Decision #48/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to a hearing aid for the left ear. A file review was held on March 19, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a hearing aid for the left ear.

Decision

The worker is entitled to a hearing aid for the left ear.

Background

The worker has an accepted WCB claim for noise-induced hearing loss in their right ear and was provided with a hearing aid for that ear after review by a WCB Ear, Nose and Throat (ENT) specialist of a March 31, 2008, audiologist report, which noted the worker had "A slight asymmetrical loss…right ear, greater than left ear" and who recommended the aid. It was noted noise-induced hearing loss was first indicated in the worker's right ear based on an audiogram from 1977 as provided by the employer. The WCB provided the worker with a formal decision letter on April 11, 2008.

On April 4, 2023, the worker's treating audiologist submitted a March 27, 2023 audiogram for the worker and requested replacement hearing aids for the worker as the worker's hearing had declined. It was noted the worker had bilateral hearing aids and both required replacement. The WCB advised the worker on April 6, 2023, they were entitled to coverage to replace the one hearing aid for the right ear, as that had been accepted previously by the WCB. In a discussion with the WCB on April 18, 2023, the WCB confirmed to the worker they had only been approved for one hearing aid in 2008 as the hearing tests at that time had determined they only required one hearing aid for their right ear. The worker advised their hearing had declined since that time and noted they retired from the employer in 2008. The WCB advised the worker any decrease in their hearing after their retirement would not be related to their employment.

The worker's representative requested reconsideration of the WCB's decision to Review Office on June 26, 2023. In their submission, the representative indicated the worker's hearing loss in their left ear was "…due to the combined effect between the worker's occupational noise exposure and ageing and therefore the worker's request for a left hearing aid is the WCB's responsibility." At the request of Review Office, on September 23, 2023, a WCB audiology consultant reviewed the worker's file and the new audiogram provided by the worker. The consultant noted agreement with the March 31, 2008 audiologist report that the worker required a hearing aid for their right ear and that an aid would not be required for their left ear as there was minimal loss present at that time. In addition, the consultant opined that any changes in the worker's hearing after their retirement in 2008 would not be attributable to earlier occupational noise exposure. A copy of the WCB consultant’s opinion was provided to all parties on September 29, 2023 and the worker's representative submitted a response to Review Office on October 10, 2023.

On October 20, 2023, Review Office found the worker was not entitled to a left hearing aid. Review Office accepted and agreed with the opinion of the WCB's audiology consultant and found the worker's exposure to noxious noise ended with their retirement in 2008. As such, a relationship between the worker's deterioration in hearing in their left ear and their employment could not be established.

The worker's representative filed an appeal with the Appeal Commission on December 21, 2023 and a file review was arranged.

Reasons

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations made under the Act, and 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.

Subsection 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.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the “Policy”), outlines the WCB’s approach to claims arising from long-term exposure to occupational noise causing hearing loss. The Policy states, in part, that:

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 the 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.

7. When the WCB accepts a claim for noise-induced hearing loss and a specialist recommends the use of a hearing aid(s), a worker shall be entitled to a suitable hearing aid(s) of a reasonable cost by the WCB under Policy 44.120 or 44.120.01 Medical Aid.

Worker’s Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing.

The worker’s position was that, on a balance of probabilities, their requirement for a hearing aid for their left ear is a result of his exposure to workplace noise. The worker submitted that they were exposed to noxious noise from 1972 to 1978 in their position as a mill operator and did not wear hearing protection. From 1978 until they retired from the company on January 1, 2008, the worker continued to be exposed to noxious noise in their position as a crane operator.

The worker noted that noise survey information regarding the crane operator position indicated that the maximum sound level of the day shift was 104.6 dB while the maximum sound level for the night shift was 113.7 dB. It was further noted in the report that when exposed to 100 dB of noise, hearing damage can occur within 15 minutes. When exposed to 112 dB or more, hearing damage can occur within a fraction of a second.

Although a hearing protection program was implemented by the employer in 1988, the worker indicated that they did not wear hearing protection consistently, in part because the hearing protection prevented the worker from being able to communicate with co-workers on the ground. The worker therefore continued to be exposed to noxious noise up until retirement in 2008.

The worker further noted that, prior to retirement on January 1, 2008, the worker’s hearing loss specialist had recommended a trial period with “binaural amplification” based on the November 9, 2007 hearing test results. A full audiological assessment was subsequently performed. The audiologist’s report noted a slight asymmetrical loss with the right ear being greater than the left and recommended a hearing aid for the right ear. The audiologist’s report and recommendation were referred to the WCB’s Ear, Nose and Throat (ENT) consultant who reviewed the worker’s audiograms and confirmed that the worker had NIHL and concurred with the recommendation for a right hearing aid.

The worker’s hearing in the left ear continued to deteriorate after retirement. The worker attributes the ongoing loss of hearing in the left ear at least in part to the exposure to noxious noise in the workplace. The worker relied on studies that concluded that the effect of noise is cumulative and can increase susceptibility and accelerate hearing deterioration in later life, even after the exposure has ceased. Consequently, it was the worker’s position that changes to their hearing that occurred after the employment terminated can be attributed to earlier occupational exposure. As such, the claim should be accepted.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel on this appeal is whether or not the worker is entitled to a hearing aid for the left ear. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires a hearing aid for their left ear as a result of his exposure to noxious workplace noise. The panel is able to make that finding for the reasons that follow.

The worker has an accepted claim for NIHL based on his exposure to noxious levels of noise in the workplace. In 2007, the worker saw an audiologist who provided the following summary of hearing tests conducted at the time:

Results indicate a moderate high frequency sensorineural hearing loss in Right and a mild high frequency sensorineural hearing loss (in Left)…

The report further attributed the hearing loss to noise exposure at work and recommended a trial period with binaural amplification.

The recommendation for a hearing aid was considered by a WCB ENT consultant who reviewed the worker’s audiograms. The WCB ENT consultant confirmed that the worker had sustained hearing loss, the first signs of which occurred in 1977. The WCB ENT also agreed with the recommendation of the worker’s audiologist that the worker would benefit from a right hearing aid at the time.

The panel is satisfied that the worker was exposed to bilateral noxious noise levels in the workplace prior to retirement. At the time of the worker’s initial claim for hearing loss, the file information indicates no significant difference between the occupational noise exposure to the worker’s left ear and the worker’s right ear, nor is there any suggestion that one ear was subject to greater exposure to noxious workplace noise than the other. Further, the information on file supports that the hearing loss as identified in the audiograms in 2007 and 2008 had a significant or material sensorineural component which was work related.

Although the worker had NIHL in the left ear at the time of the 2008 audiogram, it was not severe enough to require the use of a hearing aid. By 2023, however, the combined effect of the work-related hearing loss and non-compensable deterioration in the worker’s hearing caused the worker’s audiologist to recommend the use of a hearing aid for the left ear, in addition to the right ear.

The panel is further satisfied that but for the workplace exposure, the worker would not have required the use of a hearing aid in the left ear. The panel notes that paragraph 7 of the Policy contains mandatory language and requires the WCB to cover the reasonable costs of a hearing aid where the following criteria are met: the claim is for NIHL and a specialist has recommended the use of a hearing aid. In this case, both criteria are met.

Consequently, in light of the foregoing and given that the WCB has accepted responsibility for a hearing aid for the worker’s right ear based at least in part on work-related NIHL, the panel is satisfied that a hearing aid is similarly required, and should be provided, for the worker’s left ear.

The panel therefore finds that, on a balance of probabilities, the worker requires a hearing aid for the left ear as a result of exposure to workplace noise. The worker is therefore entitled to a hearing aid for their left ear.

The worker’s appeal is allowed.

Panel Members

K. Wittman, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of May, 2024

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