Decision #100/24 - Type: Workers Compensation
Preamble
The worker appealed the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on October 31, 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 September 21, 2023, reporting a sudden hearing loss that occurred in approximately May 2022. In their report, the worker outlined their employment history, including employment with the employer since May 1974 and retirement in May 2004, and related their hearing loss to noise exposure in the course of their job duties during that employment. The worker also submitted an audiogram dated September 20, 2023.
In discussion with the WCB on October 4, 2023, the worker advised that in May 2022, they began to experience their hearing “…going in and out in the right ear”, off and on for about two weeks. The worker sought treatment at a hearing clinic and learned their right ear hearing was gone, likely due to aging. A CT scan indicated “black spots” on their brain which were described as the result of mini strokes, and confirmed the hearing loss was due to age-related deterioration. A later MRI study confirmed the spots on the worker’s brain, and at that time, the worker was advised the hearing loss could be due to their age or occupation. The worker advised they had perfect hearing when they retired in 2004 and that their treating specialist suggested to them that the current hearing loss could be related to a stroke the worker experienced in the 1990s and advised the worker to file a claim with the WCB.
The employer provided an Employer Hearing Loss Report to the WCB on October 16, 2023, noting the worker’s job required that they attend firearms training, and listing the dates the worker attended, and noting that since approximately 1987, hearing protection was mandatory during the training.
On November 17, 2023, the WCB received a copy of the June 27, 2022 audiology report which indicated that in May 2022, the worker noticed their right ear hearing was decreased and self-treated with ear wax removal, and then saw a family physician who advised the worker there was no wax present and referred the worker to the physician. The audiologist noted the worker’s audiogram indicated mild to moderate sensorineural hearing loss in the left ear and moderately severe to severe sensorineural hearing loss in the right. In a report from the treating Ear, Nose and Throat (“ENT”) physician of July 6, 2023, the physician noted the worker reported slight improvement from the previous appointment and asked whether they should make a WCB claim. The ENT physician recorded that the tympanic membranes and external auditory canals were normal bilaterally, and the audiogram indicated the worker had “…left mild sloping sensorineural hearing loss and a right moderate up sloping to mild down sloping to severe sensorineural hearing loss.” The physician noted that compared to testing from the previous year, the worker’s right mid tones had improved. They summarized that the worker had some improvement since experiencing a sudden sensorineural hearing loss and should consider a hearing aid for their right ear. The physician further noted it would be unlikely the WCB would cover the cost of a hearing aid as their sensorineural hearing loss was sudden, unless the worker had past testing that indicated noise-induced hearing loss (“NIHL”).
A further report from the ENT physician dated November 9, 2023 noted they first saw the worker on January 11, 2023. The physician reported that the worker had sudden right sensorineural hearing loss in the summer of 2022 and after being assessed by an audiologist, was diagnosed with severe right-sided sensorineural hearing loss. Diagnostic imaging did not indicate any abnormalities except for evidence of a remote ischemic stroke, and the physician noted the worker did not have a history of head trauma or childhood hearing loss, taking medications that may have affected their hearing, or recreational noise exposure, but did note the worker had a “…significant history of occupational noise exposure…”.
A WCB audiologist reviewed the worker’s file on January 17, 2024, noting the audiograms from 2022 and 2023 indicated a notch pattern of hearing loss for the worker’s left ear, in keeping with “probable NIHL in the left ear, in the context of confirmed noise exposure” and recommended coverage for a hearing aid for that ear. The audiologist concluded that the right hearing loss is not attributable to occupational noise exposure, as such exposure does not result in sudden sensorineural hearing loss. The audiologist calculated a permanent partial impairment rating of 1% based on the worker’s hearing loss.
On January 18, 2024, the WCB advised the worker that their claim was accepted for left ear hearing loss and that the WCB would provide coverage for a left hearing aid only. The WCB provided a permanent partial impairment award at the same time.
On February 7, 2024, the worker requested Review Office reconsider the WCB’s decision submitting the WCB should also approve a right hearing aid. On February 12, 2024, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation, noting there was no confirmation of the worker’s exposure to noise on file and that the worker’s hearing loss was not apparent until 2022 but they retired from employment in 2004. On February 15, 2024, the WCB requested further information from the employer, including copies of any audiograms they may have. The employer provided a copy of an audiogram dated July 27, 1999 on February 23, 2024. On March 6, 2024, the WCB advised the worker that the earlier decision was incorrect and that their claim was not acceptable, as the evidence did not indicate exposure to noise levels as required in the WCB’s policy.
The worker again requested Review Office reconsider the WCB’s decision on March 22, 2024. The worker advised that their treating audiologist stated that the July 27, 1999 audiogram indicated their “…left ear was failing” and the worker noted their belief their claim should be acceptable as it had been previously accepted by the WCB. On May 15, 2024, the employer provided Review Office with a submission in support of the WCB’s decision, and the worker provided a response on June 18, 2024. Review Office determined on June 19, 2024 that the worker’s claim was not acceptable.
The worker filed an appeal with the Appeal Commission on August 13, 2024 and a hearing was arranged.
Reasons
Applicable Legislation and Policy
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 in support of their appeal. The worker also provided testimony through answers to questions posed by members of the appeal panel.
The worker outlined their belief that their bilateral hearing loss is the result of workplace exposure to noise and described the nature of the noise they were exposed to over the course of their career with the employer. The worker submitted that the claim should therefore be accepted. In their submission, the worker also presented detailed information outlining their concerns with the adjudication and administration of their claim by the WCB, described the steps they have taken to date to address those concerns and expressed their frustration with that process.
The worker described in their submission and testimony how they came to arrange hearing testing in July 1999 at a time when the employer did not provide such testing. The worker noted concern with the comment in the testing documentation provided to the WCB that indicated normal findings in 1999, but did not dispute the testing results themselves. The worker also noted that after 1994, they did not return to the job duties that exposed them to some noxious noise, and that from 1999, they worked in an office setting without daily noise exposure until their retirement in 2004. The worker further explained that their description of perfect hearing at the time of retirement means sufficient for their purposes but does not necessarily mean that they had no hearing loss and noted the 1999 hearing test results indicated some left ear hearing loss.
Employer’s Position
The employer was represented by its workers compensation coordinator who provided an oral submission in the hearing.
The employer’s position is that the claim should not be accepted as the evidence does not support a conclusion that the worker’s hearing loss is the result of workplace noise exposure as required by the Policy.
The employer representative relied upon the worker’s statements to the WCB that at the time of their retirement they had “perfect hearing” and upon the WCB audiologist’s conclusion that hearing loss due to noise exposure does not progress after such exposure ends. The employer representative also noted that for firearms training, the worker was required to use hearing protection from 1987 onwards and had only attended such training once before 1987, according to the information provided by the employer.
The employer representative also submitted the panel should consider prior decisions of the Appeal Commission with similar fact scenarios and take a consistent approach in adjudicating this appeal.
Analysis
The question in this appeal is whether the worker’s claim of noise induced hearing loss is acceptable. For the worker’s appeal to succeed, the panel would have to determine that their hearing loss is 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 exposure to some noise in the workplace. 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 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.
In this case, there is a lack of evidence that the worker was exposed to noxious levels of noise above the threshold set in the Policy while employed by the employer, which employment ended in 2004. The worker described occasional exposure to noise levels in the course of their job duties that may possibly have exceeded the Policy threshold as described above, but the evidence does not confirm that any such exposures, if above an average of 85 decibels, were of sufficient duration and daily frequency. Further, the worker acknowledged that any noise exposure they had in that employment ended in 1999 or earlier when they took on different job duties. We find that the evidence before us does not indicate that the worker was exposed to noise levels about the threshold established in the Policy during their employment.
The evidence before the panel indicates that the worker’s sudden right ear hearing loss in May 2022 cannot be causally related to noise exposure in the workplace, given the nature of that hearing loss as described in the opinion of the WCB audiologist of January 27, 2024. The panel accepts and relies upon this opinion.
The evidence also indicates that the worker’s mild left ear hearing loss was not confirmed until June 2022, some 18 years after the worker’s retirement and at least 23 years after any potential exposure to noxious noise in their workplace. The WCB audiologist, in their January 27, 2024 report outlined that noise induced hearing loss does not begin or progress after noise exposure ends. We accept and rely upon this opinion. While there is evidence of some deterioration in the worker’s left ear hearing as early as July 1999, the worker also testified that they did not identify their left ear hearing as problematic until the sudden loss of hearing in their right ear in 2022, and further confirmed that by 1999 they were no longer working in a noisy environment such that any subsequent deterioration could not be related to workplace exposure. The panel noted that both the treating ENT physician and the WCB consulting audiologist are of the view that the worker has noise induced hearing loss in their left ear. We accept that this is the case but cannot relate that hearing loss to occupational exposure to noxious noise levels for the reasons outlined above.
Based on the evidence before the panel, and on the standard of a balance of probabilities, we cannot 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 7th day of November, 2024