The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on April 20, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker provided the WCB with a Worker Hearing Loss Report on July 19, 2013 reporting gradual hearing loss that they attributed to their employment with the employer and which they first noticed after the previous year's hearing test at work. The worker reported wearing hearing protection was mandatory and had been worn through their whole employment. The worker also provided a Work History Summary detailing their job duties on an assembly line and being exposed to various types of machinery and equipment for 7 hours per day.

The employer submitted an Employer Hearing Loss Report on July 23, 2013. The employer reported the worker was exposed to impact tools approximately 7.5 hours per day for 40 hours per week and had been employed with them since February 27, 1980. The employer further advised they implemented a hearing protection program in 1982.

On July 26, 2013, the WCB received a copy of the May 29, 2013 audiogram for the worker's hearing test of that date. The audiologist noted the worker's reporting of chronic tinnitus in both ears for the last 1.5 years and as a result of the testing, indicated the worker had bilateral sensorineural hearing loss "…most likely due to noise exposure…" and recommended bilateral hearing aids. On the same date, the WCB received audiograms from 1980 to 2012 from the third-party testing company on behalf of the employer.

When the worker contacted the WCB on July 30, 2013 to discuss their claim, they confirmed they had not sustained any injuries to their ears or had surgery. The worker further confirmed they wore hearing protection throughout their employment. As well, the worker noted they did participate in stock car racing but as a driver, not in the pits. On August 1, 2013, the employer provided the WCB with a sound level survey from 2003. The WCB contacted the worker on August 2, 2013 to gather further information. The WCB advised the worker that the employer noted their hearing protection program did not start until 1982 but that the worker had started their employment in 1980. The worker confirmed that while the hearing protection program did not begin until 1982, the employer always offered hearing protection and the worker confirmed they always wore it. On August 7, 2013, the WCB confirmed the Noise Reduction Rating (NRR) for the types of hearing protection worn by the worker was 26 decibels and 29 decibels.

On August 8, 2013, the WCB advised the worker their claim was not acceptable as it could not establish they had been exposed to noxious noise at work as required by the WCB policy. The WCB confirmed the noise level testing information from the employer indicated the average noise levels in the area where the worker performed their job duties ranged from 90.9 decibels to 92.5 decibels and that their hearing protection provided NRR of 26 and 29 decibels. Thus, the worker would not have met the criteria for noise-induced hearing loss of exposure to an average of 85 decibels for eight hours a day for a minimum period of two years.

The worker requested reconsideration of the WCB's decision to Review Office on March 12, 2014. The worker enclosed copies of their audiograms, pointing out fluctuations in their threshold measurements between 1982 and 2013 and noting that their hearing had deteriorated over that time period as a result of exposure to noise at work. On March 26, 2014, the worker provided Review Office with a copy of a letter in support of their request from their treating audiologist. Included with the letter was a medical article indicating that NRR of hearing protection may not be sufficient to prevent hearing loss. The audiologist opined the employer did not provide the worker with custom fitted hearing protection and as such, the worker's hearing deteriorated from noise exposure at work. Review Office returned the worker's file to the WCB's Compensation Services for further review and for an opinion by the WCB's Ear, Nose and Throat (ENT) consultant.

The WCB contacted the employer for further information on the noise level testing conducted and on May 26, 2014, received a copy of a 2013 Sound Level Survey. On August 5, 2014, the employer confirmed they did not have any noise level testing results prior to 2000.

The WCB ENT consultant reviewed the worker's file on August 23, 2014. As the worker indicated they began their employment with the employer prior to the hearing protection plan commencing, the WCB asked the consultant whether the hearing test conducted on the worker in 1982, when the employer's hearing protection plan started, indicated noise-induced hearing loss (NIHL). The consultant answered that "The 1982 audiogram shows the hearing to be within the normal range in both ears with no signs of NIHL."

On August 27, 2014, the WCB advised the worker their claim was not acceptable, noting that even considering the reduced NRR of the provided hearing protection, the worker would not have been exposed to sufficient noxious noise to meet the WCB threshold. Further, the WCB relied upon the opinion from their ENT consultant that the worker's hearing was normal in 1982 and showed no signs of NIHL.

On April 7, 2015, the worker submitted additional medical information and requested the WCB reconsider the August 27, 2014 decision their claim was not acceptable. The worker submitted a December 16, 2014 narrative report from their treating ENT specialist who provided an opinion that "[The worker] does have bilateral sensorineural hearing loss and tinnitus. In my opinion, this is a clear case of occupational noise exposure being the direct cause." On April 9, 2015, the WCB advised the worker the new medical information had been reviewed but there would be no change to the earlier decision.

The worker again requested reconsideration of the WCB's decision to Review Office on May 20, 2015, indicating their treating ENT specialist and audiologist both support the worker's hearing loss was a direct result of their exposure to noxious noise at work. On July 10, 2015, Review Office upheld the WCB's decision the worker's claim was not acceptable. Review Office found the evidence on file supported that the worker's consistent use of hearing protection, even with a 50% derating, reduced the worker's noise exposure to below 85 decibels on average and as such, did not meet the criteria for NIHL within the WCB's policies.

The worker's representative filed an appeal with the Appeal Commission on December 23, 2021. A teleconference hearing was arranged for April 20, 2022.

Reasons

Applicable Legislation and Policy

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable.

Section 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. The Act defines “accident” in s 1(1) 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.

The WCB's Board of Directors has established Policy 44.20.50.20, 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.”

Worker’s Position

The worker appeared at the hearing represented by a worker advisor, who made a submission on behalf of the worker. The worker offered evidence through answers to questions posed by the worker advisor and by appeal panel members.

The worker advisor outlined the worker’s position that the claim should be acceptable because the evidence confirms that the worker has noise induced hearing loss and that the worker was exposed to noxious noise at work with the employer above the threshold set out in the WCB Policy.

The worker advisor noted the December 16, 2014 opinion of the consulting ENT specialist provided to the worker’s family physician supports the worker’s position that the worker’s bilateral sensorineural hearing loss and tinnitus are the “clear” result of occupational noise exposure. The worker advisor also noted the March 18, 2014 opinion of another audiologist who reviewed the worker’s annual workplace hearing loss assessments that “…hearing loss was present by 1996 and gradually worsened. Since there was not a significant shift annually, [the worker] was not red flagged but there was a continual shift with no stabilization. …[The worker’s] hearing loss is mostly likely due to noise exposure in the work environment even though [the worker] used non-custom hearing protection that was provided."

The worker advisor noted the evidence that the worker consistently used hearing protection at work beginning in 1982 but that even with such protection, the worker was exposed to noise levels in excess of the threshold. The worker advisor highlighted that the peak levels of noise exposure from the 2003 noise survey, at approximately 147 dBA, are equivalent to the noise of a gunshot. How frequently or how long the worker would have been exposed to those peak levels of noise on a daily basis is not known, but at that level and taking into account the use of hearing protection, derated by 50%, exposure of less than 1 second per day would suffice to meet the WCB threshold.

The worker outlined to the panel their work history, noting that they were hired by the employer on February 27, 1980 and are still working there. The worker described their various roles with the employer over the years, noting that they used air-powered tools as well as hammers and chisels in doing their work. While the tools used and work environment are quieter today than in 1980, the work environment remains quite noisy. The worker confirmed that they work mostly 8-hour days, with occasional overtime and that during the course of the day they move about along the assembly line. On questioning by the panel, the worker confirmed that of the noise survey results from November 13, 2003, they were working nearest to the stations for west welding and buffing/chipping. The worker further confirmed that they did not work in the plant for which the employer provided sound level survey results from June 2013.

The worker described to the panel the foam inserts they used as hearing protection, noting that they had tried using earmuffs for protection but found those too hot. The worker confirmed that they kept their hearing protection in place except when required to remove it to obtain instructions or talk to someone at work.

The worker advised the panel that they first began to notice difficulties in hearing around 1985-86. Over time, it became hard to hear in conversation with others, with sounds muffled. The worker described mishearing or missing words altogether. They also developed ringing in their ears. The worker stated that their hearing loss gradually progressed over time and that currently they use hearing aids in both ears.

The worker described driving stock cars in the summer of 2013, approximately 7-8 times over the course of the season. When doing so, the worker had earphones in their ears, and wore a balaclava and helmet.

In sum, the worker’s position is that the evidence confirms that they have noise induced hearing loss and exposure to noxious noise in the workplace above the threshold required by the Policy; therefore, the claim should be accepted and the appeal granted.

Employer’s Position

The employer was represented in the hearing by a human resources officer who provided an oral submission to the panel on behalf of the employer.

The employer’s representative indicated that the employer did not take any position with respect to the worker’s claim but was able to provide the panel with some information in relation to the claim. The employer’s representative confirmed that a hearing protection program was implemented in the workplace beginning in 1982. They noted that the average noise levels as outlined in the employer-provided noise level surveys for the area where the worker was employed ranged from 90.9 – 92.9 dBA, with peak levels in that area from 136.2 – 146.9 dBA. The employer’s representative confirmed that the employer provided hearing protection to its workers, but not customized hearing protection.

Analysis

The issue on appeal is whether or not the claim is acceptable. For the panel to find that the claim is acceptable, it would have to determine that the worker’s hearing loss is the result of exposure to noise in the workplace. The panel was able to make such a finding for the reasons that follow.

While the evidence supports that the worker now has bilateral sensorineural hearing loss and that there was a history of workplace noise exposure, not all hearing loss is caused by or the result of noise exposure in the workplace. Further, not all workers experience hearing loss as a result of such noise exposure.

In this case, the employer provided noise level exposure information to the WCB including noise level surveys taken in November 2003 and June 2013. The worker’s testimony is that they did not work in the plant where the 2013 survey was conducted and the panel therefore did not consider that survey evidence. The worker noted that they did work near the areas identified in the 2003 noise level survey as “west welding” and “buffing/chipping”; therefore, the panel considered those survey findings. The 2003 sound survey findings indicate workplace exposure to noise on average of 87.2 dBA to 94.2 dBA, with peak levels at 147.1 dBA and 141.0 dBA respectively. As noted by the worker advisor and accepted by the Review Officer, the hearing protection used by the worker has a noise reduction rating of 29 – 33 decibels, and when derated by 50% to reflect the likely actual protection, provided noise protection to the worker in a range of 14.5 – 16.5 decibels.

This means that the worker’s likely average exposure to noise in 2003, with derated hearing protection factored in as noted above, ranged from approximately 70 – 77 dBA daily, with peak exposures of 124.5 – 130.6 dBA. While the average daily exposure would have been below the WCB threshold as set out in the Policy, the required daily exposure to the peak noise levels above the Policy threshold would range from approximately 3.5 seconds at 124.5 dBA to approximately 0.87 seconds at 130.6 dBA.

As outlined by the worker advisor in their submission, the WCB did not consider the peak level exposure information in determining that the worker’s noise exposure did not meet the threshold set out in the Policy. When the peak level exposures are considered, as set out above, it is apparent that the worker would only have required the briefest daily exposure to sustain a loss of hearing due to noise exposure.

The panel is satisfied on the basis of the evidence before us that the worker was more likely than not exposed to sufficient noxious workplace noise, even with hearing protection, to cause hearing loss.

The panel also considered the medical findings as to the worker’s hearing loss. We noted that the WCB ENT specialist on August 23, 2014 only considered the question asked by the case manager, as to whether there was evidence that the worker had hearing loss in 1982 and that the ENT specialist found the worker’s hearing in 1982, based upon the employer-provided hearing test results, “…to be within the normal range in both ears with no signs of NIHL.” As the worker’s exposure to noise in the workplace began in 1980 and continued through their employment with the employer, the panel reviewed the hearing test findings beyond 1982, noting that the employer arranged periodic hearing tests from 1982 to 2014. Those testing results, although not provided by an audiologist, indicated deterioration of the worker’s hearing beginning in 1996. This is confirmed by the March 18, 2014 opinion of the treating audiologist.

The first testing by a certified audiologist that indicated the worker’s hearing loss is from May 29, 2013, which the panel noted is prior to the worker’s participation in stock car racing. At that time, the audiologist noted “Bilateral sensorineural hearing loss most likely due to noise exposure. Hearing aid candidate in both ears.” The worker was also assessed by an ENT specialist on December 16, 2014 who concluded that the May 29, 2013 audiogram showed:

“…a bilateral symmetrical mild sloping to moderate sensorineural hearing loss. Speech discrimination scores were intact. I also reviewed [the worker’s] work related audiometric record which does show that the sensorineural hearing loss goes back for many years and correlates with [their] occupational history….In my opinion, this is a clear case of occupational noise exposure being the direct cause.”

The panel accepts and relies upon the opinion of the treating audiologist and the treating ENT specialist that the worker’s bilateral sensorineural hearing loss was related to the worker’s exposure to noxious occupational noise in their employment with the employer. The panel is satisfied that the requirements of the Policy are met in that there is evidence of noise-induced hearing loss and there is evidence that the worker was exposed to hazardous noise at work for a minimum of two years at levels above the threshold set out in the Policy.

On the basis of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s hearing loss is the result of exposure to noise in the workplace. Therefore, the worker’s claim is acceptable, and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of May, 2022