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 disability award. A file review was held on November 10, 2021 to consider the worker's appeal.

Issue

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

Decision

The worker is not entitled to a permanent partial disability award.

Background

The worker has an accepted claim for noise-induced hearing losing (NIHL) after they filed a Worker Hearing Loss Report with the WCB on October 16, 1989. A Summary provided to the worker’s file on May 3, 1990 and copied to both the worker and the employer noted the worker had noise induced hearing loss but that loss was “…not of a sufficient degree to entitle [the worker] to a disability award at this time.” It was noted the worker’s treating physician’s opinion the worker required two hearing aids, which were approved by the WCB. The Summary provided the WCB had established a standard minimum level for when hearing losses would be considered rateable. The standard minimum level was reported as:

The standard is a deficit of 35 decibels or over in each ear, and is arrived at by taking the average of the hearing loss recorded at 500, 1000, 2000, and 3000 Hertz frequencies. These results are applied to the Board’s disability rating schedule to determine the degree of compensation impairment.

In cases where the loss in one ear exceeds the standard of 35 decibels and the other ear is within the non-rateable range, ie. an average loss less than 35 decibels, a pension is not awarded unless the difference between the two is 30 decibels or more.

It was noted the average loss of hearing in the worker’s right ear was 25 decibels and in the worker’s left ear was 27.5 decibels and as such, the worker was not entitled to a disability award. It was further noted that if the worker’s hearing deteriorated further while they were employed and exposed to noxious noise, they may then be entitled to a disability award.

The worker underwent further audiological testing on June 9, 1998. The worker’s file, along with the new medical information, was reviewed by the WCB’s Ear, Nose and Throat (ENT) specialist on July 6, 1998. The WCB specialist noted the worker’s hearing had deteriorated, with the loss being worse on the left than the right; however, it was further noted the worker’s hearing loss did not qualify for a disability rating and award. The ENT specialist requested the WCB investigate why the worker’s hearing loss was greater on the left side and information was requested from the worker on July 13, 1998.

The worker had further audiologic testing done in 2003 and 2008 and received replacement hearing aids. On August 22, 2014, the worker underwent another audiologic examination, with the treating audiologist noting the worker again required replacement hearing aids. The worker provided the WCB with an updated Work History Summary on October 3, 2014, indicating they had been employed with a different employer from 1995 to 2006. On October 23, 2014, the WCB received an Employer Hearing Loss Report from that employer, along with noise level testing. The worker’s WCB case manager reviewed the information received from the employer and in a note to file dated October 30, 2014, found the worker would not have been exposed to sufficient enough noxious noise to meet the WCB threshold for NIHL. On the same date, the worker was advised their file had been reviewed and as they had not had any further occupational noise exposure to meet the WCB threshold since the disability award review in 1998, they were not entitled to a permanent partial disability award.

The worker requested reconsideration of the WCB’s decision to Review Office on March 2, 2015. The worker provided a detailed chronology of their employment history, along with a copy of a January 31, 2015 audiogram which noted the worker had a history of occupational noise exposure and indicated a severe high-frequency sensorineural hearing loss on the right side and mild to severe sensorineural hearing loss on the left. On April 27, 2015, Review Office determined the worker was not entitled to a permanent partial disability award for noise induced hearing loss. Review Office agreed with and relied on the opinion of the WCB ENT specialist that the worker’s loss did not meet the threshold to qualify for a disability award. Further, it was noted the worker did not have further exposure to noxious noise.

The worker filed an appeal with the Appeal Commission on August 23, 2021. A file review was arranged for November 10, 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 February 16, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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. The Act in effect on the date of accident is used when making decisions.

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 disability, as outlined in s 40(1) of the Act. Section 4(9) provides that the WCB may award compensation for a disability that does not result in temporary total disability.

The WCB has established Policy 44.20.50.20.02, Hearing Loss (the “Hearing Loss Policy”) to address how it will adjudicate claims related to occupational hearing loss. The Hearing Loss Policy states in part:

For a claim to be considered compensable, there must be exposure to noxious noise for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis, with a doubling factor of 3 decibels (i.e., for every increase of 3 decibels, the required time of exposure is reduced by half).

Determination of a worker’s permanent partial disability is provided for in WCB Policy 44.90.10.02 ("the PPD policy"). Pursuant to the PPD Policy, permanent partial disability awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the PPD Policy.

The PPD Policy deals with "Impairment of Hearing" and provides that:

When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1000, 2000, and 3000 hertz.

In order to merit and award, the average of the four speech frequency levels must be 35 decibels in each ear…

The worker has an accepted claim for noise-induced hearing loss, however, the WCB has determined that they are not entitled to a PPD award. The worker is appealing the WCB decision that he is not entitled to a PPD award.

Worker’s Position

The appeal was heard by way of a file review. The worker provided a written submission in support of their appeal and provided a further written submission in response to the additional medical information requested by the appeal panel.

The worker has provided their employment history which involved working in heavy construction and mining and later construction and property maintenance. The worker detailed specific job duties, including operating a crusher, jackhammer, dozer, loader, crane, and use of gas powered tools that they believe contributed to their hearing loss. The worker provided information on their usual work patterns and length of time they were exposed to excessive loud noise. The worker also advised that their hearing is becoming worse although they haven't worked in a loud environment in the past years.

The worker indicated they are seeking further compensation beyond the hearing aids they have been provided.

Employer’s Position

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

Analysis

The worker has an accepted claim for hearing loss and has been provided with hearing aids by the WCB. The worker is seeking a PPD award in relation to their accepted hearing loss.

The question on appeal is whether or not the worker is entitled to a permanent partial disability award. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained a hearing loss in both ears at the minimum level set out in the PPD policy, the worker’s permanent partial disability rating was not correctly calculated or that WCB Policies have been misinterpreted. As outlined in the reasons that follow, the panel was not able to make such a determination and the worker’s appeal therefore is denied.

The WCB has established and is bound to apply the Hearing Loss and PPD policies with respect to how it determines compensable hearing loss and calculates permanent disability ratings. The PPD Policy clearly sets out that disability calculations are to be made as set out in the Policy and that whenever possible and reasonable, ratings will be established strictly in accordance with the appropriate Schedule. In this case, it was determined that the hearing loss noted at a March 2, 1990 hearing assessment did not meet the minimum threshold of 35 decibels in each ear to receive a PPD award. A subsequent hearing assessment on June 9, 1998 also did not meet the minimum threshold to qualify for a PPD award.

On a balance of probabilities, the panel is satisfied that the WCB policies in place that are related to hearing loss and PPD ratings have been accurately interpreted and applied. The hearing loss did not meet the threshold required for a PPD award. Deterioration of the worker’s hearing beyond that which was identified as occupational in 1998 is not compensable. The appeal is denied.

Panel Members

B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of March, 2022