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 teleconference hearing was held on November 24, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on January 10, 2022 reporting gradual hearing loss that they related to the equipment they used while employed with the employer. The worker did not report any other non-work exposure to noise. In the Work History Summary, the worker indicated they worked for the employer from 1975 to 2005, and that since then, they worked for another employer but were not exposed to noise in that employment.

When the WCB contacted the worker to gather further information on January 27, 2022, the worker advised that they first noted their hearing difficulties approximately 13 years previously, with tinnitus in both ears around the same time, and that their hearing loss had progressively worsened. The worker indicated their job duties with the employer involved using a band saw for approximately 4 or 5 hours a day with no hearing protection provided. The worker confirmed they had not sought medical treatment or testing for their hearing loss but were assessed by a hearing specialist on December 23, 2021. The worker also confirmed they did not have any medical condition or non-occupational/recreational noise exposure that may affect their hearing.

The WCB received a copy of the December 23, 2021 report from the worker’s treating Ear, Nose and Throat (ENT) specialist on February 2, 2022. The specialist noted the worker was referred due to complaints of bilateral tinnitus and hearing loss. An audiogram test conducted by the treating specialist indicated the worker had “…moderate to moderately severe sensorineural hearing loss in the higher frequencies” and noted the worker’s tinnitus was related to their hearing loss “which is likely noise induced.”

The worker had a further audiological test done on February 14, 2022, in which the audiologist recorded the worker’s report of long standing bilateral tinnitus that had worsened, becoming intrusive and disrupting their sleep and understanding of speech. Further, the worker reported a history of occupational noise exposure. The audiologist concluded that the testing results indicated a “…mild sloping to moderately-severe sensorineural hearing loss…” and recommended a trial of bilateral hearing aids for the worker.

On March 11, 2022, the employer provided the WCB with an Employer Hearing Loss Report for the worker and included noise level testing results. The employer indicated that from 1975 to 2003, the worker had worked with a band saw and was exposed to noise levels of 83-90 dBA, one to three hours per day in their job duties. The noise level testing provided by the employer indicated band saw levels of 84-92 dBA for approximately two to four hours per shift. The WCB placed a memorandum to file on March 11, 2022 noting that, based on the information provided, the worker would have been exposed to noxious noise above the WCB’s threshold for an acceptable hearing loss claim.

A WCB audiology consultant reviewed the worker’s claim file on May 13, 2022, including the audiogram findings. With respect to the December 23, 2021 audiometric assessment, the audiology consultant noted that a sloping pattern of hearing loss was present, in keeping with a pattern of presbycusis, or age-related hearing loss. The consultant further stated that presbycusis could obscure a typical “notch” pattern of noise-induced hearing loss over time so further calculations were performed to determine if an audiometric “bulge” was present. No bulge was noted for either ear, and the audiology consultant concluded the audiogram findings did not indicate noise-induced hearing loss in either of the worker’s ears. The WCB audiology consultant noted the December 23, 2021 testing did not include results for 3000 Hz and 6000 Hz, and stated those frequencies were important for consideration of noise-induced hearing loss claims as they are potentially involved in an audiometric notch or bulge. As such, the consultant also reviewed the February 14, 2022 audiogram. In reviewing these audiogram results, the audiology consultant noted a gradually sloping pattern of hearing loss present in both ears, with no notch pattern evident. A similar calculation was performed due to the presence of presbycusis and again, no audiometric bulge was found. The consultant therefore concluded that the audiogram evidence did not indicate the worker had noise-induced hearing loss.

On May 31, 2022, the WCB advised the worker that their claim for noise-induced hearing loss was not acceptable.

On June 27, 2022, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. In the request for reconsideration, the representative noted the evidence indicated that the worker was exposed to noxious noise above the WCB’s threshold for acceptance of a hearing loss claim and that the worker’s treating healthcare providers agreed the worker had hearing loss and tinnitus related to their exposure to noxious noise at work.

On July 20, 2022, Review Office upheld the WCB’s decision and found the worker’s claim was not acceptable. Review Office accepted the opinion of the WCB audiology consultant and noted the consultant had spoken with the worker’s treating ENT specialist while reviewing the worker’s file, with the specialist acknowledging the typical noise-induced hearing loss “notch” was not present on the December 23, 2021 audiogram. Further, Review Office found the worker reported the onset of their hearing loss and tinnitus difficulties occurred approximately 13 years earlier after the worker had not worked with the employer for a period of time and the delay in onset of hearing loss could not be accounted for.

The worker’s representative filed an appeal with the Appeal Commission and a teleconference hearing was arranged for November 24, 2022.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and forwarded to the interested parties for comment. On January 16, 2023, 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", subject to subsection (1.1), includes

(a) a chance event occasioned by a physical or natural cause,

(b) a wilful and intentional act that is not the act of the worker, or

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

The WCB's Board of Directors has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the "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 with a representative who made an oral submission to the panel in support of the worker’s appeal. The worker also provided testimony through answers to questions posed by members of the appeal panel.

The worker’s position, as outlined by their representative, is that the evidence confirms that the worker was exposed to excessive noise in the course of their employment and that the worker has sustained bilateral hearing loss with tinnitus, first noted approximately 13 years before their claim. The evidence further confirms that the worker’s daily workplace noise exposure levels were between 83-90 dBA, with no hearing protection provided or used by the employer. Further, there is medical evidence that the worker’s tinnitus is related to their high frequency sensorineural hearing loss which is likely noise induced and therefore, the worker’s claim should be accepted.

In their submission to the panel, the worker’s representative outlined the worker’s employment history noting the worker’s daily use of a bandsaw in the course of their work from 1975 to 2003, as well as the evidence as to the level of noise produced by this tool. The representative noted that the WCB confirmed in a document dated March 11, 2022 that the worker was exposed to noise in the workplace above the threshold amount as required by the WCB’s Policy.

The worker’s representative confirmed that the worker first noted ringing and buzzing in their ears approximately 13 years earlier, with the symptoms of buzzing worsening over the years and making it hard for the worker to hear. The worker’s representative relied upon the December 23, 2021 report from the treating ENT specialist as confirming the worker’s tinnitus was related to their noise exposure and noted that the audiogram findings confirm that the worker has bilateral high frequency sensorineural hearing loss with tinnitus. The representative noted that the treating ENT specialist advised the worker in July 2022 that they had not seen the February 2022 audiogram findings.

In answer to questions posed by members of the appeal panel, the worker testified that they did not recall any hearing tests prior to December 2021, although noting that they had told their doctor about the tinnitus. The worker explained that they went for a hearing test when they noticed that the “zooming noise” worsened. The worker testified that after retiring in 2003, their hearing and tinnitus symptoms began to worsen around 2009.

In sum, the worker’s position is that as a result of their workplace exposure to noise in excess of the WCB threshold level, from 1975 to 2003, they sustained bilateral hearing loss and developed tinnitus and therefore the claim should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue on appeal is whether or not the claim is acceptable. For the panel to find that the claim is acceptable, it would have to determine that the worker’s hearing loss is the result of exposure to noise in the workplace. The panel was not able to make such a finding for the reasons that follow.

While there is evidence of the worker’s bilateral sensorineural hearing loss and their history of workplace noise exposure, not all hearing loss is caused by or the result of noise exposure in the workplace. Further, not all workers experience hearing loss from such workplace noise exposure.

In this case, the WCB determined that the worker was exposed to noise in the course of their employment that exceeded the threshold required by the Policy. There is no evidence before the panel to contradict that finding and the panel therefore accepts and relies upon the WCB’s determination in this regard. Further, the panel accepts and relies upon the evidence that the worker was not provided with and did not use appropriate hearing protection in the course of their employment.

The evidence before the panel further confirms that the workplace noise exposure occurred during the period of the worker’s employment with the employer, which was from 1975 to 2003. The panel noted that the worker has repeatedly stated that they first became aware of hearing loss and tinnitus approximately 13 years prior to initiating their claim, which the panel accepts would have been no less than 6 years after leaving their job in the noisy environment.

The worker’s position is that as a result of their workplace noise exposure at levels above the threshold required by the WCB’s Policy for acceptance of a claim for noise induced hearing loss, they sustained bilateral sensorineural hearing loss and developed tinnitus. In support of their position, the worker relied upon the opinion of the treating ENT specialist dated December 23, 2021 which stated that the worker’s “…tinnitus is related to [their] high frequency sensorineural hearing loss which is likely noise induced.” The panel noted however that the WCB consulting audiologist, on reviewing the December 23, 2021 audiogram findings, concluded that those results were not in keeping with “probable NIHL in either ear” and further, that the subsequent audiogram findings of February 14, 2022 also were not in keeping with probable NIHL, noting the absence of the typical notch pattern indicative of NIHL as well as the lack of “any hidden ‘audiometric notch’, termed a ‘bulge’ in the NIHL literature” in either audiogram test result. The WCB consulting audiologist further noted that the audiogram configuration was consistent with the pattern of presbycusis, or age related hearing loss.

The panel sought further information from the worker’s treating ENT specialist following the hearing. The treating ENT specialist, on reviewing the February 14, 2022 audiogram results and the opinion of the WCB consulting audiologist, stated that “I am in agreement with the medical adviser’s opinion. I was unaware of the time frame with the onset of the patient’s tinnitus. I did not realize that this started many years after [they] stopped being exposed to high levels of noise….On review of this further information, I believe it is impossible to determine whether [the worker’s] current hearing loss was a noise-induced or presbycusis.”

The worker’s representative submitted that the worker could not have had age-related hearing loss at the time that they first noticed their hearing loss, noting that the worker was only in their early 50s at that time. The panel however noted that the worker was 65 years of age at the time of the audiograms relied upon.

The panel further noted that the worker’s symptoms of tinnitus and hearing loss were not noted while the worker was employed in the noisy environment, but 6 or more years later. We do not find that the timing of the development of these symptoms supports the worker’s position that their hearing loss is related to exposure to noise in the workplace. Further, if the worker’s tinnitus was related to their workplace noise exposure, we find it would have been evident when the worker was still in that environment. In this regard we rely upon and accept the opinion of the treating ENT specialist which supports the conclusion of the WCB medical advisor.

On the basis of the totality of the evidence before us and on the standard of a balance of probabilities, the panel finds that the worker’s bilateral sensorineural hearing loss is, more likely than not, the result of age-related deterioration, or presbycusis and is not the result of workplace exposure to noise. 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 2nd day of February, 2023