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 teleconference hearing was held on December 11, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker submitted a Worker Hearing Loss Report to the WCB on January 14, 2020 reporting a gradual hearing loss they related to their 45 years of employment with the employer. On the Work History Summary also submitted on January 14, 2020, the worker noted they were exposed to air tools and diesel machines for 6 to 8 hours per day and had been since they began their employment in April 1974.

On February 11, 2020, the WCB received the Employer Hearing Loss Report from the employer. The employer noted the worker had not reported any hearing difficulties and had not related their hearing difficulties to their employment. The employer noted the worker had started working for them on April 26, 1974 and had held two positions with them. It was noted on the Report, both positions involved the worker being in an office with air tools being used in the background. The employer also noted the worker was periodically exposed to noise when they left the office to speak with other workers regarding orders.

The WCB contacted the worker on March 4, 2020 to gather further information and discuss their claim. The worker confirmed they had first noticed a gradual loss of their hearing approximately 10 to 12 years ago, with their right ear being worse than their left but did not report any tinnitus. The worker noted their job duties did not involve them using tools but they were exposed to air/impact tools and diesel engines when they left their office and described being in and out of that environment for 2 hours a day. The worker reported their non-occupational noise exposure as occasional home power tool operation and being a right handed hunter/shooter. The WCB advised the worker of the threshold for acceptance of noise-induced hearing loss claims of exposure to noise levels at or above 85 decibels for a minimum of 2 years for 8 hours a day and noted further information was needed for their claim.

In a discussion with the WCB on April 2, 2020, the employer confirmed the worker had been in the same position for years and noted their exposure to noise was 30 to 60 minutes per day. The employer noted the worker's office was on the other side of a wall from the area where air tools and diesel engines were used and normal conversation can take place in the office. Copies of hearing testing conducted for the worker on October 11, 2016 and June 22, 2018 were received by the WCB on April 2, 2020. On the same date, the employer provided the WCB with copies of their internal hearing reports for the worker also for October 11, 2016 and June 22, 2018. On April 9, 2020, the worker's WCB claim adjudicator placed a note to the worker's file that noise levels for the worker's job site could not be confirmed and a general industry noise level of 80 decibels would be used. The WCB advised the worker on April 14, 2020 their claim was not acceptable. The WCB noted, based on industry noise levels, the worker was exposed to less than 85 decibels and did not meet the criteria for exposure to noxious noise.

On August 20, 2021, the worker contacted the WCB to advise they would be submitting further medical information and requested the information be reviewed and consideration be given to accepting their claim. The WCB received a copy of an August 13, 2021 audiogram on August 23, 2021. The treating audiologist noted the worker's reporting of difficulty hearing and over 40 years of exposure to noise at work. The audiologist provided the testing indicated the worker had "…moderately-severe high frequency sensorineural hearing loss bilaterally" and recommended hearing aids for the worker. The WCB advised the worker on August 26, 2021, the new information had been reviewed but as it could not be established they had been exposed to noxious noise to meet the criteria for noise-induced hearing loss, their claim was not acceptable.

The worker requested reconsideration of the WCB's decision to Review Office on June 23, 2022. In their submission, the worker noted they had worked for the employer for 48 years and had been exposed to loud noises on a daily basis. Further, the worker noted the noise testing conducted had indicated a steady decline in their hearing and as such, the worker believed their claim should be accepted. Review Office determined on August 24, 2022, the worker's claim was not acceptable. Review Office noted the audiograms submitted to the worker's file indicated the worker's hearing loss was not symmetrical and did not follow the typical pattern of noise-induced hearing loss, noting occupational hearing loss is usually symmetrical and follows a specific pattern. It was further noted the audiogram did indicate some aspect of noise-induced hearing loss in the worker's right ear, which Review Office found was explained by the worker being a right handed shooter. Review Office further found the evidence on file did not support the worker was exposed to noise levels over 85 decibels and did not meet the criteria for noise-induced hearing loss.

The worker filed an appeal with the Appeal Commission on July 31, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. The Appeal Commission then sought an opinion of a WCB ENT specialist respecting the claim for noise-induced hearing loss. On April 16, 2024, 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 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” 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; (« accident »)

The WCB's Board of Directors has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the "NIHL 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 was self-represented. The worker made an oral presentation at the hearing, and responded to questions from the panel.

The worker's position was that they were exposed to hazardous noise at work and did not wear hearing protection in the early years of employment.

The worker's position is that their claim for noise-induced hearing loss ("NIHL") should be accepted.

Employer's Position

The employer was represented by an agent, however due to technical difficulties was unable to participate. The employer's agent confirmed via e-mail that they were comfortable with the hearing proceeding without them participating and that they support the worker in this appeal.

Analysis

The issue on appeal is whether or not the claim is acceptable. For the panel to find that the claim is acceptable, it would have to determine that the worker’s hearing loss is the result of exposure to noxious noise in the workplace. The panel was able to make such a finding for the reasons that follow.

The worker provided evidence regarding their workspace and the equipment used in the workspace. The worker states that they were in the shop approximately 3 to 3.5 hours per day, and for the remainder of their 8 hour shift would be in the in their work area which was separated from the shop by a cinder block wall, which did not go all the way to the ceiling and which had a large window/hole cut out of it to allow workers to speak to each other. The panel accepts that the worker, over their many years of employment, was exposed to hazardous workplace noise, due to their work environment and proximity to other employees using equipment in the workspace. The panel also accepts the evidence that the worker did not wear hearing protection, as it was not required or advised to do so at the time.

The panel is concerned with the reliance by the WCB on general industry noise levels from Work Safe B.C., rather than workplace specific testing, in this instance. The information from Work Safe B.C. on industry noise levels state that the noise levels workers would be exposed to would be 80 db. The panel places little weight on this document as it lacks specificities to the worker's workplace. The panel relies instead on the worker’s evidence. The worker's evidence was that eventually their workplace obtained decibel meters in the workplace and that the light would flash and these would register at approximately 90 to 95 decibels when air chiseling was taking place.

The WCB claim notes indicate that the adjudicator advised the worker that they had access to noise levels for the worker’s job. The panel is not aware what details were provided to the worker in that regard. The Review Office decision does however reference that the information regarding the noise levels was supplied through Work Safe B.C. documentation. There are no noise levels available for the worker’s specific workplace.

The NIHL Policy clarifies that hearing loss is caused not only by exposure to noise at work, and that in order for a claim for NIHL to be accepted by the WCB, it must be established that a worker was exposed to hazardous noise at work above the specified threshold of no less than two years exposure, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis. For noise levels above 85 decibels, every increase of 3 decibels reduces the required exposure time by one-half. As an example, this means that the average noise level must be at least 88 dBA for 4 hours of daily exposure. The panel places significant weight on the testimony of the worker that they were required to be in the workshop where louder noise levels were present and that they were not required to and did not, wear hearing protection for the majority of their career.

The panel places weight on the Healthcare Service Request and opinion of the WCB ENT specialist which provides that the 2016, 2018 and 2020 hearing assessments did not include testing of hearing at 8000 Hz frequency which limits full identification of a potential audiometric notch at that time. The ENT specialist noted that the 2021 and 2023 audiogram testing included the 8000 Hz frequency and that these tests showed bilateral hearing loss, which was worse at higher frequencies. The ENT specialist also commented on presbycusis (age-related hearing loss) and its ability to "wash-out" evidence of NIHL and obscure the typical audiometric notching pattern of NIHL. The opinion of the WCB ENT specialist was that, should there be sufficient evidence of workplace noxious noise exposure, it was reasonable to conclude the hearing assessments of 2016 onward were consistent with a component of NIHL.

Based on the evidence of noxious noise exposure before the panel and the medical opinion of the ENT specialist, the panel is satisfied on a balance of probabilities that the worker’s hearing loss is the result of exposure to noise in the workplace.

The worker’s claim is acceptable, and the appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of June, 2024