The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on January 12, 2023 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 August 11, 2020, reporting a gradual hearing loss which he attributed to his job duties with the employer. On the attached Work History Summary, the worker noted he was employed with the employer from July 1972 to February 1999, during which time he was exposed to loud noise for eight hours a day and noticed his hearing was deteriorating.

On August 25, 2020, the WCB contacted the worker to discuss his claim. The worker advised that his wife and people around him started noticing his hearing loss approximately 10 years earlier, and that he had noticed a gradual decline in his hearing since then. The worker further advised that hearing protection was not used when he started working for the employer, but that after three or four years, they had hearing protection in the form of ear muffs which were attached to the hard hats they used. The worker also advised that he was exposed to loud noise for six to eight hours a day while at work, that he had no non-occupational exposure to noise, and that there was no history of hearing impairment in his family. The WCB advised the worker of the criteria for acceptance of a noise-induced hearing loss claim and that further investigation would be undertaken.

On August 31, 2020, the WCB was provided with a copy of an August 10, 2020 audiological assessment and hearing loss report, in which the treating audiologist opined that the worker had mild sensorineural hearing loss in both ears and recommended a trial of binaural hearing aids. The audiologist noted the worker reported "…a significant history of noise exposure" and that his family had been complaining he was not hearing well. The audiologist further noted that "This hearing loss likely has several contributing factors including noise exposure and aging."

On November 12, 2020, the employer advised the WCB that they could not find records for the worker. On November 13, 2020, the worker's WCB adjudicator located records of previous claims the worker had filed with the WCB while employed with the employer. On November 16, 2020, the worker's WCB adjudicator noted they were able to establish the worker was employed with the employer in 1972, and that there was no hearing protection for the first three to four years of his employment. The adjudicator further concluded that noise levels for the employer obtained from WCB noise level survey data indicated the worker would have been exposed to noise levels above 85 dBA.

At the adjudicator's request, the worker's file was reviewed by a WCB Ear, Nose and Throat (ENT) consultant on November 16, 2020. The consultant opined that the configuration of the August 10, 2020 audiogram was indicative of presbycusis, and not noise-induced hearing loss, and asked that the adjudicator attempt to locate earlier audiograms for the worker.

On December 3, 2020, the WCB spoke with the worker and advised that his claim was not acceptable, as the medical information did not support noise-induced hearing loss. The worker provided the name of an audiologist who had tested the worker's hearing in or around 1974. The WCB asked that the worker attempt to locate earlier audiograms and indicated that they would look into this as well.

On February 19, 2021, the employer provided the WCB with an Employer Hearing Loss Report, together with copies of noise level studies from 1988 and 1990 and audiometric records for the worker from 1974 to 1997.

On February 25, 2021, the adjudicator requested that the WCB's ENT consultant review the worker's file again. The adjudicator noted that the worker left his employment with the employer in 1999 so the nearest audiogram to that date was in 1997. The consultant opined that the first audiogram to indicate noise-induced hearing loss was in 1992 for the left ear and 1993 for both ears, and that based on the 1997 audiogram, the worker did not require hearing aids.

In a memorandum to file dated March 3, 2021, the worker's WCB adjudicator noted that after considering the available noise level information and the use of hearing protection, the worker would not have been exposed to noise levels above 85 dBA. On March 3, 2021, the WCB advised the worker that his claim was not acceptable.

On April 14, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that his treating audiologist supported he had worked in a loud environment for 27 years, and that this was more of a contributing factor to his hearing loss than aging. The worker also provided contact information for three co-workers who worked with the worker in the same environment and had acceptable WCB claims for noise-induced hearing loss.

On May 20, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found that the first indication the worker had noise-induced hearing loss was in 1992, being eight years after the worker had been provided with hearing protection, and that if there was a relationship between the worker's noise-induced hearing loss and his employment, it would have occurred prior to 1992.

On August 11, 2021, the WCB received a report from a second treating audiologist dated August 5, 2021, in which the audiologist opined that the worker's hearing loss was likely a combination of age-related and noise-induced hearing loss related to his 27 years of exposure to noise when employed by the employer. The audiologist further opined that the 1994 audiogram indicated the worker had early signs of noise-induced hearing loss, which meant that the noise during his employment was at a damaging level and damage was already occurring. On August 18, 2021, Review Office provided the worker with a further decision letter indicating the new medical information did not change their decision that his claim was not acceptable.

On September 6, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act") and regulations, and by policies established by the WCB's Board of Directors. The applicable legislation is the Act as it existed at the date of accident.

Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss. The Policy 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 was represented by a worker advisor, and was accompanied by his spouse at the hearing. The worker's representative provided two written submissions in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.

The worker's position was that he suffered noise-induced hearing loss as a result of his exposure to hazardous noise in the workplace and his claim is acceptable.

The worker's representative noted that the worker was employed by the employer for 27 years, from 1972 to 1999. The representative submitted that noise level surveys from 1988 and 1990 showed that the noise exposure in the department where the worker was employed ranged from 84 to 112 decibels, or 84 to 94 decibels if the levels from one particular station was excluded from the measurement. The worker confirmed at the hearing that he did not work at that particular station, but stated that he walked by it regularly, maybe once or twice a day. The representative submitted that as hearing protection was not provided until 1984, the evidence supported that until at least 1984, the worker was exposed to noise above 85 decibels, which met the threshold level for noise exposure under the Policy.

The worker's representative further submitted that even though a hearing protection plan was implemented in 1984, the worker continued to be exposed to noxious noise beyond that date. The representative stated that when the noise reduction rating for the available earmuffs was adjusted to reflect individual or "real world" differences, the use of the earmuffs would not have reduced the level of worker's exposure to noise in the workplace to below 85 dBA.

In response to questions from his representative, the worker also indicated that the cushioning on the earmuffs would sometimes crack and the earmuffs would have to be replaced. The worker noted that the earmuffs would also become itchy, so he would also have to adjust them a couple of times a day while he was working. The representative submitted that the earmuffs being cracked or having to be adjusted would further reduce the level of noise protection they provided.

The worker's representative further noted that the evidence supported that there were significant fluctuations in the industrial noise in the workplace, and submitted that micro-exposures to noise which was well above 85 decibels were sufficient to cause noise-induced hearing loss over the worker's 27 years of employment with the employer. It was submitted that there is no evidence the worker's hearing loss was caused by anything other than his workplace exposure. There is no other history of noise exposure and his pre-employment medical showed he had no problems with his hearing.

The worker's representative submitted that while the WCB's ENT consultant opined that the earliest audiograms to show signs of noise-induced hearing loss were in 1992 for the left ear and 1993 for both ears, the first signs of noise-induced hearing loss appeared much earlier than that. The representative referred to a May 31, 2022 report from a treating ENT specialist that had been provided in advance of the hearing, in which the specialist noted she had reviewed the worker's 1974 to 1997 audiograms, and opined that the audiograms appeared normal until 1982, but showed hearing loss from 1983 to 1997, the pattern of which was typical of noise exposure. The worker's representative argued that a review of the audiograms showed that there was shifting in the worker's hearing in the 1980s, and submitted that greater weight should be given to the May 31, 2022 opinion of the treating ENT specialist than that of the WCB ENT consultant.

In conclusion, it was submitted that the evidence supports that the worker was exposed to noxious noise at work and has noise-induced hearing loss as a result. The threshold criteria under the Policy for a claim for noise-induced hearing loss have therefore been met and the worker's appeal should be granted and his claim accepted.

Employer's Position

The employer was represented by its Health, Safety, Security, and Environment Manager, who was accompanied by two other employer representatives and participated in the hearing by teleconference. The employer's position was that they supported the Review Office decision that the worker's claim for noise-induced hearing loss was not acceptable.

The employer's representative acknowledged that the available records indicate there were some higher sound levels in the workplace, but noted the records also show that a hearing conservation program was in place. The representative noted that the worker underwent annual hearing checks, and submitted that the audiometric records for the worker indicate there were minimal shifts in the worker's hearing from 1974 through 1983. The records also confirm that the worker wore hearing protection in the form of earmuffs from the beginning of 1984 to 1997, which would have reduced the worker's noise exposure to levels which were safe.

It was submitted that the audiometric record and test results through to 1997 show that the shifts in the worker's hearing, whether considered from a baseline in 1974, or in 1984 when hearing protection was in place, were minimal at best. The employer's representative acknowledged that the worker was diagnosed with hearing loss in August 2020, and a trial of hearing aids was recommended for both ears at that time. The representative noted, however, that this diagnosis and recommendation were made more than 20 years after the worker left his employment with the employer.

In conclusion, the employer's representative submitted that they agreed with the decision that the worker's hearing loss was not related to his employment with the employer, and asked that the appeal be dismissed.

Analysis

The issue 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 sustained noise-induced hearing loss in 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.

The criteria under the Policy provide that the worker must have been 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 is reduced by half. That is the threshold that must be met. Based on our review of all of the evidence and submissions which are before us, the panel is not satisfied that this noise threshold has been met.

The panel accepts that the worker worked in a noisy environment and was exposed to loud noise at work. The panel also accepts that the worker has experienced a loss of hearing. The panel is unable to find, however, that the threshold criteria under the Policy for noise-induced hearing loss have been met or to connect the worker's hearing loss to his employment with the employer.

The panel accepts that the worker was exposed to high levels of noxious noise prior to hearing protection becoming available in 1984. Based on the evidence on file and as presented at the hearing, however, the panel is unable to find that the worker was exposed on a continuous or consistent basis to levels of noise which were sufficient to meet the minimum levels of noxious noise or threshold criteria under the Policy in the performance of his duties.

The panel notes that noise levels documented in the available noise level surveys are not consistent. A noise level survey from 1983 which was included in the documentation that was submitted by the worker in advance of the hearing showed sound levels in the department where the worker was employed ranged from 85 to 104 dBA. The noise level surveys on file from 1988 and 1990 show that noise levels in that same department ranged from 84 to 112 dBA.

The worker confirmed at the hearing that he did not work at the particular station where the highest noise levels were noted. While the worker indicated that he would have walked by that station, his evidence was that this would have happened maybe once or twice a day and that he kept his distance from that station for safety reasons. The panel is satisfied that his exposure to the noise levels at that station would have been fleeting at best. When the levels for this station are excluded, the range of sound levels at the remaining positions in the department are listed in the 1983 survey as 85 to 101 dBA, and in the 1988/1990 survey as 84 to 94 dBA.

The evidence supports that the worker generally continued in the same position throughout his employment. The employer noted that the closest station to the worker's station with respect to which noise level information was provided in the 1983 survey showed a sound level of 88 dBA. The employer indicated that they believed this was accurate for that station, but added that the worker's station was located even further down the line, was one of the quietest stations in the department and the sound level would have been even lower.

The panel is further satisfied that the evidence supports that the worker was not exposed to high levels of noxious noise after hearing protection became available in 1984. The evidence indicates that the worker used that protection at work, and while he referred to having certain problems with the hearing protection, the panel is satisfied that the hearing protection would have reduced the worker's exposure to hazardous noise to below the 85 dBA level that is required under the Policy.

The panel carefully considered the May 31, 2022 report from the treating ENT specialist, but is unable to place significant weight on the specialist's conclusion that "noise has contributed to [the worker's] hearing loss." While the specialist commented that hearing loss is documented from 1983 to 1997, the panel notes that results from audiometric testing subsequent to 1983 appear to be inconsistent with the previous results, and to indicate that the worker's hearing was relatively normal or stable.

The evidence shows that the worker retired from his employment with the employer in 1999. The first recommendation for a trial of binaural hearing aids was made in 2020. The panel accepts that the 2020 audiogram indicates a substantial worsening of the worker's hearing as compared to his last hearing test in 1997, but is unable to account for the more than 20 year gap in time between the worker's retirement from his employment with the employer and his 2020 hearing assessment and recommendation that hearing aids be trialed

The significant length of time between working for the employer and the onset of the hearing loss symptoms or difficulties is not consistent with the panel's understanding of noise-induced hearing loss, being that symptoms would occur much more proximate to when the worker was exposed to noxious levels of occupational noise.

It is the panel's further understanding that once a worker is removed from the noxious levels of occupational noise, the damage to the hearing would not deteriorate further. This is contrary to this worker's experience where his hearing has continued to deteriorate after he left his employment. In the panel's view, this information further supports that the worker's ongoing hearing problems are not related to a workplace injury.

Based on the foregoing, the panel is unable to find that the worker's hearing loss and ongoing hearing problems are causally related to his work or job duties. The panel therefore finds, on a balance of probabilities, that the worker did not sustain noise-induced hearing loss in the course of his employment due to exposure to high levels of noxious noise as set out in the Policy and that the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of March, 2023