Decision #112/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on September 21, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Hearing Loss Report with the WCB on March 4, 2013, reporting a gradual hearing loss which he related to his job duties with the employer. The worker reported he first noticed a hearing problem 25 to 30 years ago and that no hearing protection was available while he was working for the employer. The worker also submitted a Work History Summary, noting he worked for the employer from 1965 to 1974 and was exposed to loud noise for 12 to 13 hours per day with no hearing protection. Also included with the Report was a February 28, 2013 audiogram which indicated the worker had "…a mild to moderately-severe cookie bite sensorineural hearing loss from low to high frequencies on both ears" and noted that hearing aids were recommended for both ears.
On March 15, 2013, a WCB adjudicator spoke with the worker to discuss his claim. The worker confirmed the information on his Hearing Loss Report and advised that prior to working for the employer, he had been self-employed, but was not relating his hearing loss to this work as he did not find the work loud. The adjudicator advised the worker of the WCB's criteria for acceptance of hearing loss claims and that further investigation was required.
The WCB spoke with a former co-worker on March 19, 2013. The co-worker confirmed he worked with the worker from 1965 to at least 1974, when the co-worker left the employer. The WCB spoke with another co-worker on May 8, 2013, who confirmed the worker's job duties and that no hearing protection was worn. Additional employment information was received and reviewed by the WCB.
The worker's file was reviewed by the WCB's Ear, Nose and Throat (ENT) specialist on July 18, 2013. The specialist opined that based on the configuration of the audiogram and the report from the audiologist, the worker had a "cookie-bite" hearing loss, which was not typical or diagnostic of noise induced hearing loss, and that this type of hearing loss is seen in hereditary or genetic hearing loss. On July 19, 2013, the WCB advised the worker that they could not accept his claim as they had been unable to establish his hearing loss was a result of employment-related noise exposure.
The worker's current employer contacted the WCB on April 4, 2019 to discuss the worker's claim, noting that the worker was in the office with them. The employer advised that the worker had his hearing tested by their company every year and was still exposed to noise. The employer further advised that they would provide the worker's hearing test and employment history to the WCB. On the same date, the WCB received a copy of an October 23, 2017 audiogram for the worker. The audiogram indicated the worker had a notch configuration, with moderate severe sensorineural hearing loss in his right ear, and gradually sloping, moderate severe sensorineural hearing loss in his left ear, and noted that binaural hearing aids were recommended.
On April 8, 2019, the WCB requested copies of hearing testing for the worker from a further testing company, who subsequently advised that they had no records for the worker.
On April 10, 2019, the WCB's ENT specialist reviewed the worker's file, including the October 23, 2017 audiogram, and opined that the audiogram showed a cookie-bite configuration which was not typical or diagnostic of noise induced hearing loss. On May 9, 2019, the WCB advised the worker that there would be no change to their decision that the worker's claim was not acceptable.
On August 7, 2019, the worker requested that Review Office reconsider the WCB's decision. The worker indicated he believed his hearing loss was a result of his job duties and loud work environments. The worker further indicated he did not believe his hearing loss was genetic or heredity, noting that none of his family members had difficulties with their hearing.
On October 2, 2019, Review Office upheld the WCB's decision and determined the worker's claim was not acceptable. Review Office placed significant weight on the opinions of the WCB's ENT specialist that the worker's hearing loss was not indicative of noise induced hearing loss. Review Office acknowledged the worker was likely exposed to high noise levels at work, but found the medical evidence did not support his hearing loss was related to noxious noise exposure at work.
On May 4, 2022, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations, and policies of the WCB's Board of Directors. As the date of injury is identified as February 28, 2013, 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 220.127.116.11.01, Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise that causes hearing loss. The Policy states, in part, that:
Not all hearing loss is caused by exposure to noise at work. The WCB will be satisfied that hearing loss occurred at work when a worker is 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 will be reduced by half.
The worker was self-represented. The worker attended the hearing and provided a further letter from his treating audiologist dated September 14, 2022. The worker made an oral presentation and answered questions from the panel.
The worker's position was that his hearing loss was a result of the loud work environments he had been exposed to, and his claim should be accepted.
The worker stated that he started working in construction when he was very young, around 18 years old. He noted there was no hearing protection at the time. He worked on or near heavy equipment, loaders and rock crushers, which were very loud. The worker stated that he also drove gravel trucks, including with open windows, as the trucks had no air conditioning, and that this was also very noisy. The worker said he is still driving trucks today.
The worker said his audiologist had told him that a person is either born with hearing loss or it is noise-related. He indicated he did not believe his hearing loss was hereditary or genetic. He noted he comes from a large family and no family members, going back at least as far as his grandparents, have had hearing difficulties.
The worker said he believes his hearing loss is work-related as he noticed he could not hear as well when he was around 35 or 40 years old, and that his hearing has been getting worse since then, as he gets older. He noted that a lot of his friends are truck drivers who worked in construction and have been covered for hearing loss, and said he cannot understand why his claim has not also been accepted.
The employer did not participate in the appeal.
The issue which is before the panel is whether or not the claim is acceptable. The claim has been advanced on the basis of long-term exposure to occupational noise. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a noise induced hearing loss during the course of his employment due to exposure to high levels of noxious noise as set out in the Policy. The panel is unable to make that finding, for the reasons that follow.
Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel accepts that the worker has a hearing loss, but is unable to connect the worker's hearing loss to his employment.
As indicated above, the panel is bound by the Policy. The Policy notes that not all hearing loss is caused by or the result of exposure to noise at work. The Policy sets out the threshold criteria which are to be met in order to establish that a noise induced hearing loss occurred at work. Not all workers exposed to workplace noise levels above the threshold, however, will experience hearing loss as a result of that exposure, and claims must be evaluated on an individual basis.
The panel accepts that the worker worked in a loud environment. In response to questions from the panel, the worker confirmed that he worked for the employer from 1965 to 1974, where he was working with rock crushers, crushing stones, which he said was really noisy. After that he was driving gravel trucks. The worker indicated that driving trucks was also loud, especially when the windows were open, but acknowledged that it was not as loud as his previous work crushing rocks, and that the really loud work was between 1965 and 1974.
The panel finds that the worker was a credible witness, but notes there is an absence of testing results or evidence which would substantiate the levels of noise the worker would have been exposed to in the workplace, particularly with respect to his job duties and the work environment while working for the employer between 1965 and 1974, and whether the criteria under the Policy are met.
Further, or in any event, the panel is not satisfied, based on the available evidence, that the worker's hearing loss is consistent with noise induced hearing loss or attributable to his work environment or work duties.
In this regard, the panel notes that in the February 28, 2013 report from the treating audiologist, the audiologist specifically commented that the testing "revealed a mild to moderately-severe cookie bite sensorineural hearing loss from low to high frequencies on both ears."
That report was reviewed by the WCB's ENT consultant, who opined on July 18, 2013 that "Based on the configuration of the [February 28, 2013] audiogram and the report from the audiologist, the worker has a Cookie-Bite hearing loss. This is not typical or diagnostic of NIHL (noise induced hearing loss). This type of hearing loss is seen in hereditary or genetic hearing loss."
An October 23, 2017 report from a second treating audiologist was also received reviewed by the WCB's ENT consultant, who again opined that the audiogram "…shows a cookie-bite configuration with the maximum loss being at 1000 Hz. This configuration is not typical or diagnostic of NIHL."
The panel accepts and places weight on the opinion of the WCB's ENT consultant which is consistent with our review and understanding of the audiograms and information on file.
In this regard, it is the panel's understanding that test results which indicate noise induced hearing loss have a unique "reverse checkmark" type of pattern, with a typical notch around the 4000 Hz level that is characteristic of that kind of hearing loss. The panel is of the view that such a pattern does not appear in the worker's February 28, 2013 and October 23, 2017 audiograms. Rather, the test results show a "cookie-bite" pattern, which represents a very different kind of hearing loss that the panel is unable to relate to the worker's employment. That is not to say that the worker was not suffering from hearing loss, but that the hearing loss was not the result of prolonged exposure to noxious noise in the workplace or noise-induced hearing loss.
The panel also notes that the worker stated he first noticed a hearing loss or problem when he was around 35 or 40, or at least six years after he stopped working for the employer. In response to questions from the panel, the worker said that this was a rough guess, and he might have been closer to 50 when he noticed a problem, but that as he got older he noticed his hearing was getting worse and it had continued doing so. The significant length of time between working for the employer and the onset of the hearing loss symptoms is not consistent with the panel's understanding of noise induced hearing loss, in that symptoms would occur much more proximate to when the worker was exposed to noxious levels of occupational noise.
The panel further notes that the first audiogram on file is dated February 28, 2013, or almost 40 years after the worker stopped working for the employer. The worker indicated at the hearing that he was not aware of any hearing tests having been done before 2013. While the worker indicated that his audiologist had explained that his hearing loss was likely noise-related when he was younger, and the pattern changed as he got older, the panel is unable to find that this is supported by the available evidence, given the absence of any earlier test results.
In conclusion, the panel finds, on a balance of probabilities, that the worker did not suffer a noise induced hearing loss during the course of his employment due to exposure to high levels of noxious noise as set out in the Policy. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of November, 2022