Decision #71/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on May 17, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On April 11, 2016, the worker submitted a Worker Hearing Loss Report and Work History Summary to the WCB, reporting gradual hearing loss that they first noticed in 2004 and attributed to their employment. The worker reported wearing hearing protection while working for the employer from 1979 to 1994. In the Work History Summary, the worker indicated employment with the employer from 1979 to 1994, and noted their hearing was "100%". The worker also indicated "some hearing loss" with their employers from 1994 to the present.
When the WCB discussed the claim with the worker on April 14, 2016, the worker confirmed first becoming aware of their hearing difficulties in 2004 and provided the WCB with details of their employment history, their job duties with the various employers and whether or not they wore hearing protection with each employer. The worker also confirmed they did not have any medical conditions that could have caused hearing loss, they did not have tinnitus and had not been exposed to loud blasts or explosions. The worker indicated they were not involved in any activities outside of their employment that may have involved loud noise. The worker further noted that while employed with the employer, they were exposed to noise for 8 - 16 hours per day but wore the hearing protection provided by the employer. The worker could not recall any hearing testing conducted while they were employed by the employer.
On April 29, 2016, the employer provided an Employer Hearing Loss Report to the WCB indicating due to the length of time that had passed since the worker had been employed, they could not confirm the worker's employment or locate any records regarding testing done for the worker by the employer. In a note to the worker's file on May 5, 2016, the WCB adjudicator reviewed WCB records of the employer’s noise level surveys from 1972 and 1984, which indicated the worker would have been exposed to between 87 - 113 dBA of noise while working with the employer. The adjudicator also noted that the worker indicated wearing the provided hearing protection as much as they could, which the adjudicator interpreted as inconsistent use of hearing protection. On this basis, the adjudicator found the worker would meet the WCB's criteria for noise exposure; however, a review by a WCB Ear, Nose and Throat (ENT) specialist to determine a diagnosis was also required.
The worker’s treating audiologist provided a report to the WCB dated May 6, 2016, outlining that the worker’s April 4, 2016 audiogram assessment indicated "…a moderate conductive loss below 500, Hz, sloping to a moderately-severe sensorineural loss on the right ear. The left ear results indicate a severe sensorineural loss above 1000 Hz."
The WCB ENT specialist reviewed the April 4, 2016 audiogram, along with the worker's file on May 10, 2016 and provided an opinion that the audiogram was not typical for noise-induced hearing loss but indicative of presbycusis and indicated it would be helpful to be able to review any earlier audiograms for the worker. On May 16, 2016, the WCB advised the worker that while it was confirmed they had been exposed to noxious noise while working for the employer, the WCB ENT specialist opined the evidence did not support the worker's hearing loss was causally related to noise exposure in their workplace.
The worker requested reconsideration of the WCB's decision to Review Office on June 10, 2016, submitting that as they had been exposed to noxious noise, the WCB should accept their claim and noting they would be providing evidence to confirm their employment with the employer. The worker also noted the WCB had not considered their noise exposure with their other employers since they had stopped working for the employer. On June 15, 2016, the worker submitted cards from the employer dated between 1985 and 1994, indicating the worker "…satisfactorily passed vision, colour sense and hearing examination…" conducted by the employer in accordance with their requirements under federal regulations. On June 29, 2016, Review Office contacted the employer to request information on who performed the testing for the worker and on August 19, 2016, the employer advised they were unable to provide further information on the testing.
Review Office found on August 29, 2016 that the worker's claim was not acceptable. Review Office acknowledged that while working for the employer, the worker was exposed to noxious noise; however, Review Office relied on and accepted the opinion of the WCB ENT specialist the April 4, 2016 audiogram was not typical of noise-induced hearing loss and indicated age-related hearing loss or presbycusis and as such, it could not be established the worker sustained noise-induced hearing loss as a result of their noise exposure at work.
The worker submitted additional audiograms dated May 31, 2016 and May 23, 2019 and requested their claim for noise-induced hearing loss be reconsidered. The worker noted the audiologist who performed the testing on April 19, 2019 advised the worker the results of the testing indicated "…job-related hearing loss…" and advised the worker to resubmit their claim to the WCB.
The WCB ENT specialist reviewed the audiograms and the worker's file and on June 11, 2019, offered an opinion that the May 31, 2016 and May 23, 2019 audiograms were "…suggestive of bilateral noise induced hearing loss" and further stated that "Although the configuration of the April 4, 2016 audiogram is consistent with presbycusis and in the absence of any earlier audiograms, the probability of a combined noise induced hearing loss and presbycusis cannot be ruled out."
On June 26, 2019, Review Office determined the worker's claim was not acceptable. Review Office found that while the WCB ENT specialist provided that the audiograms in 2016 indicated signs of noise induced hearing loss, those tests were conducted approximately 24 years after the worker had stopped working for the employer and as such, Review Office was unable to relate the noise induced hearing loss to that employment.
The worker filed an appeal with the Appeal Commission on February 15, 2022 and a videoconference hearing was arranged.
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 provisions of the Act in effect as of the date of the worker’s accident are 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,
(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 126.96.36.199, 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 appeared in the hearing on their own behalf and made an oral submission to the panel in support of their appeal. The worker also provided testimony through answers to questions posed by members of the appeal panel.
The worker’s position is that the evidence establishes that they have bilateral noise induced hearing loss and that they were exposed to noxious noise levels throughout their employment with the employer, from 1979 to 1994. Therefore, the worker believes that their claim should be acceptable.
The worker described to the panel the nature of the noise they were exposed to during their 16 years of working with the employer, noting they were often exposed to whistle noise in excess of 100 dBa. The worker noted that they first noticed difficulty with their hearing in 2004 and had formal testing at that time although the results of that assessment are no longer available. The worker also recalled, in response to questioning by the appeal panel, that their spouse told them in 2004 that they had a hearing problem and that is why the worker went for testing at that time.
The worker stated that their next hearing test was conducted in 2016, although they noted that the employer did some informal, in-office testing during the worker’s employment. The copies of the Vision, Colour Sense & Hearing cards in the WCB file confirm the employer’s efforts in this regard. The worker submitted that although they left employment with the employer in 1994, they believe that the hearing loss relates to that employment because of the length of their employment, and therefore the extent of the exposure in that employment environment.
On questioning by the panel, the worker could not at first recall why they had two separate hearing tests in spring 2016, but then was able to recall that the first test revealed a need for cleaning of their ears and after the worker had their family doctor do this, they returned for the second test.
With respect to the WCB ENT Advisor’s opinion that the worker’s hearing loss findings suggest presbycusis, or age-related hearing loss, possibly in combination with noise induced hearing loss, the worker noted the opinion of the testing audiologist addressed “To whom it concern” that questioned the WCB’s decision that the worker’s hearing loss was not related to workplace noise exposure. The worker indicated that the testing audiologists support the worker’s position that their hearing loss is the result of workplace exposure to noise.
In sum, the worker’s position is that the evidence confirms they developed noise induced hearing loss as a result of their workplace exposure to noise and therefore the claim should be acceptable.
The employer did not participate in the appeal.
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 not able to make such a finding for the reasons that follow.
While there is evidence to support 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 from such workplace noise exposure.
In this case, the WCB made a finding that the worker’s noise exposure in the course of their employment would have exceeded the threshold required by the Policy. There is no evidence
before the panel to contradict that finding and we therefore accept the WCB’s determination in this regard.
On first review of the audiological results from April 4, 2016, the WCB ENT advisor was of the view that the findings were more likely indicative of presbycusis than of noise induced hearing loss. The panel noted that the worker was tested again on May 31, 2016 and explained in their testimony that this second test took place after they saw their family physician to have their ears cleaned, as the April 4, 2016 testing results indicate that the worker’s right ear was approximately 80% occluded and that irrigation by a family physician was recommended. When the WCB ENT advisor next reviewed the file, they considered the May 31, 2016 and May 23, 2019 findings and noted that the configuration of these audiograms is “suggestive of bilateral” NIHL. The ENT advisor also confirmed their opinion in respect of the April 4, 2016 audiogram noting that “the probability of a combined noise induced hearing loss and presbycusis cannot be ruled out.” The worker’s treating audiologists have also provided support for the worker’s position that their hearing loss is noise induced.
On the basis of the audiological testing results reviewed and the opinions provided, the panel is satisfied that the evidence supports a finding that the worker has noise induced hearing loss.
The panel then considered whether the evidence establishes a causal relationship between the worker’s exposure to noxious noise in the workplace and their hearing loss that first became evident no less than 10 years after the worker left that employment. The panel acknowledges that it is possible that the worker sustained NIHL as a result of their exposure to noxious noise in the course of their employment, but we must find that the evidence supports a determination that it is more likely than not that the hearing loss occurred as a result of that exposure. A possible causal relationship is not sufficient to establish that the worker’s NIHL is the result of their workplace exposure prior to 1994.
With the passage of some ten years from when the worker left the employer’s workplace environment to when they first were made aware of some hearing loss in 2004, the panel is challenged to establish a connection between the proposed cause and effect. During this period, the worker was employed in other environments and may have had other workplace or non-work-related exposures to noxious noise. We note there is no evidence of any audiological testing prior to 1994 when the worker left their employment until 2004 when the worker recalled they first noted hearing difficulties and got tested. Further, as noted above, the 2004 testing results are not available to confirm whether the worker had hearing loss at that time. This challenge is further heightened by the subsequent passage of another 12 years before there is any evidence of audiological testing results that confirm the worker sustained NIHL. The panel is unable to draw a line of causation from the workplace exposure to noxious noise that ended in 1994 and the noise induced hearing loss first evidenced in 2016.
On the basis of the evidence before us, and on the standard of a balance of probabilities, the panel cannot establish that the worker’s bilateral sensorineural hearing loss was the result of the workplace exposure to noise. Therefore, we conclude that the claim is not acceptable, and the worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of June, 2022