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 hearing was held on November 10, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

A WCB claim was initiated on November 28, 2014 regarding the worker’s hearing loss in their right ear as the result of a workplace accident that occurred in 2001, with an assigned accident date of January 1, 2001. The WCB documented a discussion with the worker on November 28, 2014 in which the worker related an incident that occurred in 2001 when they were struck right below their right ear lobe by an air hose, noting it would have hit them "…with the force of 150 lbs. of pressure." The WCB noted that in a previous claim, an accident involving the worker’s left ear was accepted; however, it was determined in that claim that the worker did not require a right hearing aid. The worker advised they could not hear very well and attributed their right ear difficulties to the 2001 incident. The WCB advised the worker that further investigation was required and noted the employer was no longer in operation.

On January 9, 2015, the WCB requested medical information from the worker's treating Ear, Nose and Throat (ENT) specialist. On January 13, 2015, the treating ENT specialist provided chart notes from 1997 to 2007, as well as copies of referral letters from the worker's treating family physicians to the ENT specialist. In a letter dated April 16, 1997 the ENT specialist noted the worker had issues with their ears since childhood and noted the worker's:

…right tympanic membrane has some discharge covering it and there is also a granuloma. This suggests that there may be an underlying perforation. Tuning forks showed a conductive hearing loss on the right side. The audiogram that was submitted showed a bilateral mild neurosensory hearing loss but there is also a conductive hearing loss involving the right ear.

The October 17, 2001 report from a second ENT specialist to the worker's family physician indicated the perforation noted in 1997 had "apparently healed" and the worker's complaints at the time involved discharge from their right ear over the previous month. The ENT specialist noted the worker had "…a lot of pus” in the right external canal, which was removed, and a granuloma was found "…along the floor of the canal just adjacent to the tympanic membrane." Moderate conductive hearing loss was noted in the worker's right ear and the physician prescribed antibiotics to deal with an infection.

In a June 27, 2011 report, the treating ENT specialist noted the worker had a perforation involving their right ear when they saw the worker in 1997, and that the worker advised the specialist those difficulties were related to an injury at work when they were hit on their right ear. The ENT specialist also noted the perforation had healed but the worker had a recurrence of the perforation and a resulting infection but had not been seen by the specialist since 2007.

A WCB ENT specialist reviewed the worker's file on January 15, 2015 and provided an opinion that the medical reporting indicated the worker was hit in the right ear in 1996, and in 1997 was treated for an infection in their right ear, with a perforation of the tympanic membrane. The WCB ENT specialist opined there was no indication in the medical reports of a right ear injury to the worker in 2001.

The WCB advised the worker on March 5, 2015 that the claim was not acceptable as it could not establish that a workplace injury occurred in 2001 and as such, an accident arising out of or in the course of their employment was not established. On April 7, 2015, the worker requested reconsideration of the WCB's decision to Review Office, noting in their request that the WCB did not have the dates correct in their decision letter and requested they be entitled to a hearing aid for their right ear as they were entitled to one for a previous WCB claim for their left ear.

Review Office determined on May 14, 2015 that the worker's claim was not acceptable. Review Office found the worker delayed until 2014 to report an incident that occurred in 2001 involving their right ear and noted this delay was significant. Review Office further found the medical information provided by the worker's treating healthcare providers referred to an incident that occurred in 1996, with treatment occurring in 1997, and resulted in a perforation to the worker's tympanic membrane in their right ear. Review Office acknowledged that the 1996 incident may be the incident the worker recalled in relation to this claim. Review Office also noted the worker was referred to an ENT specialist in October 2001 due to discharge in their right ear since September 2001 but did not note a workplace accident to account for the worker's right ear difficulties. Review Office therefore was not able to confirm that the worker sustained an injury as the result of a workplace accident in 2001 or 1996 and as such, their claim was not acceptable.

The worker filed an appeal with the Appeal Commission on August 10, 2022 and a hearing was arranged.

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.

Worker’s Position

The worker appeared in the hearing on their own behalf, accompanied by their spouse. The worker made an oral submission to the panel in support of their appeal and provided testimony through answers to questions posed by members of the appeal panel. The worker’s spouse also provided testimony in support of the worker’s appeal and in response to questions from members of the appeal panel.

The worker’s position is that their right ear hearing loss is the result of an incident at work in 1996 not 2001, which they reported to their employer at that time and for which they sought medical attention from their physician. As such, the worker believes that the claim should be accepted by the WCB as the worker sustained an injury arising out of and in the course of their employment.

The worker described the incident to the panel as occurring when they were struck below the right ear by an air hose at 150 psi of pressure. The worker was not able to recall exactly when this occurred but was certain it happened in 1996.

The worker indicated to the panel that as a result of this incident, their right ear became infected, repeatedly, which resulted in loss of hearing in that ear. Therefore, the worker submitted that the claim should be acceptable.

Analysis

The worker is appealing the WCB’s decision that their claim for right ear hearing loss is not acceptable. For the appeal to succeed, the panel would have to determine that the worker’s right ear hearing loss is the result of an injury sustained in an accident arising out of and in the course of the worker’s employment. As outlined in the reasons that follow, the panel was not able to make such a determination and therefore the worker’s appeal is denied.

The worker claims that they sustained an injury in 1996 resulting in trauma to the side of the worker’s head, just below their right ear. At the time, the worker did not seek medical attention for the injury but stated that they did report it to their employer; however, there is no evidence that a claim was filed at that time by either the worker or the employer.

The panel reviewed the worker’s testimony and file evidence with respect to this event, including a file document that appears to be a kind of referral form, dated February 21, 1997 which indicated that the worker “Was struck on right ear by air line hose chuck. (150 lbs pressure) 3rd wk in December. Works for [the employer].” This document further noted hearing loss was suspected in the worker’s right ear. This description is consistent with the worker’s testimony before this hearing panel as well as to a previous Appeal Commission panel.

The medical reports on file indicate that the treating family physician referred the worker to an ear, nose and throat (“ENT”) specialist on March 10, 1997 with “right sided hearing loss” and some discharge from the ear. At that point the physician indicated that the worker’s hearing had been assessed but the report was not received. The physician did not indicate that this was related to any workplace or other traumatic injury. The family physician’s chart notes indicated that on April 14, 1997, the worker sought medical attention in respect of an infection in their right ear. The physician recorded “Rt ear hit at work – December ‘96” and noted the worker’s report of pus and foul smell and that the worker had a history of “otorrhea” since December and “trouble as child.” The physician queried a right ear drum perforation and noted conductive hearing loss. The chart notes also indicated mixed hearing loss in the worker’s right ear.

On April 16, 1997, the worker was assessed by the ENT specialist who noted that the worker stated they were “troubled with [their] ears as a child but had been relatively asymptomatic up until the time of [their] accident.” The specialist went on to report:

The right tympanic membrane has some discharge covering it and there is also a granuloma. This suggests that there may be an underlying perforation. Tuning forks showed a conductive hearing loss on the right side. The audiogram that was submitted showed a bilateral mild neurosensory hearing loss but there is also a conductive hearing loss involving the right ear. [The worker] appears to have chronic otitis media and a conductive hearing loss on the right ear. This may have been caused by a perforation from [the] work related accident.

By April 28, 1997, the worker’s treating family physician noted the worker’s ear was improved. A further chart note provided by the ENT specialist dated May 26, 1997 indicates the worker’s tympanic membrane is healed and discharge resolved. Audiogram test findings are recorded that indicate an improvement in the worker’s right ear testing results since the previous testing, also noted on the same page, but undated.

Based upon the worker’s testimony and the reporting to the treating physicians in 1997, the panel is satisfied that the incident the worker described as taking place in 1996 more likely than not did occur as the worker described. We note the medical reporting suggests that in early 1997, the worker indicated they were struck by an air hose on the right ear at some point in the previous December. We also note that the initial ENT specialist, in April 1997, indicated that the worker’s symptoms at that time “…may have been caused by a perforation from [the] work related accident.”

However, the panel also noted that the worker’s symptoms were reported to be resolved by April 28, 1997, as confirmed by the treating ENT specialist in a further report dated June 27, 2011 in which the physician noted “After proper medical treatment, the perforation did heal….” The panel noted there is no evidence before the panel of any other medical or audiological reports until October 12, 2001 when the worker again sought care from an ENT specialist whose findings are set out in a report to the treating family physician dated October 17, 2001. In that report, the ENT specialist summarized the worker’s 1997 issues noting that the worker’s “discharge subsided and [the] perforation apparently healed.”

In October 2001, the worker reported to the ENT specialist that they had discharge from the right ear “since about September 15 or 20, 2001.” The specialist noted their examination findings of “a lot of pus in [their] right external canal…and there was a granuloma along the floor of the canal just adjacent to the tympanic membrane. Audiometric testing showed…a moderate conductive hearing loss on the right.” The specialist concluded that the worker may need surgery if the “perforation does not heal.” The subsequent chart notes provided by the ENT specialist indicate improvement by October 19, 2001, but the right granuloma was still present on follow up in November and December 2001.

The ENT specialist’s June 2011 report described a “recurrence of infection and perforation involving this ear”, which is supported by the medical reporting which indicates the worker sought further treatment for similar symptoms in fall 2001, winter 2004-2005 and fall 2007. The panel also noted the findings of a 2010 CT scan of the temporal bones indicated that the worker’s “right middle ear and mastoid system is normal. The right inner structures are normal.” Further, the panel noted a February 27, 2012 report from another ENT specialist to the WCB that indicates the worker’s “right tympanic membrane shows a minor degree of scarring” which is consistent with the previous reporting from at least 2007.

In reviewing the audiological reporting on file, the panel noted findings of mixed hearing loss in the worker’s right ear. In 1997, the audiological findings indicated improvement in the worker’s right hearing when the infection was cleared. A 2007 report suggests that the conductive hearing loss component of the worker’s right hearing loss “appears related to the scarring and loss of fiberous layer” with “unknown primary cause of sensorineural component.” Later reports suggest the worker’s right ear hearing continued to deteriorate. In responding to the suggestion that the worker’s right hearing loss was noise related, on May 17, 2012, the WCB ENT specialist noted the worker’s “Long history of chronic ear infection with recurrent bilateral tympanic membrane perforations and its impact on the hearing.” The WCB ENT specialist further commented that “Chronic and recurrent ear infection, as documented in the medical history of the worker, can cause both conductive and sensorineural hearing loss (mixed hearing loss). The sensorineural component of the hearing loss can take any shape and can mimic NIHL”

The worker’s position is that their chronic otitis media and conductive hearing loss in the right ear may have been caused by a perforation from a December 1996 accident, and they rely on the April 16, 1997 opinion of the ENT specialist who stated that “This may have been caused by a perforation from [the] work related accident.” The panel finds this statement by the ENT specialist in 1997 to be speculative and it does not consider the worker’s previous and subsequent history of recurrent ear infections. The possibility of a link between the worker’s later right hearing loss and the December 1996 injury is weakened by the worker’s subsequent and chronic development of infections which the worker also attributed to the later circumstances of their work where they would get drips of water and other liquids in their ears while working beneath wet, dripping vehicles. A possible causal link is further weakened by evidence of the worker’s prior history of such infections in childhood. The panel noted there is no suggestion in the evidence that these prior or subsequent infections were the result of any similar trauma or injury. While there is evidence that the worker has right-sided mixed hearing loss and has a history of right ear infections and granuloma, we are not satisfied that on the basis of the evidence this is the result of the incident at work in December 1996.

The panel finds, based on the totality of the evidence before us and on the standard of a balance of probabilities, that the worker’s right ear hearing loss is not the result of the accident at work in December 1996. Therefore, the worker’s claim is not acceptable, and the appeal is denied.

Panel Members

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 23rd day of December, 2022