearing aids.
On August 12, 2020, the WCB's Compensation Services advised the worker that his claim was not acceptable. Compensation Services confirmed the worker's advice that he had worn hearing protection in the form of ear muffs, which were noted as having an average Noise Reduction Rating (NRR) of 28 dBA. Compensation Services advised that it had been determined based on noise level information provided by the third party that the worker would have been exposed to daily noise levels of 90 dBA, and that with the hearing protection, his exposure would have been reduced to 74.4 dBA. Compensation Services advised that as the worker's exposure to noxious noise would have been less than 85 dBA, his claim for noise-induced hearing loss did not meet the WCB's criteria for exposure to noxious noise.
On November 20, 2020, the worker requested that Review Office reconsider Compensation Services' denial of his claim.
On December 10, 2020, Review Office upheld the WCB's decision that the worker's claim was not acceptable. Review Office noted that the employer from 1965 to 1967 was inactive, and found that they were unable to confirm the worker was exposed to occupational noxious noise as required under the Policy in the absence of supporting evidence. Review Office accepted that the worker was exposed to different levels of noise while employed with the third party, but was unable to find that he was exposed to high enough levels of noxious noise on a sufficiently consistent basis to meet the threshold noise level requirements in the WCB's policy.
Review Office found that they were unable to confirm the worker's employment and noise exposure between 1996 and 1998. Review Office further determined that as the employers the worker was said to have worked for between 1998 and 2002 were not listed in Manitoba, they were unable to consider information pertaining to potential noise exposure from those employers.
On March 24, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On October 22, 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 and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, and policies established by 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.
"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.
The WCB's Board of Directors has established Policy 184.108.40.206, 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 was represented on the appeal by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker was supported at the hearing by his spouse, and responded to questions from his representative and from the panel.
The worker's position was that his claim should be accepted as the criteria for acceptance of a noise-induced hearing loss has been met in accordance with the Policy.
The worker's representative noted that the third party confirmed that the worker was employed with them from 1967 to 1994. The representative submitted the evidence supports that during the 17 years of his employment with the third party, the worker was exposed to noise levels in his particular work area which were well above the 85 decibels required under the Policy.
The worker's representative referred to a diagram of the worker's office work area which they had provided in advance of the hearing. The representative submitted that the diagram confirmed that the office was in the same area where aircraft were docked and departed using "pushback" and "powerback" procedures.
In his evidence at the hearing, the worker indicated the noise levels for a powerback were particularly high, as the engines had to be wound up to get the aircraft moving and rolling back from the gate. The worker commented that the engines were much noisier then than now. He noted that there was also a lot of moving of carts and containers which made a fair amount of noise, but this was much less than the noise from the jet engines.
The worker's representative noted that the worker reported he was issued hearing protection, but did not wear it as it was not required in his position, and that this was confirmed by the employer. The representative noted that a March 1986 survey of noise exposure, on file, confirmed that the noise levels of aircraft were documented as being as high as 118 decibels for particular planes during powerbacks or pushbacks, and that the majority of the sound levels were well above 90 decibels. The representative submitted that the planes were confirmed as being in the same area as the area where the worker had already been employed for nine years and where he continued working for another eight years.
It was submitted that with noise at over 118 decibels, the threshold exposure time under the Policy would be reduced to a matter of seconds. The representative noted that the 1986 survey confirmed that personnel were likely to be exposed to average sound levels of between 85 and 90 decibels on a routine basis and sound levels in excess of 115 decibels on a random basis, particularly during powerback procedures. The representative submitted that even with hearing protection, with levels of 115 or 118 decibels, the worker would have been exposed to noise levels well above 85 or 90 decibels.
In conclusion, the worker's representative submitted that the evidence supports that the claim is acceptable as the relationship between the worker's condition of noise-induced hearing loss was related to his employment with the third party, which was confirmed to have excessive noise factors on a daily basis to fit all the requirements of the WCB's criteria.
The employer did not participate in the appeal.
Third Party's Position
The worker's employer from 1967 to 1992, the third party to the proceedings, was represented by its Case Manager, Disability Management. The third party's representative provided a written submission in advance of the hearing, but did not otherwise participate in the hearing of the appeal.
The third party's position was that Review Office's December 10, 2020 decision appropriately reflected the facts of the case and should be upheld.
The third party's representative submitted that the evidence showed the worker was exposed to intermittent noise from various sources during his employment with the third party, which noise was measured as at most 65 decibels, and was confirmed to be less than the 85 decibels required under the WCB's Policy.
The representative noted that noise-reducing hearing protection was provided and confirmed by the worker to have been appropriately worn when he was working in areas where the noise levels were expected to increase due to equipment and machinery.
In conclusion, the third party's representative asked that the panel maintain the Review Office decision, as the evidence did not support a finding that the worker had an acceptable claim for noise-induced hearing loss from hazardous exposure while in the third party's employ.
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 as a result of exposure to high levels of noxious noise during his employment with the third party as set out in the Policy.
Based on our review and consideration of all of the available evidence, on file and as presented at the hearing, and the submissions of the parties, the panel is unable to find that the worker sustained a noise-induced hearing loss as a result of his employment with the third party.
The panel notes that the evidence indicates the worker was not exposed to high levels of noise on a continuous or consistent basis. The evidence further indicates that the worker would wear hearing protection when he went outside or when he felt it was needed or appropriate. In this regard, in response to a question from the panel as to whether he would put hearing protection on when he left his office, the worker stated: "If I knew I was going to be outside, or a good chance I was going to be outside, I would at least take it. Sometimes I wouldn't have to put it on, but you take it with you anyway."
With respect to hearing protection, the worker stated that the protection he used was earmuff style. The worker further noted that with the third party "…the amount of equipment that we had was the best they could get. And that included hearing protection, gloves and everything basically…"
The panel would also note that while the worker's representative relied a portion of the 1986 survey, and exposure to powerback procedures in particular, as supporting their position on the appeal, the survey report went on to indicate that "Any class 'A' hearing protector will provide adequate protection against the noise encountered during powerback operations."
Based on the foregoing, the panel finds, on a balance of probabilities, that that evidence does not support that the worker sustained a noise-induced hearing loss as a result of exposure to high levels of noxious noise during his employment with the third party as set out in the Policy. The panel therefore finds that the 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 9th day of November, 2021