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 videoconference hearing was held on November 28, 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 a Worker Hearing Loss Report to the WCB on July 8, 2004, reporting hearing loss which they first noted in the late 1970s, and a ringing in their left ear that began in the late 1990s, which the worker related to their employment. In the report, the worker noted they were not provided with hearing protection at work. The worker also provided a summary of their previous employers and noted the deterioration in their hearing began with their employer in 1970. The worker also submitted an audiogram and report from the treating Ear, Nose and Throat (ENT) specialist dated June 17, 2004, in which the specialist noted the worker’s report of longstanding hearing loss, with their left ear being worse, because of their exposure to noise at work. The ENT specialist provided an opinion that the audiogram indicated “…severe mixed loss in the right ear and a moderate to severe mixed loss in the left ear” and noted the worker also had evidence of scarring in their ear drums and eustachian tube dysfunction.

On July 22, 2004, the employer provided the WCB with noise level results from testing conducted in 2003 which found noise levels at the employer’s premises ranged from 78.1 dBA to 81.5 dBA. The employer also provided a December 12, 2003 notice to their employees indicating that while the noise levels were below the level where hearing protection becomes mandatory, they would provide hearing protection to workers who request it. The Employer’s Report of Hearing Loss submitted to the WCB on July 26, 2004 noted the noise testing levels and that the worker was not exposed to loud noise while at work.

On August 9, 2004, the WCB advised the worker that their hearing loss claim was not acceptable as the evidence did not support the worker was exposed to loud noise above the threshold required by the WCB’s policies and regulations.

The worker resubmitted a Hearing Loss Report to the WCB on May 18, 2010 and on May 26, 2010, the WCB advised it had previously decided their claim was not acceptable. On June 24, 2010, the WCB received a report from a second treating ENT specialist that indicated the worker had been treated for chronic ear disease, including an ear surgery on December 3, 2008. The specialist provided a September 29, 2009 audiogram, which they stated indicated the worker had “…high tone hearing loss and ringing which has been more of a problem in her left ear.” The specialist noted the information provided by the worker supported the conclusion that the worker’s symptoms resulted from their exposure to noise.

On August 10, 2010, Review Office received the worker’s June 9, 2010 request for reconsideration of the WCB’s decision that their claim was not acceptable. In their submission, the worker noted that noise levels at their other employers were not investigated by the WCB and noted their belief they were exposed to loud noise with their previous employers. On September 9, 2010, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.

The WCB’s Compensation Services reviewed the information from the worker’s previous employers on September 14, 2010, September 16, 2010, and September 20, 2010, including hearing loss claims from other workers with each of the worker’s previous employers, and noted most of those claims were not accepted as the WCB could not establish those workers were exposed to noxious noise. On September 20, 2010, the WCB advised the worker that upon further review of their claim, it could not establish the worker was exposed to sufficient noxious noise in their workplace and their claim was not acceptable.

The worker again submitted a Worker Hearing Loss Report to the WCB on June 20, 2023, indicating their gradual hearing loss related to their employment. The worker noted they recently had ear surgery by an ENT specialist to attempt to restore their hearing and provided a June 19, 2023 audiogram indicating the worker had moderate sloping to severe sensorineural hearing loss in both ears and recommending hearing aids for both ears. On June 23, 2023, the WCB advised the worker their claim had been reviewed previously and they were advised on August 9, 2004 and September 20, 2010 their claim was not acceptable.

On July 11, 2023, the worker requested Review Office reconsider the WCB’s decisions, noting the treating healthcare providers support the worker’s claim that exposure to noise while at work caused their hearing loss. On July 20, 2023, Review Office determined the worker’s claim was not acceptable. Review Office found that the cause of the worker’s hearing loss was likely related to their chronic ear infections, and that although the worker submitted that exposure to noise over 70 dBA can damage hearing with prolonged exposure, the WCB’s Noise-Induced Hearing Loss Policy requires exposure to noise levels over 85 dBA for 8 hours a day over a minimum period of two years. Review Office determined the evidence did not establish that the worker met the Policy’s threshold criteria for exposure to noxious noise and therefore the claim was not acceptable.

The worker filed an appeal with the Appeal Commission on August 8, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional 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 January 24, 2024, to discuss the case and render its decision on the issue under appeal.

Reasons

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s 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. The Act defines “accident” in s 1(1) as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease,

and as a result of which a worker is injured.

The WCB's Board of Directors has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), which provides, in part, that:

“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 appeared in the hearing represented and supported by a family member. The worker’s family member made an oral submission on behalf of the worker, and the worker provided testimony in answer to questions posed by members of the appeal panel and by their representative. The worker also provided a further written submission in response to the additional information obtained by the appeal panel following the hearing.

The worker’s position is that the evidence confirms that they were exposed to noxious noise in the workplace and because of that exposure, developed noise induced hearing loss (“NIHL”) which was first noted by the worker in the late 1960s, with tinnitus developing around 1997. As such, the worker’s claim should be accepted.

The worker’s representative outlined the evidence contained in the submission provided with the Appeal of Claims Decision form on August 8, 2023. The representative noted that although the WCB ENT advisor is noted in the file as having stated there may be a significant sensorineural component to the worker’s hearing loss and that the older machines in the workplace produced noise exceeding 85 dBA, the WCB did not rely upon this information in making its decisions.

The representative noted that there is evidence of tympanosclerosis in only the worker’s left ear, and that the WCB ENT advisor stated on September 9, 2010 that this condition “…may cause hearing loss”. This is supported by the further information contained in the worker’s submissions.

The worker confirmed first noting hearing loss in 1967 and that before the surgery in 2008, they could not hear. The worker described tinnitus that began in 1997 and caused distress. As a result, the worker sought treatment from a specialist. The worker described being unable to hear and having ear cleanings every three months before the surgery. The worker confirmed that they did not have chronic ear infections as indicated by the WCB.

The worker described the various jobs they undertook from 1966 onwards, noting they used a variety of machines beginning in 1967 as they had responsibilities that included supervision and teaching other employees how to use the machines. The worker also would fill in as a machine operator when other employees were absent. The worker described the noise of other machines on the floor, which the worker did not operate but was nonetheless able to hear. The worker noted that one of the machines in particular was “tremendous loud” and that they also had to teach others how to use that machine.

The worker’s representative acknowledged that there is no evidence to confirm the noise exposure of this specific worker, but pointed to the evidence that the work environment was very noisy and that the WCB has previously accepted claims from other workers relating to noise exposure in that work environment. The representative noted in their oral submission and in the written submission that there is an inconsistency in the available evidence which raises concerns about its reliability. The available information supports a finding that the noise levels associated with the worker’s job duties, particularly in the operation of the machines they worked on primarily, exceed the Policy threshold and therefore the worker’s claim should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue on appeal is whether the claim is acceptable. To find that the claim is acceptable, the panel would have to determine that the worker’s hearing loss is, on the balance of probabilities, the result of exposure to noise in the workplace. The panel was not able to make such a finding based on the evidence before us, as outlined in the reasons that follow.

The panel noted there is evidence that the worker has bilateral hearing loss and that there was a history of workplace noise exposure, but not all hearing loss is caused by or the result of noise exposure in the workplace. Further, not all workers experience hearing loss because of such noise exposure. For a claim to be accepted, there must be not only evidence of sensorineural hearing loss, but there must also be evidence of noise exposure in the workplace above the threshold established in the Policy. A claim for NIHL is accepted by the WCB when a worker was exposed to hazardous noise at work for a minimum of two years, based upon an average of 85 decibels for 8 hours of exposure daily.

The audiological evidence here indicates “moderate sloping to severe [sensorineural hearing loss] for both ears” as assessed on June 19, 2023. There is evidence that the worker had a tympanomastoidectomy surgery on December 3, 2008 and that the worker “healed fairly well” from that surgery. An audiogram of September 29, 2009 indicated evidence of “high tone hearing loss and ringing which has been more of a problem in [their] left ear.” The treating otolaryngologist stated at that time that “…within the information that was sent to me, it is in the realm of possibility that this individual suffers from symptoms related to noise exposure.” The treating ENT physician set out in a report of June 17, 2004 that the worker had a longstanding history of hearing loss, worse in the left ear and a longstanding history of noise exposure at work with no history of recurrent ear infections and some tinnitus for years. The ENT physician found and removed wax from the right canal, noted that both tympanic membranes “were quite retracted posterior-superiorly” and that the worker had “extensive tympanosclerosis of the left tympanic membrane.” The audiogram from that examination showed “mild to severe mixed loss in the right ear and moderate to severe mixed loss in the left ear, which was partly conductive hearing loss but that the “high tone sensorineural component … certainly could be compatible with noise exposure.”

The panel considered whether there is evidence that supports a finding, on the standard of a balance of probabilities, that the worker was exposed to noise in the workplace sufficient to meet the minimum exposure threshold set out in the Policy, being an average of 85 decibels for 8 hours of exposure daily for a minimum of two years. The worker’s testimony and the information they provided to the WCB confirms their belief that they were exposed to noxious levels of noise at work. The worker described being unable to talk to someone if your machine was operating and that you had to move in close to converse. The worker described a workplace environment in which more than 100 machines were operated by individual operators at any given time. The information obtained from the WCB review of similar claims indicates that a machine of the kind the worker testified was “tremendous loud” had noise levels averaging 91.7 dBA as measured on April 28, 2003; however, the panel noted that the worker did not regularly work on this machine although they sometimes trained other workers to use it and did work on the same floor where the machine was located. The employer also provided noise level readings from November 2003 that indicated a range of readings from 78.1-81.6 dBA. The panel also noted the memo to file of August 5, 2004 which indicated that “Previous information regarding the [industry the worker was employed in and position the worker held] indicates that typically the noise levels are below 85 decibels.”

The panel noted that none of the evidence available as to the noise levels that the worker was or could have been exposed to is from the early part of the worker’s career when the worker first began to note hearing loss. As noted by the treating ENT physician, by 2004 the worker had a “longstanding” history of hearing loss, which the panel presumes was also the case in 2003 when the testing results were obtained. The available evidence as to noise levels is not directly applicable in determining the cause for the development of this worker’s hearing loss; however, it is the only evidence available for the panel to consider.

The worker’s representative submitted that historically, machines were louder than more recently. The panel accepts that this may be generally true, but it does not confirm that the worker was exposed to noise levels above the threshold set in the Policy.

In considering the evidence, on the standard of a balance of probabilities, the panel is not able to find that the worker was exposed to noise in excess of 85 decibels for 8 hours daily over a period of two years as is required to establish a successful claim for occupational noise induced hearing loss.

Further, and even if the threshold set out in the Policy could be met, based on the evidence before us and on the standard of a balance of probabilities, we are not able to establish that the worker’s hearing loss is the result of noise exposure at work. The medical evidence here indicates no more than a possibility that there is a sensorineural component to the worker’s bilateral hearing loss, but the provided opinions do not support a finding that this is more likely than not.

As such, while the panel accepts that the worker has bilateral hearing loss, we are unable to determine based on the evidence before us and on the standard of a balance of probabilities that this hearing loss is the result of their workplace exposure to noise. We therefore conclude that the claim is not acceptable, and the worker’s appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 5th day of February, 2024