The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to a hearing aid for the right ear. A file review was held on January 24, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a hearing aid for the right ear.

Decision

The worker is not entitled to a hearing aid for the right ear.

Background

The worker provided a Worker Hearing Loss Report to the WCB on August 15, 2016 reporting a “slow decline” of their hearing over the previous year or two, which they related to their employment. In the Report, they noted occasional use of farm machinery and very rare use of power tools at home. The worker reported ringing in their left ear. With the Report, the worker included a Work History Summary that indicated employment with the employer for 10 years, with no hearing protection worn. The worker also submitted an August 9, 2016 audiogram which indicated a slight to moderately-severe high-frequency sensorineural hearing loss on the right and a mild to moderate high-frequency sensorineural hearing loss on the left. The treating audiologist recorded the worker’s history of difficulty hearing over the past two years, with a history of occupational noise exposure and occasional tinnitus and recommended binaural hearing aids.

On August 18, 2016, the WCB placed a memorandum to file noting the average noise level for the worker’s job occupation was confirmed as 87 dBA and the worker had been working for the employer for 10 years, from 1983 to 1993, and accordingly, the worker met the criteria under the WCB’s policies and legislation for noise induced hearing loss, subject to confirmation of the diagnosis by a WCB Ear, Nose and Throat (ENT) specialist. When the WCB contacted the worker to discuss their claim on August 18, 2016, the worker confirmed they had been experiencing intermittent ringing in their left ear in the last month or so, which prompted them to get their hearing tested. The worker further confirmed the information in their Report and added they also used a gun for target practice a few times, with no hearing protection worn. The worker noted they did not wear hearing protection for most of their working career, until their employment with another employer in 2010 and that they retired in 2013.

The worker’s file was reviewed by the WCB ENT specialist on August 19, 2016, who opined the August 9, 2016 audiogram indicated unilateral noise induced hearing loss (“NIHL”) on the left side, with normal hearing noted on the right side and requested the WCB obtain further information from the worker regarding their gun usage. The WCB spoke to the worker on August 22, 2016 and again on August 25, 2016 and on August 25, 2016, advised the WCB ENT specialist the worker was left handed and shot the gun from their left shoulder. On September 6, 2016, the WCB ENT specialist opined the worker had asymmetric hearing loss on the left side, along with tinnitus and suggested the worker be referred for an MRI study to rule out “The probability of an acoustic neuroma or retrocochlear pathology…”. The MRI study conducted on April 28, 2017 noted normal findings.

On May 16, 2017, the WCB ENT specialist reviewed the MRI study and the worker’s file, and concluded that the August 9, 2016 audiogram was the first indication of NIHL, in the worker’s left ear only and recommended a hearing aid for that ear only. On May 25, 2017, the WCB advised the worker their claim for noise induced hearing loss was accepted and they were entitled to a hearing aid for their left ear.

On June 14, 2017, the worker requested Review Office reconsider the WCB’s decision they were only entitled to a hearing aid for their left ear. The worker submitted that the treating audiologist recommended hearing aids for both ears due to their exposure to “…excessive and repetitive damaging levels of noise for over 25 years…”. On July 27, 2017, Review Office determined the worker was not entitled to a right hearing aid. Review Office agreed with and accepted the opinion of the WCB’s ENT specialist the medical evidence did not support the worker required a hearing aid for their right ear and noted the worker’s reporting of recent ringing in their left ear only.

The worker filed an appeal with the Appeal Commission on October 6, 2022 and a file review was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on May 29, 2023 to further to discuss the case and render a final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made pursuant to the Act and the policies established by the Workers Compensation Board of Directors. The legislative provisions in effect at the time of the 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. Section 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

The WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "NIHL Policy"), outlines the WCB's approach to claims arising from long-term exposure to occupational noise that causes hearing loss. The effective date for the NIHL Policy is for claims with a date of notification on or after October 1, 2013, and as such, the Policy applies in this case. The Policy states, in part, as follows:

3. 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.

7. When the WCB accepts a claim for noise-induced hearing loss and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the WCB under Policy 44.120 or 44.120.10, Medical Aid.

The WCB has also established Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) which defines key terms and sets out general principles regarding a worker’s entitlement to medical aid. The definition of medical includes medical supplies, orthotics and prosthetics, this include hearing aid. Schedule B to the Medical Aid Policy outlines that the WCB will fund medical devices and appliances if:

1. The medical device or appliance is prescribed or recommended by a recognized health care provider; 

2. The need for the medical device and/or appliance is the result of a compensable injury; 

3. The Board determines that the medical device and/or appliance will likely be or has been effective in the treatment or ongoing care of a compensable injury; and 

4. The Board considers the cost of the medical device and/or appliance to be reasonable.

Worker's Position

The worker represented themself in this appeal from the July 27, 2017 decision of Review Office and their position is outlined in the Appeal of Claims Decision form filed with the Appeal Commission on October 6, 2022, signed September 29, 2022.

The worker set out their request for coverage for a right hearing aid, outlining that they had a bilateral hearing assessment in August 2016 which resulted in findings of “slight to moderately severe high frequency sensorineural hearing loss to the right ear and mild to moderate high-frequency sensorineural hearing loss to the left ear.” At that time, the treating audiologist recommended bilateral hearing aids and noted the worker had a history of occupational noise exposure.

The worker submitted that the WCB’s decision to accept responsibility only for a left sided hearing aid was in error, given that “…further damage can present over time especially as the onset of noise-induced hearing loss is proven within medical research to be gradual in nature.” The worker stated that both ears would have been exposed to the same high levels of noise pollution during their 25-year career at levels that by today’s standards would be unacceptable without hearing protection.

The worker relied upon the provisions of the Policy, stating that the WCB’s acceptance of the claim for a left hearing aid makes it more likely than not that the worker’s right ear was also damaged by the workplace noise exposure. The worker further noted that the WCB’s Medical Aid Policy provides that the WCB will generally pay for medically prescribed treatments and standard prostheses when required by reason of a compensable injury, and when treatment or a device is likely to improve function or minimize the chance of aggravating the existing injury or causing further injury. The worker noted that the August 18, 2022 audiometric testing indicated moderately severe to severe high frequency hearing loss to both ears and that the treating specialist recommended binaural hearing aids.

The worker described the impact that their bilateral hearing loss has on their day to day life and stated that “I continue even with hearing aid support [to] have difficulty understanding and following conversations and word pronunciations, especially in environments with multiple people speaking or any kind of background interference.”

For these reasons, the worker submits that they should be entitled to bilateral hearing aids arising from their workplace exposure to noise and the appeal should be granted in respect of the request for a right hearing aid.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for the appeal panel to determine is whether the worker is entitled to a right hearing aid. For the worker’s appeal to be successful, the panel would have to determine that the worker requires a hearing aid for their right ear as a result of noise induced hearing loss arising from workplace exposure to noise. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore, the worker’s appeal is denied.

The panel noted that the WCB accepted the worker’s claim for NIHL arising from occupational exposure to noxious noise in the workplace on May 25, 2017 and agreed at that time that the worker required a left hearing aid. At that time the WCB determined that the worker was exposed to noise levels above the threshold required, as set out in the NIHL Policy, but that the worker had sustained hearing loss only in their left ear.

The panel considered the audiogram evidence from August 9, 2016 and noted that it indicates hearing loss in both ears, described in the report as slight to moderately severe high frequency sensorineural hearing loss to the right ear and mild to moderate high-frequency sensorineural hearing loss to the left ear. On initial review by a WCB ENT consultant on August 19, 2016, the specialist noted the findings indicated “unilateral (left) NIHL” and “unilateral (left) tinnitus.” This led to a query as to whether the worker was a left or right-handed firearm user. The worker indicated that they were a left-handed firearm user, and the WCB ENT consultant noted that this did not explain the worker’s unilateral left hearing loss. Given that occupational NIHL is usually bilateral and symmetrical, the ENT consultant raised further questions including whether there was any occupational explanation for the worker’s asymmetrical hearing loss. The worker provided information to the WCB indicating they worked using tools with their left hand and would therefore have their left side including their ear, leaned in toward the noise caused by using their tools. The WCB ENT consultant also enquired about the possibility of an acoustic neuroma or retrocochlear pathology to explain the worker’s asymmetrical hearing loss and requested an MRI study, but that study did not reveal any cause for the clinical findings of left sided sensorineural hearing loss and tinnitus. It was based on these findings that the WCB determined on May 25, 2017 that the worker was exposed to noxious levels of noise while working but was entitled to a left hearing aid only.

The evidence further indicates that the worker again had their hearing tested in August 2022 at which time the findings indicated “Moderately severe to severe high frequency loss binaurally” with the assessor indicating that binaural amplification was now required. The assessor noted that the worker “explained there would be no reason why one ear would effected (sic) more than the other. Harmful effects can continue even after noise exposure has stopped and clearly this is the case for [the worker].”

The panel sought a further opinion from the WCB ENT consultant considering the more recent findings. In an opinion dated February 14, 2023, the WCB ENT consultant explained that their opinion is based on the evidence that the worker’s last exposure to noxious noise in the workplace without hearing protection was in 1995, noting that hearing loss due to noise exposure “…does not continue to deteriorate after noise exposure is removed” and that the hearing loss due to workplace noise exposure from 1972 – 1995 is permanent but that progression of hearing loss after 1995 would not be medically accounted for in relation to the occupational noise exposure ending at that time. The WCB ENT consultant concluded that the “…deterioration of hearing between the August 9, 2016 and August 18, 2022 audiograms are in keeping with presbycusis (age related hearing loss) rather than noise induced hearing loss…”.

The panel reviewed the information provided by the worker in their initial claim and noted that after 1995 until their retirement in 2013, the worker did not have daily exposure to noxious noise in their work, or if they did, they used hearing protection. As such, we accept the WCB ENT consultant’s opinion based on the worker’s lack of exposure to workplace noise after 1995. We further note that the evidence indicates that the worker’s right ear hearing deteriorated significantly from 2016 to 2022, although the worker had already retired in 2013 and there is no evidence of any subsequent occupational noise exposure.

Although the worker believes their right ear hearing loss must be related to their occupational noise exposure, the evidence here does not support that conclusion. The panel is satisfied that if the worker’s right hearing loss was the result of their workplace exposure to noise it would not have increased after that exposure concluded when the worker retired. As noted by the WCB ENT consultant, the deterioration of the worker’s hearing from 2016 to 2022 is more likely than not due to age related hearing loss, or presbycusis, rather than noise exposure. We accept the ENT consultant’s evidence that “…hearing loss due to noise exposure does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued.” As such, we are unable to find that the recommendation for a right hearing aid to enhance the worker’s hearing is causally related to the compensable workplace exposure to noxious noise.

On the basis of the evidence before us, and on the standard of a balance of probabilities, the panel is satisfied that the worker’s further hearing loss after 2016 is not causally related to the

worker’s exposure to noxious noise in the workplace. Therefore, the worker is not entitled to a right hearing aid and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of June, 2023