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 April 12, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On September 30, 2019, the worker submitted a Worker Hearing Loss Report and Work History Summary to the WCB reporting gradual hearing loss which they attributed to their employment with the employer. The worker noted they worked for the employer for approximately 43 years, with hearing protection first available in 1977 and worn for 42 years. The worker further noted some non-occupational noise exposure and that they had been exposed to a loud blast or explosion while doing an inspection at work. On the Work History Summary, the worker indicated they took a position in the office starting in 1985 and continued in that position. The worker also submitted audiograms from 1986 to 2018.

The WCB received a September 27, 2019 audiogram report on October 2, 2019, in which the audiologist indicated the worker had "Hearing loss in both ears for five years or more" and had hearing screenings done at work. The audiologist also noted the worker’s report of a history of occupational noise exposure. Testing revealed the worker had moderate sensorineural hearing loss in their right ear and mild sensorineural hearing loss in their left, and as a result, the audiologist recommended binaural hearing aids. The audiologist noted that "Client suspects location of noise source in work environment could explain greater hearing loss in right ear."

When the WCB contacted the worker on October 8, 2019 to discuss their claim, the worker advised they noticed their gradual hearing loss around 2007 or 2009 and reported it to their employer. The worker confirmed the information they submitted on the Report and Summary and advised they were exposed to an explosion when the covers blew off an engine in 1982 or 1983 while performing an inspection. The worker advised they had ringing in their ears afterward, and then it went away. The worker further confirmed that since 1985, they worked in the office with limited noise exposure and periodically operated a forklift or tractor.

The employer provided the Employer Hearing Loss Report to the WCB on October 15, 2019, noting that although the worker related their hearing loss to their employment, the worker's exposure to noise would have been intermittent as the positions were rotated until the worker began their office position in 1985. The employer further noted that a hearing protection program was in place but could not confirm when it was implemented and provided a copy of a Personal Protective Equipment guideline dated November 8, 1994. The employer also noted the equipment the worker had been using was no longer in use and as such, noise level testing had not been conducted. The employer also submitted hearing test results for the worker from 1992 to 2003.

On October 30, 2019, the WCB asked the WCB Ear, Nose and Throat (ENT) specialist review the worker’s file and on October 31, 2019, the specialist provided their opinion that “The configuration of the audiograms on file is suggestive of NIHL (noise induced hearing loss). The earliest audiogram to show signs of NIHL in the right ear is dated 1991.The earliest audiogram to show signs of NIHL in both ears is dated 2006.”

The WCB advised the worker on November 7, 2019 their claim for noise induced hearing loss was not accepted as the information on file indicated the worker had not been exposed to loud noise since 1985 when they began working in an office, and the WCB ENT specialist determined that signs of NIHL were evident in the right ear in 1991 and in both ears in 2006. As such, the WCB could not relate the worker’s hearing loss to their employment.

The worker requested reconsideration of the WCB’s decision to Review Office on May 4, 2022. In their submission, the worker provided further details about their job duties, indicating that while they worked in an office, the space “…was located between the machine shop and the mechanic’s shop. The noise was so loud at times I could not hear what was said on the telephone.” Further, the worker noted they also continued duties involving using a forklift in a warehouse area and training other employees to use that equipment, and that from 1985 to 2010, they were responsible for snow removal which involved using a loader without an insulated cab, and a walk behind snowblower. On June 13, 2022, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation regarding the worker’s job duties and whether or not the worker was exposed to noxious noise with other employers listed on their Worker History Summary.

On June 30, 2022, the WCB contacted the worker to gather further information and the worker confirmed the information on their reconsideration request, that while they worked in an office setting since 1985, people were always coming and going through the office which exposed them to the noise of the machine and mechanic’s shops their office was situated between. The worker noted the noise was so loud at times, they had to raise their voice to speak to someone beside them. Further, the worker noted they were frequently in the stores and shop areas and as they received telephone calls all the time, they wore a telephone headset and could not wear hearing protection. The worker also advised the WCB that they did snow removal for the employer from 1985 to 2003 using a loader and drove older model diesel and gas trucks from the office to a warehouse 5 blocks away occasionally starting after 2006. The worker further advised they continued to operate a gas forklift after 2006, for times ranging from 1 hour per day up to 6 hours per day. The worker advised the WCB they retired in 2020. The worker confirmed their job duties from the other employers listed on the work history summary did not involve exposure to noise.

On the same date, the WCB placed noise level testing results from the employer’s welding/fabrication shop to the worker’s file. On July 27, 2022, the WCB spoke with the employer who confirmed there were no employees working in the shop area referred to by the worker after 2005 until the worker retired in 2020. Further, the employer confirmed that while the worker may have operated the forklift, it was usually for vacation relief and did not occur on a regular basis. The employer also confirmed there was no noise level testing done in the area where the worker worked as there was no machinery in that area.

On August 5, 2022, the WCB advised the worker that, after review of the further information provided, the earlier decision was unchanged, and the claim was not acceptable. The worker requested reconsideration of the WCB’s decision to Review Office on December 8, 2022. In their submission, the worker indicated they were exposed to noise in their office which was located in a stores room with a parts window that was opened frequently by employees picking up parts 8 hours a day. Further, the worker noted the shop area was used as a maintenance shop for heavy equipment from 2010 to 2018, with air tools used to perform repairs.

On January 4, 2023, Review Office determined the worker’s claim was not acceptable. Review Office found the evidence did not support the worker’s hearing loss was as a result of their employment or job duties.

The worker filed an appeal with the Appeal Commission on January 11, 2023 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 and WCB policies 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.

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 at the hearing representing themselves. The worker provided an oral submission in support of their appeal and offered testimony in response to questions posed to them by members of the appeal panel.

The worker’s position is that their hearing loss developed as a result of exposure to noise in the workplace while in the employ of the employer beginning in 1974 through to 2019. The worker stated that when they were in a foreman role, they were exposed to engine noise at the same level as a locomotive, and after 1977, they used hearing protection in the form of foam plugs. After 1985, the worker was in an office-based position, but that office was located between two other noisy work areas and did not provide a complete sound barrier as it was uninsulated and contained a window that would frequently be opened (estimated at 50-75 times daily) by employees requesting the worker provide various parts to them. Additionally, during the period from 1985 through to the date of claim, the worker also spent significant time training other employees in forklift operation, and in providing relief in shipping and receiving, each of which necessitated exposure to greater noise on the shop floor than was usual in the office space. The worker also described using a headset for their phone when they were on the shop floor after 2006, and that when doing so, they only wore one ear plug. The worker also described that in the storage area, where they spent approximately half their days between 1985-87 and 2009-2010, they were exposed to noise from an air compressor and from the equipment in use outside that space.

The worker explained that they recalled first noticing a loss of hearing at some point in the late 1990s and that both their spouse and colleagues also pointed out to the worker that they were having to repeat themselves when speaking with the worker. Although workplace hearing tests were provided through the years, other than from 2003-2006, the worker noted that the testing booth was not soundproof. They did not have a formal hearing test until 2019, after they advised the employer of their intent to make a hearing loss claim to the WCB.

The worker relied on the audiological testing results from 2019 to support their position that their bilateral hearing loss is the result of their workplace exposure to noise. As the worker was exposed to noise in the workplace and as they have bilateral noise induced hearing loss, the worker believes that the claim should be accepted, and the appeal granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue on appeal is whether the claim is acceptable. To find that the claim is acceptable, the panel would have to determine that the worker’s hearing loss is, on the balance of probabilities, the result of exposure to noise in the workplace. The panel was unable to make such a finding on the basis of the evidence before us, and for the reasons that follow.

While the evidence supports that the worker now has bilateral sensorineural hearing loss and that there was a 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 as a result of such noise exposure. For a claim to be accepted, there must be not only evidence of sensorineural hearing loss, but there must also be evidence of noise exposure in the workplace above the threshold established in the Policy. A claim for NIHL 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.

Here the evidence contained in the historical hearing testing reports indicated that the worker showed signs of NIHL in 1991 in their right ear but did not show signs of NIHL in their left ear until 2006. The 2019 audiological testing results indicated moderate right ear sensorineural hearing loss “…at 3000-4000 Hz rising to mild at 6000 Hz and dropping to moderately severe at 8000 Hz.” In the left ear, the testing indicated mild sensorineural hearing loss at 3000-8000 Hz.

The evidence further indicates that the worker began their employment with the employer in 1974 and continued in that employment until 1978, and then worked in the same areas again from 1982-85, during which time they worked with various large machinery and equipment. The file evidence supplied by the employer indicates noise levels in the worker’s job area of 94 dBA. The panel also accepts the evidence of the worker confirming their use of hearing protection after 1977 when it was mandated. The worker also confirmed that after 2006, they used a headset for their telephone when on the shop floor, so that they only had protection in one ear at those times. The panel also noted the worker’s testimony that they would shift the headset from side to side during the day, as it would become uncomfortable.

The panel considered that while the worker was employed in a noisy work environment until 1985, from that time onward, the worker’s job duties were primarily located within an office space. The worker’s evidence is that this office was uninsulated and located between two other noisy work areas, and included a service window that would be opened many times each day, permitting more noise to enter that space. While we accept that the worker would have continued to be exposed to some noise in this environment, as well as on the shop floor, when required to be there, we also note the employer’s information that hearing protection was not required in this work area. The panel also noted the evidence that the worker’s hearing deteriorated quite some time after leaving their position in the area of greatest noise exposure. Some six years after the worker’s exposure was reduced in 1985 when they took on an office-based role. Their hearing in their right ear began to deteriorate, and it was another 15 years later, when the worker’s left ear hearing also began to deteriorate, although not to the same degree as their right ear. Although the worker continued to have some daily noise exposure, as indicated in their evidence, we do not find that the evidence supports that this was at sufficient levels and duration to meet the threshold required in the Policy.

Furthermore, the evidence before the panel does not explain the worker’s asymmetrical development of hearing loss as relates to their job duties. There are no occupational factors in evidence that could satisfactorily explain why the worker’s right ear hearing began to diminish some 6 years after moving into a less noisy work environment, and why the worker’s left ear hearing did not follow a similar pattern until some 15 years later. If the workplace noise exposure was the cause of the worker's hearing loss, the panel would have expected a more symmetrical pattern of hearing loss development.

As such, while the panel accepts that the worker has bilateral sensorineural hearing loss, we are unable to determine on the basis of the evidence before us and on the standard of a balance of probabilities that this hearing loss is the result of their workplace exposure to noise. We therefore conclude that the claim is not acceptable, and the worker’s appeal is dismissed.

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 11th day of May, 2023