Decision #73/24 - Type: Workers Compensation
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 May 27, 2024 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 April 14, 2014 reporting a gradual hearing loss they first became aware of “a few years back” which they related to their employment. The worker noted their hearing loss was reported to their employer after their last hearing test. Further, the worker indicated on the Report hearing protection was provided and they had worn it “most of the time”. Some non-occupational exposure to noxious noise was noted including snowmobiling as a teenager, farm machinery operation, home power tool use and less than occasional right-handed firearm use. The worker also noted their hearing was checked by the employer and they also underwent testing with their previous employer. On the Work History Summary also provided, the worker noted up to 8 hours or more exposure to loud noise with their previous employer where they had worked from 1992 to June 2008, also indicating by the time they left that employer, they had noticed deterioration in their hearing, despite hearing protection being worn. With their current employer, with whom they had been employed since 2008, the worker noted 4 to 8 hours of noise exposure while wearing hearing protection and described their hearing as “not so good anymore”.
The employer submitted an Employer Hearing Loss Report on May 30, 2014. The employer noted the worker possibly related their hearing loss to their employment with the employer and had worked with a previous employer that may have contributed to the worker’s hearing loss. The employer indicated the worker’s job duties involved using various types of machinery or equipment and they were exposed to intermittent and variable loud noise. It was noted exposure to noise would depend on work assignments and the area worked in had high noise levels possible intermittently. The employer indicated noise protection in the form of ear buds and ear muffs were provided when the worker was hired.
On June 3, 2014, the WCB spoke with the worker to discuss their claim. The worker confirmed the information on their Report, noting while they felt their work with their previous employer was in the noisiest environment and hearing protection was not always worn. Hearing tests were done while they were employed. With their current employer, they noted hearing protection was always available and they also had hearing tests done. The worker further confirmed the non-occupational exposure noted on their Report and confirmed they were a right-handed firearm user but wore hearing protection. The WCB advised the worker of the process to adjudicate hearing loss claims and advised further investigation was required.
The WCB received copies of hearing test results from the employer on June 11, 2014 for November 27, 2008 and January 20, 2014, with the 2008 testing indicating a moderate bilateral hearing loss and the 2014 testing result indicating a significant shift in the worker’s hearing. On June 25, 2014, the WCB spoke with the worker’s previous employer who confirmed the worker was employed with them and would have had regular hearing testing done. The previous employer advised the WCB the worker would have been exposed to noise from machinery and equipment and was part of their safety committee for several years. On July 8, 2014, the previous employer provided the WCB with hearing test results for the worker from 1999 to 2006, which noted the worker’s hearing was normal bilaterally.
The WCB advised the worker on August 19, 2014 their claim was not acceptable. The WCB noted they confirmed their employment with their previous employer however, the hearing tests provided did not support the worker had hearing loss while employed. With respect to the employer, the WCB was unable to confirm noise exposure at or above 85 decibels for a sufficient time period to establish a noise-induced hearing loss claim, and noted the worker reported wearing hearing protection while performing their job duties with the employer. On December 30, 2014, the worker requested reconsideration of the WCB’s decision indicating their belief after working in their occupation for over 30 years, they were suffering from hearing loss. In addition, the worker noted their hearing started to deteriorate early, which they believed was not related to age. Review Office determined on February 24, 2015, the worker’s claim was not acceptable. Review Office found the last hearing testing done with the worker’s previous employer was in 2006 and indicated normal hearing bilaterally, with the initial hearing testing done by the employer in 2008 indicating moderate hearing loss bilaterally. Review Office found the file evidence did not support a change in the worker’s duties or exposure to noise between the last testing done by the previous employer in 2006 and when the worker left employment with the previous employer to work for the employer in June 2008. As such, Review Office was unable to establish the worker was exposed to noxious noise in the approximately less than two years between the last hearing testing in 2006 and when the worker started employment with the employer to cause noise-induced hearing loss.
On September 8, 2015, the worker submitted further information to Review Office regarding an incident that occurred sometime between 2006 and 2008 when they were working with their lead hand and a pipe blew up right beside them, while they were in a small room. In addition, the worker provided information regarding the Noise Reduction Rating (NRR) for ear plugs, which indicated the NRR is reduced by 50% based on testing. On October 26, 2015, Review Office spoke with the worker regarding the incident referred to in their submission. Review Office asked if the incident was reported to the employer, with the worker advising that despite working with their supervisor and being on the safety committee at the time, the incident was not reported. Review Office asked the worker if there was a noticeable change in their hearing after the incident, which the worker was unable to confirm. Review Office again determined on October 27, 2015, the worker’s claim was not acceptable. Review Office found the incident reported by the worker was not reported to the employer by either the worker or the supervisor who was also working on that date and found that relating the noticeable change in the worker’s hearing between 2006 and 2008 to this incident would be speculative.
The worker’s representative filed an appeal with the Appeal Commission on December 4, 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 made pursuant to the Act and the policies established by the Workers Compensation Board of Directors. The legislative provisions in effect at the time of the 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 Section 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 employer in this instance is the Government of Canada and therefore, the Government Employees Compensation Act (the “GECA”) is also applicable. Section 4(1) of the GECA mirrors the Act and states that compensation shall be paid to an employee who is caused personal injury by an accident arising out of and in the course of his employment.
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, and as such, the Policy applies in this case. The Policy states, in part, as follows:
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 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 represented at the hearing by a worker advisor. The worker relied on submissions provided to the panel in advance of the hearing, relied on oral submissions made by their advisor at the hearing and answered questions posed by their advisor and the panel members.
The worker’s position is that the evidence supports that the worker’s employment with the employer exposed them to noxious noise sufficient to cause noise induced hearing loss (“NIHL”) within the initial five to six months that the worker started working for the employer. The worker states that they did not use hearing protection during their initial project with the employer.
The worker relies on the notable change in the audiograms between 2006 and 2008 and states that this is supportive of further NIHL from his employment.
The worker’s evidence is they worked on one specific project for their first two years with the employer. That project involved using angle grinders, which the worker submits produce noise levels of approximately 100 decibels. The worker's evidence is that they did not wear hearing protection while working on this project. The worker states that they worked full-time for two years, which was sufficient to cause NIHL and therefore their claim ought to 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 able to make such a finding on the basis of the evidence before us, and for the reasons that follow.
The worker indicated that their first work project with the employer was decommissioning the warm cells using a grinder in an enclosed space. The worker’s evidence is that they did not use hearing protection. There is evidence before the panel that the worker did not always wear hearing protection and received counselling regarding the use of hearing protection. The panel accepts the evidence that the worker was inconsistent in wearing hearing protection. The panel also accepts the evidence that the employer’s Radiological Work Assessment Form did not indicate that ear protection was required for this initial project, despite the form describing the job to involve “cutting of cell liner” and “use of a grinder."
The panel heard evidence from the worker of the noise levels, apart from the work decommissioning the warm cells with the use of the grinder, and accepts that there were other jobs that the worker performed which involved loud noises, including sledgehammering of dents in steel, air arc gouging and welding, air compressors and industrial fans, etc.
The panel also heard evidence that the worker had to do daily inspections on machinery and had to remove any hearing protection to listen to the machinery with stethoscopes and perform diagnostic testing. The Sound Pressure Level Survey Report before the panel demonstrates that the workplace had average noise levels significantly above 85 decibels and the maximum noise levels in the Penthouse area of the workplace was 119.5 decibels. A noise level testing report also shows another area of the workplace, the HCF Filter Drying Room, having a maximum noise level of 141.7 decibels.
The panel has reviewed the audiometric testing records and accepts there was a significant shift in the worker’s hearing between testing done in 2006 (previous employer) and in 2008 (with employer of record). The 2008 hearing test with the employer of record confirms moderate bilateral hearing loss after completing his first project with the employer on record. Prior to the 2008 hearing test, the worker’s hearing test results had been characterized as normal bilaterally.
The panel is satisfied that the worker's first project wherein the use of hearing protection was not listed as “required” and wherein the worker used a grinder without hearing protection, was sufficient to cause NIHL. The panel is also satisfied that the worker’s regular inspection duties placed the worker in areas with significant noxious noise and that the worker would remove their hearing protection to complete their inspection duties for approximately five minutes or more which was sufficient to cause NIHL, given the high levels of noise in the HCF Filter Drying Room or the Penthouse area as indicated in the Sound Pressure Level Survey Report provided by the employer of record. The panel therefore finds that the worker meets the criteria of NIHL as they were exposed to hazardous noise at work for a minimum of two years.
The panel accepts that the worker has bilateral hearing loss and have determined on the basis of 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 acceptable, and the worker’s appeal is granted.
Panel Members
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of July, 2024