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 teleconference hearing was held on April 20, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker provided the WCB with a Worker Hearing Loss Report on January 21, 2019, reporting a gradual hearing loss which he had not reported to the employer. The worker attributed his hearing loss to his work experience in general. The worker noted he always wore hearing protection. He also listed non-occupational noise exposure including motorcycle riding and right-handed shooting for periods of time.

In his Work History Summary which was included with the Hearing Loss Report, the worker noted he served in the military for 14 years and worked for two other employers for another 14 years, all outside Canada, during which time he was periodically exposed to loud noise. The worker was then employed with the accident employer for 21 years, from June 1988 to his retirement on October 31, 2009. The worker noted that his work with the accident employer involved management and supervision of maintenance and repair operations, which consisted of "office work with some exposure to shop floor environment" and that he had some difficulty with his hearing in background noise at that time.

On February 8, 2019, the WCB contacted the worker to gather further details. The worker confirmed the information he had submitted to the WCB. The worker advised his employment with the employer involved office work with some work in the shop floor environment, and noise exposure of two to three hours per day. The worker noted he wore hearing protection in the form of ears muffs or plugs as much as possible until his retirement in 2009. The worker further confirmed recreational motorcycling prior to 1988 and recreational shooting since 1990. The worker also confirmed he had been in the military, but had not been exposed to a loud blast or explosion. The worker indicated his only hearing test was four or five years ago, at which time he needed hearing aids. 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 February 8, 2019, the WCB wrote to the treating hearing centre to request a copy of any reports or audiograms with respect to the worker's hearing test. On February 11, 2019, the WCB was advised that a hearing test was done on June 14, 2011 and the results would be filed in storage.

On February 28, 2019, the WCB received an Employer Hearing Loss Report from the employer, who advised the worker had been employed with them from July 1988 until his retirement in 2009, holding three different positions. The employer noted that the position the worker held from June 1989 until his retirement was mostly an office position, which involved some duties in the maintenance department. The employer further advised that this position was not available anymore, and they did not have information on what the worker's noise exposure would have been.

On March 26, 2019, the WCB adjudicator placed a note on the worker's file setting out their rationale as to the levels of noise the worker would have been exposed to at work. The adjudicator noted the employer confirmed the worker's employment from 1988 to 2009, and that the worker would have been in an office environment most of the time, with minimal noise exposure. The adjudicator further noted the worker advised he was exposed to noise for two to three hours per day, while wearing either ear muffs or plugs. The adjudicator determined that based on noise level information received from the employer and the worker's constant use of hearing protection, they were unable to confirm sufficient noise exposure to accept the worker's claim for noise-induced hearing loss. By letter dated April 9, 2019, the WCB advised the worker that his claim was not acceptable.

On October 27, 2022, the worker submitted further information, including a June 7, 2021 audiologic report, and requested that Review Office reconsider the WCB's decision that his claim was not acceptable. In the audiologic report, the treating audiologist noted the worker described extensive noise exposure, with artillery use in the military and job duties prior to the use of hearing protection being mandatory, as well as recreational firearm use with hearing protection. The audiologist further noted the worker reported right-sided tinnitus as far back as his time in the military. The audiologist stated that the test results indicated "…bilateral precipitously sloping, high frequency hearing loss, essentially sensorineural in nature," which was "…secondary to extensive noise exposure and some presbycusis," and recommended bilateral hearing aids.

On November 22, 2022, Review Office determined that the worker's claim was not acceptable. Review Office found the worker's job duties with the employer prior to his retirement in 2009 involved mostly work in an office environment, with two to three hours daily on the shop floor with hearing protection. Review Office further found the employer had limited information on the worker's position as it no longer existed, and they were unable to confirm the amount of time the worker was on the shop floor. Given the available information, Review Office found the worker's exposure to noxious noise would not have been sufficient to meet the criteria for a noise-induced hearing loss claim.

On January 19, 2023, the worker appealed the Review Office decision to the Appeal Commission, and a 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.

The WCB's Board of Directors has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"). The Policy outlines the WCB's approach to claims arising from long-term exposure to occupational noise causing hearing loss, and provides, in part, that:

2. Claims for long-term exposure to hazardous noise may be considered and paid on the basis of a worker's exposure with employers who are or had been registered with the Manitoba WCB.

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…

Worker's Position

The worker was self-represented, and was accompanied by his spouse at the hearing. The worker made a presentation, and the worker and his spouse responded to questions from the panel.

The worker's position was that his hearing loss was due to his exposure to high levels of noxious noise in the performance of his work and his claim should be accepted.

The worker submitted that the WCB and Review Office's application of a minimum threshold level of exposure over a constant period of time was neither realistic in the long term nor fair.

The worker said he spent his entire working life working on aircraft, where he was exposed to high levels of noise on an ongoing basis. The worker described working with aircraft as being different from simply working in a continuous noise environment. The worker submitted that in arriving at their decisions, the WCB and Review Office failed to understand the damage that can be done to hearing by sudden or short term, high pitched noise. The worker cited as an example, the high pitched squeal of a particular aircraft engine, noting the noise caused by its compressor disc has become accepted as particularly damaging to hearing.

The worker noted he spent 35 of his 49 years at work working with and around that particular engine, including his last 21 years with the accident employer. The worker submitted that while working in a managerial position with the employer, he was often in a position where someone would start an engine while he was next to it discussing a problem, and he would get caught without hearing protection.

The worker acknowledged that part of his working life was spent outside the country, but submitted that the last 21 years of his career were spent working in Manitoba and should qualify him for help in regaining his hearing. The worker submitted he underwent a hearing test as part of a medical examination which was required before coming to Canada, which he passed. He noted that since then, he has undergone two hearing tests, both of which showed the same thing, namely that he had lost his hearing at high frequencies. The worker noted that the tests showed his hearing at the lower frequencies was quite good, and only disappeared going into the higher frequencies, which he submitted is because of his exposure to the high pitched squeal of the aircraft engines.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue on appeal is whether or not the worker's claim for noise-induced hearing loss is acceptable. 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 with the accident employer 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 Policy provides that claims for long-term exposure to hazardous noise may be considered and paid on the basis of a worker's exposure with employers who are or had been registered with the Manitoba WCB. The worker acknowledged that he spent the first 28 years of his working life outside the country, but submitted that his claim should be acceptable based on his exposure to hazardous noise during the 21 years of his employment with the accident employer.

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 which must be met for the worker's claim to be accepted by the WCB.

The panel acknowledges 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. Based on the evidence, however, the panel is unable to find 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 accident employer.

While the worker's focus on the appeal was on the sporadic and sudden, high pitched squeal which was produced by the particular engines he worked with or around, the panel notes the claim has been advanced based on long-term exposure to noxious noise and the worker did not relate his hearing loss to a particular occurrence or acute injury.

The panel notes the worker's duties with the accident employer were described in his Hearing Loss Report as involving management and supervision of maintenance and repair operations, which consisted of some office work with some exposure to the shop floor environment. In response to further questions at the hearing with respect to his job duties, the worker said his normal work hours were Monday to Friday, from 8:00 a.m. to 4:30 p.m., but he was also always on call. The worker said it was difficult to say how much time he spent in the office, on the floor of the hangar, or outside on the ramp, noting:

I'll be in the office, writing a report, then it would be downstairs in the hangar or the workshops dealing with the problem down there, and then I'd be outside doing something on the ramp, then back inside again and back in the office…back out again into a meeting, back downstairs, then it is, like, I'm constantly on the go…You can't say that you're in the hangar most of the time, because you're not. It's – some days, you'll be continually in the hangar depending on the work going on, some days you'll spend in the office.

With respect to the extent of his exposure to noxious noise, the worker stated that it was not a matter of how much time he spent sitting in the office; that to go out and hear the squeal of the engines for a couple of hours, or even a few minutes until he could get his headphones or ear muffs on, was very detrimental. The worker noted he had his own set of hearing protection, but the employer always had a supply of ear muffs as well. He said the employer provided the standard type of earmuffs, and when something happened and it got noisy all of a sudden, "…you grab a set of earphones and stick them on. Of course, if you happen to be outside, stood next to the aircraft, you had to stick your fingers in your ear and run for it. It's just part of the job really."

The panel acknowledges the worker's position and concern with respect to his exposure to high pitched engine sounds, including the sudden and unexpected exposure to the squeal of engines for short periods of time before he was able to put hearing protection on. The panel notes, however, that the worker had previously indicated that he always wore hearing protection or that he wore it as much as possible, and is satisfied that the worker generally used hearing protection or had it with him when he was working outside the office, which would have reduced the number of such unexpected exposures and the level of noise to which the worker was exposed.

In the circumstances, and given the nature and variety of the jobs the worker performed, the limited evidence as to noise levels the worker would have been exposed to the performance of his duties with the employer, and the use of hearing protection, the panel is unable to find that the worker's exposure to noise during the course of his employment with the employer was sufficient to satisfy the noise exposure criteria as set out in the Policy.

The panel further notes that the worker submitted that the only hearing test he had prior to working for the accident employer was a hearing test he had as part of a medical examination which was required before coming to Canada. The worker said he did not have the results of that test, but assumed there was no problem with his hearing at the time.

The worker stated that hearing tests were not mandatory and the accident employer did not provide for testing for most of his employment. The worker noted that towards the end of his employment, at his request, the employer started offering to cover the cost of hearing tests for anyone who wanted to go and get tested. The worker was unclear as to when such coverage started, but thought it was around 2005 or at least a couple of years before his retirement. The panel notes that the worker did not, however, go and get his hearing tested at that time.

While the worker did have two other hearing tests, both of those tests were after his retirement in 2009, with the first one being in 2011 and the second in 2021. The worker stated his hearing had gradually gone downhill, but he did not know when it started deteriorating. He said that for the last ten years even he had noticed it, and agreed that it was fair to say that his hearing had been getting worse for the last ten years.

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 with the accident employer. 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 with the accident employer due to exposure to high levels of noxious noise as set out in the Policy. As a result, the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of June, 2023