Decision #87/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on June 2, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
On November 5, 2015, the WCB received a Worker Hearing Loss Report from the worker, reporting a gradual hearing loss which the worker attributed to his work experience in general with the employer. The worker indicated that he first started noticing his hearing loss approximately 11 years earlier and had been wearing hearing protection at work for 15 years. Included with the worker's report, was a Work History Summary detailing the worker's employment history, and an October 15, 2015 audiogram indicating the worker had moderate to mild sensorineural hearing loss on the right and mild sloping to moderate/severe sensorineural hearing loss on the left.
The WCB contacted the worker on November 9, 2015 to discuss the claim. The worker confirmed he noticed the onset of his hearing loss approximately 10 or 11 years ago and could not identify a reason why there was a difference between the hearing in his right and left ears. The worker further confirmed he did not have significant exposure to loud noise outside of work and was a left-handed rifle shooter. The worker also provided the WCB with additional details of his previous employment. The worker noted that in his first job, which involved delivering parts, he would have had only moments of noise exposure and did not wear hearing protection. In his second job, he had intermittent exposure to noise, and noise protection was also not worn. He started his current employment with the employer in 1980, and did not recall wearing hearing protection initially. He indicated the employer was encouraging the use of hearing protection by the mid-1980s, and by 1990, he was wearing hearing protection consistently. The WCB advised the worker of the criteria for a hearing loss claim and that further investigation would be required.
On November 18, 2015, the WCB received an Employer Hearing Loss Report from the worker's first employer who noted they did not have records available. It was further noted that the worker would not have been exposed to loud noise other than noise related to driving a car if he was delivering parts. On November 26, 2015, the worker's current employer provided the WCB with an Employer Hearing Loss Report indicating the worker had been employed with them since March 24, 1980 but had not reported any hearing loss. The employer advised that a hearing protection plan had been implemented in 1970 and provided details on the type of hearing protection provided. Also included with the Report were hearing test results for the worker from 1990, 1993, 1997, 2000 and 2001 and noise level surveys for various worksites or work areas for the employer.
On December 2, 2015, the WCB requested that a WCB Ear, Nose and Throat (ENT) consultant review the worker's file, noting the worker did not have further exposure to noise after 1984. On December 6, 2015, the consultant advised there was no audiogram from a certified audiologist on the worker's file, and asked that the WCB obtain one. On January 5, 2016, the WCB wrote to the worker and advised his file would be placed in abeyance pending receipt of testing performed by a certified audiologist.
The WCB subsequently received an audiogram from the worker's treating audiologist dated February 12, 2020, together with a letter dated February 14, 2020. The audiologist opined that the audiological test results indicated the worker had "…moderate sensorineural hearing loss for the right ear and a mild sloping to moderate sensorineural hearing loss for the left ear." The audiologist recommended binaural hearing aids for the worker.
On March 29, 2020, the WCB's ENT consultant reviewed the worker's file. The consultant opined that the earliest audiogram on file showing signs of noise-induced hearing loss was in 1990. The consultant further commented that the audiogram showed asymmetric hearing loss with the right ear being worse, and that this could be attributed to the worker's history of left-handed firearm use, unless there was an occupational explanation.
On April 23, 2020, the WCB contacted the worker and requested information on which areas he had worked at on the employer's premises, which the worker provided. In a note to file, the worker's WCB adjudicator set out the noise level survey readings for each of the areas the worker said he had worked at and calculated an average decibel level of 84.887 for the worker's exposure to noise while at work. By letter dated April 23, 2020, the WCB advised the worker that his claim was not acceptable. The WCB stated that based on their calculations, the worker was exposed to 84.887 decibels of noise, which did not meet the minimum average threshold for noise exposure for acceptance of a hearing loss claim by the WCB.
On August 5, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker stated he disagreed with the use of an average for his noise exposure while at work, as he believed that in his position, he was exposed to the maximum levels noted at the different areas he worked at throughout his employment. The worker further stated that he believed there was increased traffic, and therefore increased noise he was subjected to, during the time he was employed.
On September 16, 2020, Review Office upheld the WCB's decision and determined that the worker's claim was not acceptable. Review Office found the worker was not exposed to noxious noise for a minimum of two years from the date he started working for the employer, being March 24, 1980, through to 1984, being the year the use of hearing protection was made mandatory, based on the employer's report of the worker's absences during that time. Review Office acknowledged the worker worked in a noisy environment, but found that the use of hearing protection would have reduced the worker's exposure to below 85 decibels in all areas except one. Review Office further noted there was no information on the worker's file to support the worker had worked for two consecutive years in that area.
Review Office also noted that the worker's hearing loss was worse in the right ear, and that hearing loss from a work environment was typically symmetrical. Review Office found that the file information did not provide an occupational explanation for the asymmetric hearing loss. Review Office therefore concluded that the worker did not sustain a noise-induced hearing loss due to exposure to noise in his Manitoba work environment.
On March 25, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. As the date of injury is identified as April 26, 1990, the applicable legislation is the Act as it existed at that time.
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.
WCB Policy 184.108.40.206, 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.
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 was exposed to noxious noise in the workplace which met the minimum threshold for noise exposure and resulted in his hearing loss, and his claim should be accepted.
The worker's representative noted that the worker began working for the employer in March 1980, before there was a mandatory hearing program in place, at which time the workers were exposed to noise in excess of 85 decibels. The representative submitted that the worker worked approximately two years, until he was laid off in February 1982, and returned to work in 1984, around the time the hearing protection program was being communicated to the workers. The representative submitted that the evidence showed there was no mandatory hearing protection until sometime after February 1982, and the available hearing protection prior to 1982 consisted of cotton batting, which was ineffective. The representative noted that the worker was using hearing protection consistently by 1990, but continued to be exposed to noise levels above 85 decibels, as evidenced by the noise level reports on file.
In response to questions from his representative, the worker indicated that he had worked in two other shops or areas listed in the 1980 sound level survey in addition to the ones he had identified. The worker also indicated that he had worked in one particular area he had originally identified, being a grit blast area, for six to seven years over the course of his employment. The worker described the types of tools he used in his work, including using a sledgehammer to straighten steel, grinders to grind steel, and a blast hose and steel shot to blast rust off vehicles.
The worker's representative noted that the WCB had calculated the average noise levels in various shops the worker had indicated he worked in based on information from the 1980 noise level survey and determined he was exposed to an average of 84.877 decibels on that basis. The representative submitted that the 1980 survey underestimated the level of noise to which the worker was exposed. It was submitted that multiple noise level results showed that every area the worker worked in had noise level readings above 85 decibels. The representative noted, for example, that 90 out of 442 readings or at least 20% of the readings in one of the areas the worker worked in were over 87 decibels. The representative submitted that the worker would have been exposed to peak or higher levels of noise, given the duties he was performing and his proximity to the noise while he was performing his duties.
The worker's representative further noted that information on file from conversations between the WCB and an employer representative in 2007 and 2008 indicated that the employer representative had confirmed that prior to the early 1980s, workers would have been exposed to levels over 85 decibels in most positions with the employer, and that the 1980 noise level tests provided only general noise levels in various shop areas and were not specific to workers' duties.
The worker's representative further indicated that the two additional areas the worker had said he also worked in were not included in the WCB's calculation of the worker's average exposure at 84.877 decibels, but would, if added to that calculation, have resulted in the average noise level being over 85 decibels.
The worker's representative also submitted that the additional reports from 1993, 2000, 2001 and 2016 which were submitted by the employer confirmed that the level of noise exposure was substantially over 85 decibels in the workplace. The representative submitted that the file evidence supports that the worker continued to be exposed to high noxious noise levels beyond 1984, which would not have been countered by the hearing protection provided. The worker's representative noted in particular that in the grit blast area where the worker worked for a number of years, the reports indicated the blasting produced up to 111 decibels of noise, and the worker would have been exposed to noise levels significantly in excess of 85 decibels over an eight hour shift, even with hearing protection.
The employer was represented by its WCB Claims Officer, who also provided copies of several additional noise level survey reports prior to the hearing. The employer's representative made an oral submission at the hearing and responded to questions from the panel.
The employer's representative indicated that they were in agreement with the WCB's decision that the worker's claim is not acceptable.
The employer's representative provided a brief overview of the file, noting the worker had indicated he worked for the employer at two different locations from 1980 to 2016 and that it appeared the worker was using hearing protection consistently by the 1980s or 1990s. The representative noted that the claim was initially denied as the average decibel exposure at the workplace was calculated to be under the mandated 85 decibel threshold. Review Office upheld that decision, primarily based on findings that the use of hearing protection reduced the worker's exposure below the 85 decibel threshold, and his asymmetrical hearing loss was most likely due to firearm usage.
The employer's representative stated that in preparation for the hearing, he had determined there were additional noise level reports which were applicable to the claim, and had therefore submitted these prior to the hearing. The representative stated that these reports appeared to show that hearing protection would have reduced the exposure to noxious noise below 85 decibels.
The employer's representative submitted that the 2015 audiogram should be used as the most accurate level of hearing loss related to the worker's employment as it would appear to be the best indication of the worker's hearing loss prior to his retirement in 2016. The representative also submitted that there does not appear to be any supportive information to explain the asymmetry in the worker's hearing on a work-related basis, and additional hearing loss should therefore not be considered in relation to the worker's claim.
The issue which is before the panel on this appeal is whether or not the claim is acceptable. The claim has been advanced on the basis of long-term exposure to noxious levels of occupational noise resulting in noise-induced hearing loss ("NIHL"). In order for the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained NIHL due to exposure to high levels of noxious noise during the course of his employment, as set out in the Policy. The panel is able to make that finding, for the reasons that follow.
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 our review of the evidence before us, the panel is satisfied that this noise threshold has been met.
The panel accepts the worker's evidence that he wore hearing protection intermittently from 1984, and did not wear hearing protection consistently until in or about 1990. When asked whether he had any comment on whether hearing protection was mandatory or enforced after 1984, the employer's representative indicated that he could not say in terms of specific departments and how such protection was enforced at that time and did not know of anyone he could ask to comment on that.
The panel accepts the worker's evidence at the hearing that he worked in two further areas during his employment which were not included in the original list he provided to the WCB or the WCB's calculation of his average noise exposure at slightly less than 85, or 84.887 decibels. The panel notes that including those areas in that calculation would result in an average exposure level in excess of 85 decibels. Given the worker's description of the duties he performed, and his intermittent use of hearing protection up to 1990, as well as indications that a significant percentage of survey results showed there were higher levels of exposure in the areas he worked in, the panel is satisfied, on a balance of probabilities, that there is sufficient evidence to show that the worker sustained NIHL as a result of his employment with the employer between 1980 and 1990.
In particular, the panel accepts and places significant weight on the worker's evidence that he worked in the grit blast area for six to seven years during his employment with the employer. In response to questioning from the panel as to when he worked in that area, the worker said it varied depending on his bidding on the job, that "it would vary from three years or maybe a year six months and then you get bumped out…" Asked what the longest period he was in that area was, the worked stated "I'm guessing, probably about two years." He further indicated that he could not remember which dates that might have happened, adding it was so long ago.
Based on our review of the evidence before us, including the 1980 survey which showed a net average sound level reading of 105.00 decibels in the grit blast area and the 2001 report relating to the grit blast operation which was provided by the employer, the panel finds, on a balance of probabilities, that even with hearing protection, the worker would have been exposed to average levels of noxious noise in excess of the 85 decibel threshold on a daily basis in the grit blast area alone.
The panel notes that while the worker was unable to say for certain that he worked in the grit blast area for a full two-year period at any one time or two consecutive years, we are satisfied that his exposure to such high levels of noxious noise while working in that area for a total of at least six years during the course of his employment satisfies the criteria for NIHL under the Policy.
The panel accepts and places weight on the WCB ENT consultant's comments that the 1990 audiogram shows NIHL in both ears and that hearing aids were advised for both ears. The panel notes that the evidence indicates and the consultant states that the worker's hearing loss is asymmetrical, in that it is worse in the worker's right ear than his left. The panel recognizes that it is generally unusual in NIHL cases for there to be a difference or significant difference in hearing loss between the two ears. In the worker's case, the ENT consultant was able to account for that asymmetry or difference, noting that:
The audiogram shows asymmetric hearing loss with the right ear being worse. This can be attributed to the worker's history of left-handed firearm use, unless there is an occupational explanation.
The panel notes that after removing the differential hearing loss in the right ear, there is still a bilateral hearing loss which can be attributed to his exposure to noxious noise in the workplace.
The panel further notes that the results of the worker's hearing tests over the years indicate he continued to experience hearing loss. Information on file shows, however, that the WCB advised their ENT consultant that there was no noise exposure after 1984 based on mandatory hearing protection. The panel notes that the WCB's advice in this regard is not consistent with our understanding and finding that the worker did not wear hearing protection consistently until 1990 and that even with hearing protection, the worker would have been exposed to noxious noise in the grit blast area alone sufficient to meet the WCB's threshold criteria for NIHL.
In conclusion, the panel finds, on a balance of probabilities, that the worker sustained NIHL due to exposure to high levels of noxious noise during the course of his employment, as set out in the Policy. The panel therefore finds that the worker's claim is acceptable.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of July, 2022