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 videoconference hearing was held on February 10, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On November 4, 2018, the worker filed a Worker Hearing Loss Report with the WCB reporting gradual hearing loss and ringing in their ears which they attributed to their work experience in general, noting they followed the employer’s policy for hearing protection use and used the hearing protection provided by the employer when in high noise areas. On November 14, 2018, the WCB received audiograms from 2017 and 2018.

When the WCB spoke with the worker on November 15, 2018 regarding the claim, the worker confirmed the information on the hearing loss report and advised they had noticed the gradual hearing loss and tinnitus approximately two years earlier. The worker confirmed the details of their employment history and advised that other than shooting a gun twice while wearing hearing protection over thirty years prior, they had no other non-occupational exposure to noise.

An audiogram dated August 17, 2017, received by the WCB on November 21, 2018, indicated mild sloping to severe sensorineural hearing loss in the worker’s right ear and mild sloping to moderately-severe sensorineural hearing loss in the left ear. The audiologist recommended bilateral hearing aids for the worker.

On December 14, 2018, the employer provided an Employer Hearing Loss Report noting the worker had been employed since November 5, 2007 and provided with hearing protection since that time. The WCB advised the worker on December 18, 2018 their claim was not acceptable, noting that although the worker may have been exposed to noxious noise, as they had been provided with and worn hearing protection during the length of their employment, their exposure to noxious noise would have been below the WCB’s threshold for noise induced hearing loss.

On February 7, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker noted that the hearing protection provided by the employer was “…not worn 100% of the time or worn properly whenever worn.” Review Office determined on April 4, 2019 that the worker’s claim was not acceptable.

The worker filed an appeal with the Appeal Commission on July 22, 2020. A videoconference hearing was arranged and held on February 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 October 4, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 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,

(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 "Hearing Loss 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 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 they sustained their bilateral hearing loss as a result of exposure to excessive noise in the workplace and therefore, the claim should be acceptable.

The worker testified to working for the employer from 2007 – 2009 and then returning to the employer in their present management position in 2011, continuing to the present. The worker indicated that a hearing test was undertaken on first hiring and at that time they had no hearing issues; however, over time, since 2011, the worker has noticed a gradual deterioration in their hearing. Other people would comment on the volume of the television when the worker was watching, for example, and that the worker often asked people to repeat themselves, in the workplace context.

The worker recalled having audiometric testing in the workplace on multiple occasions, usually annually. The worker recalled being told to go for further assessment and examination, which they did.

The worker stated that when the WCB case manager asked about their use of hearing protection in the workplace, the worker answered that they always used the hearing protection, explaining that they this was how they thought they should answer, as a manager who needed to ensure that their employees follow the policies and procedures of the workplace and also indicating concern that they might have been subject to discipline if they disclosed that their use of hearing protection was not perfect. The worker stated that in fact they did not always use hearing protection in the workplace and would take out the ear plugs to talk with employees. Further, the worker described using the plugs imperfectly so that they did not provide full protection and also described the plugs as “decoration”.

On questioning by members of the appeal panel, the worker clarified that the workplace hearing tests did not always occur on an annual basis but noted that when they were sent for testing, there was deterioration noted in the higher frequency ranges. The worker further explained that in their role as a manager, they supervise employees on the manufacturing floor most of the time and that their office is located in a cubicle on the floor next to the manufacturing space. With respect to their use of hearing protection, the worker further explained that it is not practical to wear protection 100% of the time as the protection must be removed for talking with employees on the floor and for conducting standup meetings in the work area. The worker described removing just one plug to have a conversation.

The worker noted that approximately 80% of their day is spent on the floor and the balance either in their cubicle, in standup meetings or on breaks. The worker noted that noise levels vary in the manufacturing areas. The area where the worker worked from 2007-2009 was quieter, with levels averaging around 87 dBA as indicated in the WCB file but the other areas of the workplace where the worker spends most of their time are louder with multiple machines running simultaneously such that it is necessary to yell into the ears of others to communicate. This noisier area is where the worker spends approximately half their time and this is where the noise levels average around 105 dBA, according to the WCB file information.

The worker also provided information to the panel on their noise exposure from 2009-2011, noting noise exposure in that employment was not regular and that they did not note any loss of hearing at that time. The worker also confirmed that they did not have any significant noise exposure in prior workplaces.

The worker indicated, in response to questions from the panel members, that they first noted some hearing loss around 2015-2016. The worker recalled going for another hearing test, the results of which are not before the panel, but could not remember when that was or what the results were.

In sum, the worker’s position is that as a result of their exposure to noise in the workplace, which was not fully tempered by the use of hearing protection, the worker sustained hearing loss and as such, the claim should be acceptable.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue on appeal is whether the claim is acceptable. For the worker’s appeal to succeed and their claim to be accepted, the panel must find that the evidence supports that the worker has sustained an injury, in this case noise induced hearing loss, and that the worker was exposed to sufficient noxious noise arising out of and in the course of their employment to have caused such hearing loss. As outlined in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied.

The panel reviewed the hearing and audiological testing results provided in support of the worker’s claim. The WCB claim file contains records of two hearing tests arranged by the employer. The results from June 8, 2017 and June 7, 2018 indicate a worsening in the worker’s right ear and improvement in the worker’s left ear over that period. A test conducted by a certified audiologist dated August 16, 2017 indicates findings of “Mild sloping to severe [high frequency sensorineural hearing loss] for the right ear. Mild sloping to moderately severe [high frequency sensorineural hearing loss] for the left ear” and recommends a trial of binaural hearing aids. The panel obtained an opinion from the WCB medical advisor as to whether the audiological findings on file indicate noise induced hearing loss. The WCB audiology consultant, in an opinion dated August 23, 2022 commented that the results are in keeping with “a component of noise-induced hearing loss combined with presbycusis i.e. age-related loss in both ears” and stated that the findings are “in keeping with probable noise-induced hearing loss in both ears if sufficient noise exposure has occurred.”

The panel also considered whether there was evidence the worker was exposed to sufficient noise to have possibly caused noise induced hearing loss. The threshold for such claims is set out in the WCB’s Hearing Loss Policy as exposure 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 panel noted the worker testified that they spent approximately half of their workday in the noisier area of the workplace, with approximately 80% of their day spent on the floor, and the remaining 20% of their time in their cubicle office. The panel considered the WCB claim note dated February 8, 2019, that indicates average noise level readings 87 dBA in one area of the workplace and that another area of the workplace had average noise level readings of up to 105 dBA. The panel noted as well that the workplace audiological testing results from June 7, 2018 indicate the worker’s noise exposure levels at 80-85 dB and the June 28, 2022 letter from the employer to the Appeal Commission indicated that there were not other hearing tests on record as “…further testing was only done in areas that had greater than 85 dBA.”

With respect to the tempering effects of the use of hearing protection, the Employer Hearing Loss Report indicates that the worker was issued protective hearing devices, wore the hearing device regularly and was properly instructed in its use. The panel noted that the Worker Hearing Loss Report of November 4, 2018 indicates that the worker used both plugs and muffs as hearing protection “whenever in high noise area per policy”. Further, on December 17, 2018, the worker confirmed to the WCB case manager that whenever they are on the shop floor, they consistently wear hearing protection, even during stand-up meetings on the floor, but do not wear it in their office. But, on December 18, 2018, after being advised by the case manager that the claim was not accepted by the WCB due to the effect of the worker’s consistent use of hearing protection, the worker stated that prior to 5 months earlier, they only wore hearing protection “maybe 50% of the time.”

In the hearing, the worker testified that although they initially claimed to the WCB that they always wore appropriate hearing protection, this was not the case. The worker also indicated to the panel that they did not wear hearing protection during the time spent in their cubicle and would remove at least one ear plug when speaking with employees “on the spot” or in stand-up meetings. On further questioning, the worker described their use of hearing protection as follows:

…there was no need to even move the plugs out because the plugs were never in to begin with, they were just sitting there.

Q So you weren’t using your, and I’m just trying to understand, because it sounds -- I understood you to say, yes, I wore the hearing, the hearing plugs, but I removed them when I wanted to have a conversation with somebody on the shop floor.

A So the plugs are sitting there as more like a, I will say, as a decoration piece. Plugs --

Q Right.

A -- most time they are sitting there as a decoration piece. But even as a decoration piece, whatever little protection they are providing, you still can’t, like you know, first of all, it’s not enough, you’re still hearing all the possible things.

The panel did not find the worker’s testimony in respect of their use of hearing protection to be, on the whole, reliable or credible. While the worker explained in their submissions that they initially did not provide the true picture of their hearing protection usage to the WCB because of a concern that they might face disciplinary action in the workplace as a result, they also noted that after a subsequent conversation with the employer’s workplace disability management specialist, they understood that it was better to be totally honest about this. Nonetheless, during the hearing, the worker provided different and variable answers to the questions posed to them about their use of hearing protection, suggesting that they removed the plugs only for conversations or meetings, that they wore plugs but imperfectly, and that they considered the hearing protection to be decorative and did not use it at all.

The panel is satisfied by and accepts the information provided by the employer that there is a hearing protection program in place and that the worker has been appropriately trained in the use of such protection. Given the discrepancies in the evidence of the worker as to their actual use of hearing protection in the workplace, particularly following the denial of their claim, the panel prefers and relies upon the evidence provided most proximal to the date of the worker’s claim, which outlined that the worker generally used hearing protection while on the floor, but removed the plugs from time to time in order to communicate with the staff they supervise.

Based upon the file evidence indicating that the average noise level exposures to be in the range of 85 – 105 dBA and the worker’s testimony that they are moving about the work area through the course of their shift, from office cubicle to various areas on the floor with different noise levels, the panel is not satisfied that the evidence establishes the worker’s exposure to noise levels is in excess of the threshold set out in the Hearing Loss Policy, particularly when the tempering effect of even imperfect use of the provided hearing protection devices is taken into account.

On the basis of the evidence before us, and on the standard of a balance of probabilities, the panel is unable to determine 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.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of October, 2022