Decision #129/23 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to a permanent partial impairment award. A file review was held on November 21, 2023 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to a permanent partial impairment award.
Decision
The worker is not entitled to a permanent partial impairment award.
Background
The worker filed a Worker Hearing Loss Report with the WCB on December 10, 2018, reporting gradual hearing loss which they believed was related to their job duties. In the Report, the worker noted they first became aware of their hearing loss in the 1990s and indicated they used hearing protection at work since 1987. The worker also provided a Work History Summary noting their employers since 1987 and indicating that at each workplace they were exposed to loud noise for 10-12 hours per day but wore hearing protection, and the worker also submitted workplace audiometric testing records for the years 1987 to 2002.
In a discussion with the WCB on December 13, 2018, the worker confirmed they first noticed difficulty with their hearing in the 1990s and that they currently experienced constant tinnitus in both ears as well as hearing loss. The worker advised the WCB that in September 2017, they accepted a new position with the employer in an office setting and were no longer exposed to noise in that role. The worker also advised their non-occupational noise exposure included some snowmobiling between 2003-2008, occasional home power tool use, and firearm use prior to the late 1990s. The WCB informed the worker of its criteria for an acceptable noise-induced hearing loss claim and indicated further investigation was required.
On January 4, 2019, the WCB received an audiogram indicating the worker had mild to moderate severe hearing loss in their right ear and mild hearing loss in their left ear. The WCB also received copies of noise level testing reports, job description information and hearing tests from the worker's previous employer. The WCB requested additional information from the employer but did not receive it.
On March 8, 2019, a WCB adjudicator reviewed the information received and confirmed the worker’s claim met the criteria for noise-induced hearing loss with the previous employer. A WCB Ear, Nose and Throat (ENT) specialist also reviewed the worker’s claim file on the same date and concluded the worker had noise-induced hearing loss, with the audiograms showing right ear hearing loss in 1998 and in both ears by 2019. Based on the January 4, 2019 audiogram, the ENT specialist determined the worker was not entitled to a permanent partial impairment award for their hearing loss but was entitled to hearing aids. On March 18, 2019, the WCB advised the worker the claim was accepted and the WCB would fund bilateral hearing aids.
On June 20, 2023, the worker requested Review Office reconsider the WCB's decision that they are not entitled to a permanent partial impairment award, noting they continued to suffer from tinnitus, which has affected their health. On August 22, 2023, Review Office found the worker was not entitled to a permanent partial impairment award. Review Office noted the January 4, 2019 audiogram indicated the worker had hearing loss but did not reference the worker's tinnitus. Further, Review Office found the WCB's ENT specialist reviewed the file information, including the January 4, 2019 audiogram and calculated the sum of the worker's hearing loss to be 25 decibels in their right ear and 21.25 decibels in the left ear, which was not sufficient loss to be rateable. Review Office further found that while tinnitus could be compensable if associated with noise-induced hearing loss, there was no documented history of the development of tinnitus related to the worker's employment.
The worker filed an appeal with the Appeal Commission on September 19, 2023 and a file review was arranged.
Reasons
Applicable Legislation and Policy
The panel is bound by and must apply the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB. The legislative provisions 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 (“PPI”), as well as medical aid and wage loss benefits, as outlined in s 37 of the Act. 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 has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the “NIHL Policy”) to address how it will adjudicate claims related to occupational hearing loss. The NIHL Policy provides that determination of a worker’s permanent impairment is provided for in Schedule B, Impairment of Hearing, to Policy 44.90.10. The NIHL Policy goes on to set out that that the WCB may consider awarding an impairment award for tinnitus when it is secondary to noise-induced hearing loss and there is a history of 2 or more years of continuous tinnitus.
The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a 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 appropriate PPI Schedule attached to the Policy.
Schedule B to the Policy outlines three possible methods for rating impairment of hearing, the use of which is governed by the date of accident. For new decisions regarding permanent impairment with an accident date occurring on or after April 1, 2000 and for reconsiderations and reassessments with an accident date occurring on or after February 1, 2003, Method 3 applies. Under Method 3, the impairment rating is to be determined as follows:
1. Calculating the percentage of hearing loss in each ear;
2. Calculating the combined percentage of hearing loss;
3. Converting the loss of hearing to an impairment of the whole person.
To calculate the percentage of hearing loss in each ear, Method 3 requires the following process to be followed:
1. Test each ear and record the hearing levels at 500, 1000, 2000 and 3000 Hz. Add the value of the hearing levels at 500, 1000, 2000 and 3000 Hz in each ear.
2. If the level of hearing loss is less than 100 dB in the better ear, the percentage of hearing loss in that ear should be taken as 0%.
3. Consult Table 4-1 to determine the percentage of hearing loss in each ear.
4. If the level of hearing loss falls between values on the chart, round the level to the nearest 5 dB of hearing loss.
The following formula is to be used to determine binaural hearing impairment:
Total % = ([5 x % hearing impairment in better ear] + % hearing impairment in poorer ear) /6
Method 3 further provides that the WCB will compensate workers for hearing loss caused by occupational noise, but not for hearing loss caused by age and sets out a formula to do so. Method 3 also addresses the presence of tinnitus and sets out that for rating purposes, tinnitus, when secondary to noise-induced occupational hearing loss, is rated as a 2% impairment of the whole person.
Worker’s Position
The worker outlined their position in the Appeal of Claims Decision form provided to the Appeal Commission on September 9, 2023. The worker stated that:
The audiologist report dated Jan 4/2019 failed to report my concerns about my tinnitus, in our conversation [the audiologist] had “informed me” that [there] is no relief for this and only diagnosed my hearing loss. I do not know why he had not put this in the report.
The worker went on to note that in 2021, they left the industry in which they worked and that they have suffered from tinnitus for several years now without relief. The worker indicated this results in sleep deprivation, and the need to “sleep with fans, and sleep apnea machine so I can tolerate this tinnitus. So I ask that I may be compensated for this.”
Employer’s Position
The employer provided information to the Appeal Commission in an email dated October 5, 2023 which sets out the worker’s dates of employment from November 5, 2012 to September 3, 2021. The employer’s environmental health and safety manager, who provided the information, indicated that the worker “…was not exposed for extended periods of time where noise levels exceeded 85 db. Or if at all. We do require hearing protection in our shops but [the worker] was primarily working in the office.”
Analysis
This appeal arises from the WCB’s decision that the worker is not entitled to a permanent partial impairment award in relation to their compensable bilateral hearing loss claim. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained a rateable hearing loss, or that the evidence establishes the worker developed tinnitus secondary to their noise-induced hearing loss and demonstrates a history of 2 or more years of continuous tinnitus. As detailed in the reasons that follow, the panel was unable to make such determinations and therefore the worker’s appeal is denied.
First, the panel reviewed the process and calculations that the WCB undertook in determining that the worker’s noise induced hearing loss was not rateable. We do not find any errors in that process which determined that the worker’s bilateral hearing loss was not sufficient to meet the rating requirements set out in the PPI Policy as the degree of the worker’s hearing loss in each ear was calculated at 0%.
The panel also considered the worker’s submission that they are entitled to a PPI award in respect of their tinnitus, which the worker believes is related to their compensable workplace hearing loss. As noted above, the NIHL Policy outlines that that the WCB may consider awarding an impairment award for tinnitus when it is secondary to noise-induced hearing loss and there is a history of 2 or more years of continuous tinnitus.
The evidence before the panel indicates the worker’s report that they developed and have suffered from right ear tinnitus since at least 2018, as indicated in the worker’s December 10, 2018 Hearing Loss Report. A file memo dated December 13, 2018 indicates the worker reported to the WCB that they experience tinnitus in both ears, which they first noticed while working with a previous employer prior to 2002, and that the tinnitus worsened in the previous couple of weeks and was now constant. There is not, however, any evidence such as medical or audiological reports that corroborates or confirms the worker’s statements in this regard. Specifically, the panel noted that the treating audiologist’s report of January 4, 2019 makes no mention of tinnitus, despite the worker’s assertion that they discussed this concern with the audiologist.
As such, the panel finds the evidence does not demonstrate a history of two or more years of continuous tinnitus at the time of the WCB’s 2019 decision that the worker was not entitled to a PPI award. Therefore, the worker is not eligible for a PPI award related to their reported tinnitus under the provisions of the NIHL Policy.
Based on the evidence and applying the standard of a balance of probabilities, the panel is not able to determine that the worker is entitled to a permanent partial impairment award in relation to their compensable noise induced hearing loss claim. Therefore, the claim is denied.
Panel Members
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
- Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of December, 2023