The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The permanent partial impairment rating of 2% has been correctly calculated; and 

2. The monetary award of $2,920.00 for their permanent partial impairment has been correctly calculated.

A file review was held on May 11, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker's permanent partial impairment rating of 2% has been correctly calculated; and 

2. Whether or not the worker's monetary award of $2,920.00 for their permanent partial impairment has been correctly calculated.

Decision

1. The permanent partial impairment rating of 2% has not been correctly calculated; and 

2. As the panel determined the rating has not been correctly calculated, the worker's file is returned to the WCB for further adjudication.

Background

The worker filed a Hearing Loss Report with the WCB on January 22, 2021, reporting a gradual hearing loss they attributed to their employment. After gathering further information from the worker, their audiologist and the employer, the WCB advised the worker on May 4, 2021, their claim for noise-induced hearing loss was accepted and while the medical information supported an asymmetrical hearing loss, the opinion of the WCB's Ear, Nose and Throat (ENT) advisor was the worker would benefit from the use of 2 hearing aids. It was noted in the May 4, 2021 decision letter however, due to the asymmetrical hearing loss which the ENT advisor attributed to firearm usage, the right ear threshold was used for both purposes to calculate a permanent partial impairment rating and as a result, the worker did not qualify for a permanent partial impairment award for noise induced hearing loss (NIHL).

On August 30, 2021, the worker submitted a copy of an October 9, 2020 report from their treating ENT specialist. The specialist noted the worker had "…bilateral tinnitus associated with hearing loss" and had significant loud noise exposure related to their employment. In a handwritten note at the end of the report, the treating ENT specialist indicated the tinnitus was reported in January 2020. On November 24, 2021, the WCB advised the worker as they did not have a two year reported history of tinnitus from their family physician, they were not entitled to a permanent partial impairment rating or award for tinnitus.

The worker's spouse contacted the WCB on January 20, 2022 to advise they had a copy of a report from the worker's treating family physician in 2013 indicating the worker had tinnitus. The WCB requested the worker's spouse provide them with a copy of the report to be reviewed. A copy of a Hearing Evaluation Report, dated January 22, 2013, was provided to the WCB on January 27, 2022, noting the worker's family physician was to be provided with a copy of the report. The WCB requested additional medical information from the worker's family physician, who advised the WCB on March 14, 2022, they could not find any record of hearing loss or tinnitus in the physician's chart notes. The worker provided a copy of an August 25, 2022 report from their family physician to the WCB, indicating the worker had "…continuous tinnitus since 2013" and that the worker's ENT specialist had confirmed the worker had tinnitus since May 2020.

The worker's file was reviewed by a WCB audiology consultant, who provided their opinion to the worker's file on October 25, 2022. The January 22, 2013 audiogram, along with the medical information provided by the worker's treating family physician were reviewed and the audiologist opined the worker's initial date where signs of noise-induced hearing loss and tinnitus were found was January 22, 2013. Further, it was noted the medical information supported the worker had 2 years of documented continuous tinnitus secondary to their noise-induced hearing loss, which resulted in a 2% whole body impairment in accordance with the WCB's regulations and policies. On November 24, 2022, the worker was advised of the outcome of the review and that the requirement for a 2 year documentation of continuous tinnitus secondary to noise-induced hearing loss had been met, which resulted in a 2% permanent partial impairment rating. On November 25, 2022, the worker was provided with a permanent partial impairment monetary award of $2,920.00, representing the monetary award calculated in accordance with the WCB's regulation.

The worker requested reconsideration of the WCB's decision to Review Office on December 7, 2022. In their submission, the worker noted they continued to experience difficulties due to the noise-induced hearing loss and related tinnitus and those conditions were getting worse. The worker believed they were entitled to a greater rating and monetary award.

Review Office determined, on January 11, 2023, the worker's permanent partial impairment rating of 2% had been correctly calculated and the monetary award of $2,920.00 for the permanent partial impairment had not been correctly calculated. Review Office accepted and agreed with the opinion of the WCB ENT advisor the worker had asymmetrical hearing loss due to firearm usage and as such, the threshold for the worker's right ear was the correct one to use. As such, Review Office found the correct calculation was made and the worker was not entitled to a permanent partial impairment rating for noise-induced hearing loss. Review Office accepted the medical evidence the worker had an over 2 year reporting of tinnitus and noted the permanent partial impairment rating of 2% for tinnitus was correct. With respect to the monetary award, Review Office found the WCB incorrectly used the amount set for each percentage based on an incident date of 2020, when the worker's date of accident was noted to be in 2013, when the amount for each percentage for a permanent partial impairment award was set at $1,250.00 rather than the $1,460.00 used to calculate the worker's award. On February 3, 2023, the WCB contacted the worker to advise as it was an administrative decision that reversed the permanent partial impairment reward amount, the WCB would be writing off the amount and the worker would not be required to pay it back.

The worker filed an appeal with the Appeal Commission on March 1, 2023 and a file review was arranged.

Following the hearing, the appeal panel requested additional medical information from the WCB ENT advisor prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On July 25, 2023, the worker provided an additional response addressing the additional medical information from the WCB ENT advisor. In the worker’s additional response the worker indicated that they had shot a firearm once when they were nine years old. The worker also indicated that while working as a trucker about ten years prior they had experienced two loud tire blow outs in close proximity to their left ear, which is likely what caused the asymmetrical hearing loss. The worker indicated that he had reported these tire blow outs to WCB in the Work History report submitted on January 22, 2021. On August 3, 2023, and again on August 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 and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect at the time of the accident are applicable.

Under s 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. That compensation includes awards for permanent partial impairment, as provided for in s 37 of the Act:

Compensation payable

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of the Act allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole body impairment.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "Policy") sets out that benefits are calculated under the Policy by determining a rating that represents the percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Impairment of Hearing Schedule which is attached as Schedule B to the Policy.

Schedule B sets out the methods by which permanent impairment of hearing is to be rated. For decisions where the date of accident is after April 1, 2000, the Schedule requires that Method 3 be applied. This involves calculating the percentage of hearing loss in each ear, calculating the combined percentage of hearing loss and then converting the loss of hearing to an impairment rating of the whole person.

Worker’s Position

The worker outlined their position to the appeal panel via written submissions.

The worker noted that their hearing loss began many years ago and at least prior to 2013. It was the worker’s position that their hearing loss was due to approximately 35 years working as a heavy equipment operator, with two (2) occasions of exposure to very loud tire blow outs in close proximity to their left ear. The worker noted that they had reported these tire blow outs to the WCB in the Work History Summary form dated January 22, 2021.

The worker confirmed that the only available audiogram was from January 22, 2013, and it demonstrated that there were signs of noise-induced hearing loss and tinnitus.

The Appeal of Claims Decision form submitted March 1, 2023, also outlines the basis for the worker’s appeal, as follows:

Decision made by (sic) regarding firearms use. I disagree with this. I didn’t fire a gun every day for forty years. I drove truck and ran heavy equipment every day. We don’t agree with the percentage of hearing loss that you claim George has.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker's permanent partial impairment rating and monetary award have been correctly determined. For the worker's appeal to succeed on this question, the panel must find that the Act or the Policy was not correctly applied. The panel is able to make that finding for the reasons that follow.

The panel first considered whether the WCB ENT advisor's assessment was conducted in accordance with the process set out in the Policy and Schedule B. The panel reviewed the report from the WCB ENT advisor dated April 29, 2021, who assessed the degree of the worker’s permanent partial impairment for NIHL. In this report the WCB ENT advisor confirmed that the worker has a non-rateable NIHL of 102db in their right ear and a rateable NIHL of 182db in the left ear.

Due to the asymmetry of the NIHL in the worker’s ears, the WCB ENT advisor assumed that a non-compensable pre-existing condition of NIHL existed in the worker’s left ear due to firearm usage. Although the WCB ENT advisor attributed the asymmetrical hearing loss to firearm usage as a youth, the panel notes that there is a lack of medical information to support that conclusion, such as hearing tests from that time period. Further, the WCB ENT advisor specifically noted that the worker’s pre-existing condition was non-compensable based on their assumption that no occupational reason existed for the worker’s pre-existing condition. This assumption was made notwithstanding the worker had indicated to WCB that their left ear had experienced significant exposure to loud noises during the course of their employment over the 35 years of working as a truck driver.

Based on the WCB ENT advisor's assumption that the asymmetry in the worker's hearing loss was due to a non-compensable pre-existing condition, the WCB assigned a rating on the basis that noise exposure from the workplace should affect both ears equally. Accordingly, the loss affecting each ear was established to be 102 Db being equivalent to the loss experienced by the worker in their better ear. The bilateral 102 Db loss was then compared to table 4-1 as contained in Method 3 of Schedule B of the Permanent Impairment Rating policy resulting in a 0% impairment rating.

The panel reviewed the WCB ENT advisor's methodology in calculating the worker’s whole body impairment rating as it relates to their NIHL and found that based on the evidence on file it cannot conclude that the worker’s asymmetrical NIHL was due to firearm usage. Although the panel acknowledges that firearm usage could be one reason for the asymmetrical NIHL or for a portion of the asymmetrical NIHL, the worker provided an occupational reason for the asymmetry, which was disclosed to the WCB. Namely, the worker disclosed that over several decades of working as a truck driver without ear protection, he had experienced greater noise exposure in his left ear due to driving with the driver side window open, thereby exposing his left ear to significantly more construction noise. Accordingly, the panel finds that the ENT’s conclusion that the worker’s NIHL was not rateable due to a non-compensable pre-existing condition cannot be supported by the evidence on file and that the worker’s NIHL should be re-rated by the WCB given that it was compensable NIHL.

In sum, the panel is satisfied the Review Office, in relying on the ENT advisor's assumption that the worker’s asymmetrical NIHL was due to firearm usage as set out in their April 29, 2021 report, incorrectly determined that the worker’s PPI rating had been correctly calculated.

Therefore, the panel finds on balance of probabilities that the worker’s permanent partial impairment award of 2% has not been correctly established. In turn, the panel finds on a balance of probabilities that the worker’s monetary award of $2920.00 for their permanent partial impairment award has not been correctly calculated.

The worker's appeal is therefore allowed and the determination of the worker’s PPI rating should be reassessed by WCB.

Panel Members

N. Smith, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

N. Smith - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of September, 2023