Decision #43/22 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on November 25, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on February 20, 2019, reporting a gradual hearing loss as a result of his 35-year employment with the employer. The worker noted in the Report that he wore hearing protection when it became available in the 1990s. He also reported having participated in activities such as snowmobiling and motorcycling, with ear plugs being worn while travelling on the highway, and right-handed firearm use while hunting. In the Work History Summary, the worker noted that his job duties included working around locomotive engines, air guns and cranes, in noisy shop conditions, until he retired from his employment with the employer in September 2014.

On February 22, 2019, the WCB received a Hearing Assessment report dated February 6, 2019. The audiologist reported that the assessment indicated a "…mild high frequency loss in the right ear and a mild sloping moderate-severe high frequency loss in the left ear. Both losses have been deemed to be sensori-neural in nature." Bilateral hearing aids were recommended.

The Employer Hearing Loss Report was received by the WCB on April 2, 2019. Included with that Report were copies of previous audiograms and noise level testing for the worker's job site. It was also noted on the Hearing Loss Report that the worker had reported an injury to his left ear on a previous audiogram. An audiogram dated October 19, 2011 indicated the worker advised the technician he had ringing in his left ear due to "air pressure blown when apprentice."

On April 10, 2019, the worker's WCB case manager reviewed the worker's file, and noted the worker wore hearing protection when it became available, but hearing protection was not mandatory until approximately 1990. Noise levels, as provided by the employer, were noted to be over 85 decibels. The case manager then requested a review of the file by a WCB Ear, Nose and Throat (ENT) consultant.

On May 1, 2019, the WCB ENT consultant reviewed the worker's file and opined that the worker had noise-induced hearing loss, the first indication of which appeared on audiograms in 2003 for his left ear, and 2011 for both ears. The consultant went on to opine that "The worker indicated that he is/was a right-handed firearm user. This would explain the asymmetric hearing loss with the left ear being worse." On May 22, 2019, the WCB advised the worker that his claim was accepted and he was entitled to two hearing aids.

On February 4, 2020, the employer requested that Review Office reconsider the WCB's decision. In their submission to Review Office, the employer noted that the worker reported hearing protection was mandatory by the mid-1990s, and he had worn hearing protection since the 1990s. The employer submitted that the noise exposure for the worker's area from the mid-1990s onward, with hearing protection, would have been 76.1 dBa. The employer submitted that the worker's audiograms in 1999 and 2003 indicated a notch in the right ear at the 4000 Hz range, which shifted to the 6000 Hz range in 2011. The employer noted that the worker was working in the same location, around and with similar equipment, from 1979 on, and submitted that if the worker was exposed to occupational noise, "…the notch would further deepen in the same frequency, not shift to a higher frequency notch." The employer submitted that the evidence supported that any hearing loss after 1999 was non-occupational and the worker's claim should not be acceptable.

On March 31, 2020, Review Office overturned the WCB's decision that the worker's claim was acceptable. Review Office accepted the opinion of the WCB ENT consultant that the worker's asymmetric hearing loss was explained by the worker's right-handed firearm use, and noted the file evidence did not identify anything from a work-related perspective which would account for such a difference. Review Office further found that the evidence did not support the worker had bilateral noise-induced hearing loss until 2011. Review Office further noted that the bilateral noise-induced hearing loss occurred between 1999 and 2011, when the worker stated he wore hearing protection. Review Office found that the worker's use of hearing protection would have reduced his level of exposure to noxious noise. Review Office found that if the worker had been exposed to noxious level of noise from the time he began his employment in 1979, his bilateral noise-induced hearing loss would have occurred sooner. Review Office therefore determined that the worker's claim was not acceptable.

On July 21, 2020, the WCB received a copy of a letter from the worker's representative to the treating ENT specialist, requesting an opinion with respect to the worker's hearing loss claim. By letter dated September 15, 2020 and copied to the WCB, the worker's ENT specialist responded to the worker's representative's request. The specialist noted agreement with the WCB ENT consultant's opinion that firearm use may have contributed to the worker's asymmetric hearing loss; that wearing hearing protection would mitigate and slow hearing loss progression; and that the worker's age may have been a contributing factor in his hearing loss. The treating ENT specialist advised, however, that he disagreed that all hearing loss is symmetrical, noting there are other conditions that may contribute to the development of asymmetric hearing loss. The specialist stated that he firmly believed the worker's occupation had "at least at a balance of probability of 50 percent or more a contribution to progressive hearing loss."

On October 20, 2020, the worker's representative requested that Review Office reconsider their March 31, 2020 decision. In their submission to Review Office, the representative referred to the report from the treating ENT specialist, as well as additional information they had submitted, including further detail of the worker's job duties and exposure to noise, and copies of medical articles supporting their position that the worker's noise-induced hearing loss developed gradually.

On January 6, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found that the additional information that had been provided did not support a change in their earlier decision. Review Office accepted the WCB ENT consultant's opinion that the worker's asymmetric hearing loss was explained by his being a right-handed firearm user, and found the worker's bilateral hearing loss occurred during a period of time when the worker wore hearing protection, which would have reduced the level of noxious noise to which he was exposed.

On April 16, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a hearing was arranged for November 25, 2021.

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 March 23, 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 Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, and policies of the WCB's Board of Directors. As the date of injury is identified as October 19, 2011, the applicable legislation is the Act as it existed at that time.

Subsection 4(1) of the Act, as at the date of injury, provided that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.

What constituted an accident was 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, 

(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.

"Occupational disease" was defined in part, as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; or 

(b) peculiar to the particular employment; 

but does not include 

(c) an ordinary disease of life…

Subsection 4(4) of the Act dealt with the cause of occupational disease, and provided:

4(4) Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

With respect to claims for hearing loss, the injury can be caused by either a workplace event (trauma or a single exposure to occupational noise) or prolonged exposure to excessive noise. The worker's claim has been advanced on the basis of long-term exposure to noxious levels of occupational noise resulting in NIHL.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The Policy states, 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 was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.

The worker's position was that he suffered from noise-induced hearing loss as a result of his exposure at work to noxious noise which meets the requirement of the Policy, and his claim for occupational noise-induced hearing loss is acceptable.

The worker's representative submitted that the worker was employed with the employer for 35 years, first as a labourer, then as an electrical worker, and finally as a diesel mechanic/electrician.

The worker's representative submitted that the worker was not required to use hearing protection until the late 1990s, and was initially only required to do so in a particular area. The representative noted that in statements provided in advance of the hearing, co-workers had also indicated that while hearing protection was available before the end of the 1990s, workers were not educated on how to use it, and hearing protection was not enforced.

The worker described the duties he performed, the tools he used, and the facilities and environment he worked in through the course of his career with the employer. The co-workers had also provided information in their statements about the tools used, the noise they made and the working environments.

The worker's representative submitted that the worker's treating ENT specialist opined that the major contributing factor to the worker's noise-induced hearing loss was his work exposure. The representative submitted that there was no medical opinion to counter that opinion, and that in fact, the WCB ENT consultant appeared to feel the noise-induced hearing loss claim was acceptable, and accepted responsibility for two hearing aids.

The worker's representative noted that the treating ENT specialist disagreed with the WCB ENT consultant on the issue of asymmetric hearing loss. The specialist was of the opinion that the asymmetrical nature of the worker's noise-induced hearing loss could depend on many factors, including "handedness" of the individual and the location of the sound generator. The representative submitted that the specialist's opinion is supported by the medical literature which had been provided previously and referred to factors including individual physiological differences and greater susceptibility to noise-induced hearing loss in the left ear. The representative asked that the panel place significant weight on the opinion of the treating ENT specialist

The worker's representative submitted that the noise level study which the employer had provided was not relevant to this case, as it took place after the worker had retired and more than four years after he had a confirmed hearing loss. The representative submitted that by 2015, standards and hearing protection on tools and in workplaces had improved, and the study did not reflect the level of noxious noise the worker would have been exposed to in the course of his employment.

In conclusion, the worker's representative submitted that the Policy contains mandatory language, and based on the Policy, the claim should be accepted. The worker had noxious noise exposure for his entire career, a large part of which was without hearing protection. He also has noise-induced hearing loss, and his appeal should be allowed.

Employer's Position

The employer was represented by its WCB specialist.

The employer's representative advised that the employer supported Review Office's January 6, 2021 decision that the worker's claim was not acceptable.

The employer's representative commented that he did not have a lot of information to add, and indicated he was there more to observe, and to participate if needed. The representative noted that the employer relies heavily on the WCB to adjudicate claims according to the WCB's policies. He acknowledged that the worker worked in a noisy environment and had a long career with the employer, and indicated he had no reason to question what the worker had said at the hearing.

Analysis

The issue which is before the panel 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 suffered 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 evidence shows that the worker's hearing loss is asymmetrical, in that it developed earlier and is significantly worse in the worker's left ear than his right. The panel acknowledges the treating ENT's comment that not all hearing loss is asymmetrical. The panel is of the view, however, that an asymmetric noise-induced hearing loss in a work-related case is problematic absent a clear explanation for that asymmetry. While the worker's representative and the ENT specialist have suggested possible explanations for an asymmetrical hearing loss, the panel is unable to find that these explain the significant differences between the development of the hearing loss in the worker's left and right ears in this case.

The criteria under the Policy 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. That is the threshold that must be met. Based on the evidence before us, the panel is not satisfied that this noise threshold has been met.

The worker described his work duties at the hearing. The panel also carefully questioned the worker with respect to his duties in his various positions over the years, and the different areas and environments in which he worked. The worker indicated that his work varied, that much of his work involved troubleshooting. In that role, he worked both inside the shop and outside, and he would be moving around a fair amount as a result. Asked about anything that had changed over the years that might account for the change in his hearing, the worker said only that he had more to do in the last few years as he had to train other workers.

The evidence indicated that hearing protection was available to the workers, and the worker wore that protection, from the mid to late 1990s forward. The worker and his representative submitted that the worker was without hearing protection up until that time, and therefore for much of his career. The panel notes, however, that the worker did not have noise-induced hearing loss prior to 1999, with the first indication of such hearing loss being in 2003 in his left ear only.

The panel is further satisfied that the evidence indicates that the employer had a fairly robust hearing protection program from the mid or late 1990s. The worker noted that at least initially, the hearing protection was only mandated in one particular area, and was enforced at least in that area once hearing protection became mandatory. The worker's evidence in this regard at the hearing was that "you were not allowed in that area without it or you, if you happened to get caught with it you were given demerits, so that's how critical the sound levels were."

Following the hearing, the panel requested further information with respect to any noise level studies that had been done, and was provided with a copy of a 2003 noise level survey which was specific to the shop and job site where the worker worked. The survey indicated that 4 out of the 5 dosimetry readings taken as part of that survey exceeded the employer's Hearing Loss Prevention Policy recommended maximum level of 84 dBA, but were all below the federal level of 87 dBA, with the average dosimetry results ranging from 83.4 to 86.2 dBA. It was further noted in that survey that in accordance with the employer's hearing loss prevention program, anyone potentially exposed to a time-weighted sound pressure level in excess of 84 dBA over the course of their shift should be wearing hearing protection, and should wear hearing protection at all times within "signed" areas.

Based on our review of all of the information which is before us, and taking into account the use of hearing protection, and the noise levels as reported in the 2003 and the 2015 studies, the panel is unable to find that the noise levels to which the worker was exposed met the criteria under the Policy. The panel is further unable to find that the worker's bilateral or left or right hearing loss was causally related to his work or job duties with the employer.

The panel accepts that the worker worked in a very loud environment. The panel is unable to find that that the worker suffered a noise-induced hearing loss as a result of his work or job duties.

As a result, the panel finds, on a balance of probabilities, that the worker did not suffer 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 worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of May, 2022

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