Decision #111/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim for noise induced hearing loss (NIHL) is not acceptable. A hearing was held on October 12, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker provided the WCB with a Worker Hearing Loss Report on July 15, 2019, reporting gradual hearing loss they related to their employment. Also included with the Report, was the worker’s Worker History Summary where the worker listed their employers and noted the positions and job duties from 1958 to 2001, when the worker retired. For all of the positions listed, the worker noted being exposed to noise and not wearing hearing protection. The worker submitted a June 10, 2019 audiogram with their hearing loss report which indicated a moderately-severe to severe bilateral hearing loss.
On July 16, 2019, the WCB contacted the worker to discuss their claim. The worker confirmed their employment and job duties previously provided to the WCB and further confirmed they only had hearing testing done recently, a copy of which was provided with their hearing loss report. The worker further advised they used some power hand tools but otherwise, had little to no noise exposure outside of work.
The WCB advised the minimum threshold for accepting hearing loss claims was noise levels at or above 85 dBA for a minimum of 8 hours a day for two years and noted further investigation was needed.
The WCB requested hearing loss reports from the worker’s previous employers on July 16, 2019. On July 18, 2019, one of the worker’s former employers advised they were requesting the worker’s records from storage. On August 12, 2019, one former employer advised they had no records for the worker and another former employer advised they did not have any monitoring records prior to 1978. On August 22, 2019, the latest employer advised they could not find any records for the worker.
In an August 23, 2019 note to the worker’s file, the worker’s WCB adjudicator noted confirmation of the worker’s employment with the employer from 1967 to 1996 and further, noise level testing on file with the WCB found noise levels for similar occupations ranged from 74 to 96 dBAs, based on testing from 1998. Noise level testing from the employer done in 2013, indicated noise levels of 72 dBA.
The WCB adjudicator confirmed given the information listed, the worker would have been exposed to noxious noise that met the WCB’s criteria for NIHL, subject to confirmation by the WCB’s Ear, Nose and Throat (ENT) specialist.
The worker’s file was reviewed by the WCB ENT specialist on August 29, 2019 who opined the audiogram on file was consistent with presbycusis, or age-related hearing loss, and not noise induced hearing loss. The specialist did note the worker had undergone chemotherapy in 2017 and requested the WCB adjudicator obtain the name of the agents used as some could cause hearing loss. The names were obtained by the adjudicator on August 30, 2019 and provided to the WCB ENT specialist, who opined on the same date those chemotherapeutic agents could cause severe sensorineural hearing loss.
On September 6, 2019, the WCB advised the worker their claim was not acceptable. The WCB advised that while the information on file supported the worker had been exposed to noxious noise, the medical evidence did not support the worker’s hearing loss was related to the noise exposure but was a result of regular aging. Further, the WCB advised of the WCB ENT specialist’s opinion the chemotherapy agents used for the worker’s treatment were known to cause severe hearing loss.
The worker requested reconsideration of the WCB’s decision to Review Office on May 19, 2022, noting the chemotherapy treatment they received was for only five days and was not strong, with
no side effects. Further, the worker noted all of their previous employers did not offer hearing protection, despite noisy environments. On June 2, 2022, Review Office determined the worker’s claim was not acceptable. Review Office accepted and relied on the opinion of the WCB ENT specialist and found it could not be established the worker developed NIHL as a result of exposure to noxious noise at work.
The worker filed an appeal with the Appeal Commission on July 10, 2022 and a hearing was arranged for October 12, 2022.
Applicable Legislation and Policy
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. As the date of injury is identified as June 10, 2019, the provisions of the Act that were in effect as of that date 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 220.127.116.11, 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.”
The worker appeared in the hearing on their own behalf via teleconference 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 is appealing the WCB decision that their claim is not acceptable as it could not be established they developed NIHL as a result of exposure to noxious noise at work.
The worker provided a history of their work environments from 1958 through to retirement in 2001. These roles were a variety of driving positions that included trucks and buses for a variety of employers without the use of hearing protection. The worker said they considered their work environments to be always noisy.
In addition, the worker disputes that their hearing loss resulted from chemotherapy treatments in 2017.
The employer is a finalled firm and as such 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, the panel must find that the evidence supports the worker has sustained 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. The panel was not able to make such a finding for the reasons that follow.
The panel notes the June 10, 2019 audiogram is the only audiogram on file. The WCB medical advisor who reviewed this audiogram stated "The configuration of this audiogram is consistant (sic) with presbycusis and not NIHL. In the absence of earlier audiograms, I cannot conclude that noise exposure contributed to the worker's hearing loss." The panel accepts and relies upon this opinion. Based on the evidence available to the panel, we find, on a balance of probabilities, that we are unable to attribute the worker's hearing loss to exposure to noxious noise in the workplace.
There was also evidence and discussion at the hearing whether the chemotherapy treatment the worker received caused the sensorineural hearing loss. The worker says he did not report such hearing loss and disputed that the treatment caused his hearing loss. Given the panel's finding that we are unable to attribute the worker's hearing loss to an exposure to noxious noise in the workplace, it is unnecessary for the panel to consider the impact, if any, the chemotherapy treatment had on the worker's hearing loss.
As the panel has determined that the hearing loss shown on the June 10, 2019 audiogram is not due to exposure to noxious noise in the workplace, the claim is not acceptable, and the appeal is therefore denied.
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of November, 2022