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 hearing was held on August 9, 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 December 31, 2015 reporting a gradual hearing loss they first noticed in 2009 and which they related to their employment. The worker noted they used power tools at home and had been a right-handed shot with a firearm but had not used a firearm since they were 16 years old. The worker reported using hearing protection for the 20 years protection had been available from the employer. The worker provided the WCB with a Work History Summary, listing their employers and noting exposure to loud noise for 8 hours per day with each employer and a progressive decrease in their hearing.

The WCB spoke with the worker on January 12, 2016 to gather further information. The worker confirmed the information on their Report and added they experience occasional ringing in their ears for which they have not sought medical treatment. The worker provided a chronological list of their employers and advised their last hearing test was on February 11, 2015. The WCB advised the worker they would be asking their previous employers for their reports and copies of any audiometric testing done and would provide the worker with a decision after review of the information.

On January 15, 2016, the WCB received the Employer Hearing Loss Report from the employer indicating the worker had been employed with them from November 28, 2011 to July 26, 2013 during which time hearing protection was available and worn by the worker while they were working. An Employer Hearing Loss Report was received for the worker’s current employer on January 27, 2016 indicating the worker had reported their hearing loss to the employer from the start of their employment. The worker’s current employer noted the worker would be exposed to various levels of noise throughout their work day. Further reports were received from the worker’s previous employers including an employer the worker was employed with from March 2008 to September 2011 who indicated the worker would have been exposed to intermittent noxious noise for over 5 hours per day, depending on the job site they were working on and was provided with hearing protection.

A February 1, 2016 audiologic report was received from the worker’s treating audiologist. The report indicated moderate sloping to moderately severe and rising to normal sensorineural hearing loss on the right and moderate sloping to moderately-severe and rising to moderate sensorineural hearing loss on the left. Binaural hearing aids were recommended. On April 28, 2016, the worker’s former employer provided the WCB with the worker’s audiometric records from testing completed in 2009 and 2011.

At the request of the WCB, the worker’s file was reviewed by a WCB Ear, Nose and Throat (ENT) specialist on May 1, 2016. The specialist opined the audiograms on file “…have a cookie-bite configuration” which was not typical of noise-induced hearing loss and was “…suggestive of a hereditary or genetic type of hearing loss.” It was further noted by the WCB ENT specialist the worker had been seen by an ENT specialist previously and requested the WCB to gather further information. On May 10, 2016, the WCB contacted the worker who advised they had been seen by a ENT specialist over 20 years previously and they did not recall who the specialist was. Further, the worker advised of an elderly family member who had worn hearing aids but no others. The WCB had a further discussion with the WCB ENT specialist to advise of the information from the worker and the specialist provided there was no change to their opinion the audiograms on file were not consistent with noise-induced hearing loss. The worker was provided with a formal decision letter on the same date advising a review of their file found they did not meet the criteria for noise-induced hearing loss pursuant to the WCB’s policies and legislation and as such, their claim was not acceptable.

The worker requested reconsideration of the WCB’s decision to Review Office on October 21, 2016. The worker noted their disagreement with the WCB’s decision their claim was not acceptable as they noted none of their family members had hearing issues, which disputed the WCB’s opinion the worker had a hereditary hearing loss. Further, the worker noted they had worked in the same industry for 40 years being exposed to noise and had first noticed difficulties 20 years previously. On November 23, 2016, Review Office upheld the WCB’s decision and determined the worker’s claim was not acceptable. Review Office relied on and accepted the opinion of the WCB’s ENT specialist that the worker’s audiograms were not indicative of noise-induced hearing loss but were suggestive of a hereditary or genetic type of hearing loss.

The worker filed an appeal with the Appeal Commission on May 2, 2023 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”), regulations, and policies of the WCB’s Board of Directors. The applicable legislation is the Act as it existed at the date of injury.

A worker is entitled to benefits under subsection 4(1) of the Act where it is established that the worker was injured as a result of an accident at work. 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. As such, the NIHL Policy applies in this case. The NIHL Policy states, in part, as follows:

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.

Workers Position

The worker was self-represented at the hearing. It was the worker’s position that his claim for NIHL should be accepted and hearing aid coverage ought to be granted.

The worker advised the panel that he has worked in construction for a significant part of his working life. This involved exposure to loud noise throughout the worker's 40 years of work in the trades.

The worker also noted that approximately 20 years ago, while assisting in the construction of a new building, a co-worker shot something into a steel beam. He said that he immediately noticed something happen to his hearing at the time. Since that incident, the worker said his hearing loss has grown progressively worse.

Although he is off work at this point, he would like to return to light duties but is unable to do so without hearing aids as most employment opportunities require him to be able to hear. He added that his hearing loss is also affecting his day-to-day life and making it difficult to follow conversations or interact with others. Although he is aware that the WCB has attributed his hearing loss to genetic conditions, he notes that only one member of his family suffered from hearing loss.

For these reasons, he submitted that his claim should be accepted and he should be entitled to hearing aids arising from workplace activity.

Employers Position

The employer did not participate in the appeal.

Analysis

While the worker requested hearing aids, the issue for the panel to determine is whether or not the worker's claim for NIHL is acceptable. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker’s hearing loss resulted from their exposure to noise in the workplace. For the reasons that follow, the panel is unable to make that finding.

There is no dispute that the worker suffers from hearing loss. Not all hearing loss, however, is caused by exposure to noise at work. In order to succeed on his appeal, therefore, the worker must demonstrate that there is a causal relationship between the hearing loss and his employment duties or the environment in which he worked. This would include, for example, providing evidence that the worker was exposed to noise in excess of 85 decibels for 8 hours per day over a 2 year period or medical information that confirms the hearing loss is indicative of noise exposure.

The worker has worked for a number of different employers throughout his working life who were contacted about his noise exposure while at work. While one employer noted that the worker worked in ‘a relatively quiet environment,’ others responded that he did have exposure to noise. One stated that he worked with hammer drills, among other things, intermittently throughout the day on various construction sites, another stated that he worked with a grinder, power-activated tool and drill, and another still stated that he was exposed to noisy conditions but added that he had access to ear plugs.

The worker also had his hearing tested in 2009, 2011 and again in 2016. The hearing reports and audiograms were reviewed by the WCB’s ENT consultant who commented that: “All the audiograms on file (2009, 2011 and 2016) have a cookie-bite configuration. This configuration is not typical or diagnostic of NIHL. It is suggestive of a hereditary or genetic type of hearing loss.”

The panel has carefully considered the worker’s evidence of his exposure to noise working construction over the years, the statements from his former employers, and the hearing reports and audiograms as well as the review completed by the WCB’s ENT. The panel notes that while a number of employers acknowledge exposure to noisy conditions, the panel notes that the exposure does not meet the criteria of ‘consistent exposure to 85 decibels for 8 hours per day over a 2 year period.’ In terms of the medical evidence, the panel notes that the reports display an initial downward sloping graph line into the range of hearing loss, then level out and slope upward through the higher frequencies. This is what the WCB’s ENT consultant has referred to as a ‘cookie-bite configuration.’ The panel understands that this configuration on the audiogram is not typically associated with NIHL hearing loss but rather, in keeping with hereditary or genetic hearing loss. In contrast, NIHL hearing loss usually presents as a downward sloping graph through the frequencies with a small upward correction through the higher frequencies.

Based on our review of all of the evidence before us, the panel concludes that the worker’s hearing loss does not fit the criteria for NIHL. The panel is therefore satisfied that the worker’s hearing loss was not the result of exposure to noise in the workplace and is therefore not causally related to exposure to noxious noise in the workplace.

The worker asked the panel to consider his report of an incident approximately 20 years ago when a co-worker shot into a steel beam very close to him. The worker believes this caused or contributed to his hearing loss. It appears the first time this incident was noted by the worker to be a potential cause of his hearing loss was at the Appeal Commission hearing. As this specific incident has never been considered or adjudicated by the WCB the panel is unable to consider it.

The worker’s claim for NIHL is not acceptable and the worker’s appeal is dismissed.

Panel Members

K. Wittman, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of October, 2023