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 hearing was held on June 12, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on December 7, 2022 reporting gradual hearing loss that they first noted in 2009. In the Report, the worker related their hearing loss to noise exposure in the course of their job duties with the employer. The Work History Summary – Hearing Loss submitted with the Report indicated the worker was employed with the employer from 2004 to 2022 and exposed to loud noise for 8 hours daily, with hearing protection used. The worker also noted they found their hearing started to deteriorate while working for a previous employer from June 1991 to 2004. The worker included a copy of a November 14, 2022 audiogram with the Hearing Loss Report, which outlined findings of mild to moderate sensorineural hearing loss bilaterally, with scar tissue noted on the worker’s right ear drum and contained a recommendation for binaural hearing aids.

The worker confirmed to the WCB on December 20, 2022 that they initially noticed their hearing difficulties approximately in 2009, and currently also experienced intermittent tinnitus. The worker confirmed working for the employer for approximately 18 years before retiring in April 2022. The worker described the machinery in their workplace and confirmed they always wore hearing protection.

The employer submitted an Employer Hearing Loss Report to the WCB on December 23, 2022, setting out that the worker began working for the employer on January 1, 2004 and retired in April 2022, and noting the worker’s employment with a previous employer from 1991 to the end of 2003 was a possible source for their hearing loss. The employer outlined the worker’s job duties and estimated the worker was exposed to loud noise for 4 hours per day, with hearing protection supplied to the worker. The employer also provided copies of hearing testing results for the worker conducted in 1999, 2000 and 2006.

The previous employer provided an Employer Hearing Loss Report to the WCB on February 6, 2023, indicating the worker was employed from June 3, 1991 to December 25, 2003 and did not report any hearing difficulties in that period. The previous employer noted the worker’s job duties, and that the worker would have only been exposed to noise when working in certain areas. The previous employer further noted implementation of a hearing protection program in 1987, and that the worker was supplied with hearing protection. The previous employer also provided noise level testing results from their premises in 2004.

In a memorandum to file dated February 9, 2023, the WCB adjudicator reviewed the noise level information on file with the WCB for the employer and the noise level testing information provided by the worker’s previous employer. The adjudicator noted the worker had been exposed to noxious noise that met the WCB’s criteria for noise-induced hearing loss (“NIHL”) while working for the previous employer. The adjudicator further noted the average noise levels reported for the employer was below the WCB’s criteria.

On March 14, 2023, a WCB audiological specialist reviewed the worker’s file and provided an opinion noting that the worker’s exposure to occupational noise ended in 2004 and their reported hearing difficulties began in 2009. The specialist stated the November 14, 2022 audiogram did not have the typical configuration for NIHL in the worker’s left ear and indicated “…typical patterns of presbycusis (i.e. age-related loss)” in the worker’s right ear. The specialist acknowledged that signs of NIHL may be obscured by presbycusis and therefore, made further calculations to determine if the worker had an “…excess loss of hearing in the 3-6k Hz range (frequencies most affected by noise exposure) in comparison to other frequencies…” to differentiate any NIHL combined with presbycusis from presbycusis alone. The specialist concluded there was no excess hearing loss in either of the worker’s ears and as such, the evidence did not indicate the worker had NIHL in either ear.

On March 21, 2023, the WCB advised the worker their claim was not acceptable.

On April 11, 2023, the worker requested Review Office reconsider the WCB’s decision, noting their history of noise exposure at work. Review Office determined on May 19, 2023 that the claim was not acceptable, relying upon the opinion of the WCB audiological specialist that the testing results did not indicate noise-induced hearing loss in either ear.

The worker filed an appeal with the Appeal Commission on April 16, 2024 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and provided to the interested parties for comment, the appeal panel met on September 4, 2024 to further discuss the case and render its decision on the 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” in s 1(1) as follows:

(a) a chance event occasioned by a physical or natural cause, 

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

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event.

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 on their own behalf and provided an oral submission to the panel, as well as testimony through their own comments and in response to the questions posed to them by members of the appeal panel.

The worker’s position is that they were exposed to levels of noise in the workplace above the WCB threshold for noise induced hearing loss claims, and that as a result they developed noise induced hearing loss. For this reason, the claim should be accepted.

The worker described to the panel that prior to 1990, they did not use hearing protection in the workplace as it was not mandatory at that time and worked in an area with multiple noisy machines. In their later employment, the worker described being intermittently exposed to machinery noise as their job responsibilities required them to enter such areas to deliver items. The worker confirmed that they retired in 2022 and first noted hearing loss approximately 15 years earlier, when they had difficulty understanding people who spoke in a high or low pitch. The worker confirmed they had hearing testing in the workplace and were never referred for further testing as a result.

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 the evidence of the worker’s bilateral hearing loss and their history of workplace noise exposure. As noted in the Policy, however, 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 may be accepted only if 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 panel accepts the WCB’s initial determination based upon the information available on file that the worker was exposed to noxious noise levels above the Policy threshold while in the employment of the previous employer, which ceased in late 2003.

The panel further noted the first evidence confirming the worker’s hearing loss is based on testing from November 14, 2022 while their occupational noise exposure ended when they left their job with the previous employer. While the worker indicated they continued to have exposure to noise in their subsequent employment, the evidence also indicates the worker’s consistent use of hearing protection in that employment and that their exposure in that environment was intermittent, rather than constant. As such, the panel is satisfied that the worker’s exposure to noxious levels of workplace noise ceased in 2003.

The panel further reviewed and considered the evidence from the audiological assessment of November 14, 2022, as well as the subsequent reviews of that assessment by the WCB audiological specialist and the WCB consulting Ear, Nose and Throat (“ENT”) specialist. We noted that although the treating audiologist commented on the worker’s history of noise exposure, they did not specifically indicate that the worker’s hearing loss was the result of that exposure. There was no indication of conductive hearing loss, and the audiologist confirmed the worker’s hearing loss to be sensorineural loss, with bilateral tinnitus. The WCB audiological consultant indicated in their report of March 14, 2023 that the testing results are not in keeping with established patterns of NIHL, and in the right ear, are more in keeping with age-related hearing loss, or presbycusis. As a result the audiological consultant further reviewed the testing results to determine if there was evidence of an excess loss of hearing, known as an audiometric bulge, that could indicate noise induced hearing loss, but found there was no excess loss indicated in either of the worker’s ears and therefore concluded “…there is insufficient audiometric evidence to support a material component of NIHL in either ear.” The panel also considered that the WCB ENT consultant confirmed these findings and reached the same conclusion in their report of July 10, 2024 prepared in response to the panel’s request.

In making our determination on the issue of claim acceptability the panel must apply the standard of a balance of probabilities, which means that the evidence must indicate, more likely than not, that the claim is acceptable for the panel to make such a determination. Here, the evidence in support of the worker’s claim does not meet that standard.

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. We therefore conclude that the claim is not acceptable, and the worker’s appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of September, 2024