Decision #103/24 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A file review was held on February 28, 2024 to consider the worker's appeal. At that review, the appeal panel requested a hearing be arranged. A videoconference hearing was held on April 18, 2024 to further consider the worker's appeal. A reconvened hearing was held on September 26, 2024.
Issue
Whether or not the claim is acceptable.
Decision
The claim is not acceptable.
Background
On September 13, 2019, the worker submitted a Worker Hearing Loss Report to the WCB, reporting a gradual hearing loss they related to their employment with the employer and the third party. On the Report, the worker indicated hearing protection was always available during their entire career and noted non-work related noise exposure such as occasional hand power tool use and firearm use when they were younger. The worker also submitted a Work History Summary noting their employment with the employer and the third party from 1972 to 2008, and listing their exposure to noise from large machinery, sledge hammers and diesel and steam engines with the worker indicating their hearing was excellent when they began their employment and progressively deteriorated. An audiogram from August 19, 2019 was also submitted which indicated the worker had sensorineural hearing loss bilaterally and required hearing aids for both ears.
In a discussion with the WCB on September 25, 2019, the worker confirmed the information contained in their hearing loss report and further confirmed they had not had hearing tests done while employed with the employer or the third party. The worker noted they were employed with the third party from 1972 to 1987 and was transferred to the employer in 1987 until their retirement in 2008. The worker confirmed while employed with the third party, they were exposed to hydraulic tools, sledgehammers, grinders, and welding equipment while performing their job duties with hearing protection provided and worn at all times. While employed with the employer, the worker noted their job duties were a little quieter, with hearing protection again worn at all times. After retirement, the worker advised the WCB they worked part time but were not exposed to noise. The WCB advised the worker of the criteria needed to be met for acceptance of a noise induced hearing loss claim and advised further investigation was required.
The third party employer provided the WCB with an Employer Hearing Loss Report on October 11, 2019. The Report indicated the worker was employed with the third party from March 7, 1972 until they were transferred to the employer on October 2, 1986. The third party advised hearing protection was provided to the worker and their hearing protection program was implemented in 1970. A copy of a July 4, 1985 audiogram was also submitted. The employer provided the WCB with an Employer Hearing Loss Report on October 24, 2019 and noted the worker was employed from October 1986 until they retired in 2008. On October 25, 2019, the WCB contacted the worker and requested they attend for a hearing test with a certified audiologist. On the same date, noise level surveys from the employer and the third party were placed to the worker’s file by the WCB.
A November 26, 2019 audiogram was submitted to the WCB on November 26, 2019. The treating audiologist opined the worker had moderately-severe high frequency hearing loss bilaterally, consistent with noise exposure and recommended bilateral hearing aids. The worker’s file was reviewed by a WCB Ear, Nose and Throat (ENT) specialist on November 30, 2019. The specialist opined the worker’s 1985 audiogram indicated noise induced hearing loss in the worker’s right ear with the 2019 audiogram indicating noise induced hearing loss in both the worker’s ears. The ENT specialist recommended the worker be provided with bilateral hearing aids but noted the worker’s hearing loss was not rateable for a permanent partial impairment rating. On December 23, 2019, the worker was advised their claim for noise induced hearing loss was acceptable and they were entitled to 2 hearing aids.
The employer’s representative requested reconsideration of the WCB’s decision to accept the worker’s claim to Review Office on April 9, 2020. The representative noted the worker advised the WCB hearing protection had been provided and worn consistently throughout their career with both the employer and the third party and indicated that based on the noise reduction rating of the provided hearing protection, the noise levels the worker would have been exposed to would have been below the threshold set out in the WCB’s noise induced hearing loss policy. In addition, the representative noted the audiograms on the worker’s file indicate a mild hearing loss in the worker’s right ear in 1985 with the following audiogram in 2019 not showing a “…typical pattern for noise induced hearing loss.” The representative pointed out that the worker’s hearing had not been tested for a period of over 30 years making it difficult to establish a work-related cause of the worker’s hearing loss. At the request of Review Office, the worker’s file was again reviewed by a WCB ENT specialist on May 20, 2020. The specialist opined the worker’s 1985 audiogram indicated noise induced hearing loss in the worker’s right ear, with the left ear showing “…a warning sign of early onset of noise induced hearing loss…The difference in the hearing between the right and left ears is very minimal and not significant.” The specialist went on to further opine the 2019 audiogram was indicative of noise induced hearing loss, with an indication of presbycusis or age-related hearing loss and stated “…the 2019 audiograms are diagnostic of a combined noise induced hearing loss and presbycusis.” A copy of the opinion was provided to all parties, with the employer’s representative providing a further submission on June 17, 2020.
On June 23, 2020, Review Office determined the worker’s claim was not acceptable. Review Office found the evidence supported the worker consistently wore hearing protection while performing their job duties and that use would have limited the worker’s exposure to noxious noise. Further, Review Office found the noise level surveys provided by the employer and third party indicate the worker would have been exposed to intermittent levels of noxious noise throughout a work day, not continuous exposure as is required under the WCB’s policies. In addition, Review Office found the worker’s reporting of non-occupational use of hand tools and the asymmetric hearing loss indicated on the earlier audiogram supported the worker did not have hearing loss related to their employment.
The worker filed an appeal with the Appeal Commission on October 25, 2023 and a file review was arranged.
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:
"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 WCB's Board of Directors has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Hearing Loss 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 virtually at the hearing and was represented by two advisors. The worker answered questions posed by their advisor and by members of the panel. The worker’s advisor provided a written submission in advance of the hearing, made an oral presentation at the hearing and also answered questions posed by the members of the panel.
The worker's position was that their hearing loss was a result of the loud work environments they been exposed to, and their claim should be accepted. The worker states that the evidence shows that they had noise induced hearing loss as far back as 1985 and their permanent hearing loss was caused by exposure to hazardous noise in both of their work environments through their 36-year career with the two employers.
The worker described riveting as one of their job duties. The noise level survey carried out by the third-party employer in 1966 indicates that riveting produced bursts of noise in the immediate area of the operators in the range of 110 decibels to over 115 decibels for approximately 10 seconds.
The worker also advised that hearing protection (foam ear plugs) were available to them and that they would grab a handful at the beginning of a shift or when able to. However, the worker indicated that they would consider the ear plugs as “single use” and would remove the earplugs during their shift, to communicate with co-workers or listen for leaks when testing valves, and then would not want to reinsert the earplugs due to their hands being dirty. The worker stated that they would remove their earplugs several times a day.
The worker advised that they did not participate in hunting, except a few times as a young adult, and that they wore a helmet when snowmobiling and motorcycling. The worker stated that they sold their snowmobile and motorcycle many years ago and after approximately one year of working full time for the employer.
The evidence is that the worker’s audiogram in 2011 indicated that the worker was showing “early warning” signs of hearing loss. The worker notes that their audiograms between 2012 to 2015 indicated that no change in the worker’s hearing had occurred during that period.
The worker argues that their audiology test from 2019 indicated that they had “moderate to moderately severe high frequency sensorineural loss bilaterally”. The worker also states that their audiologist stated (on November 26th, 2019) that the worker’s hearing loss was consistent with noise exposure.
The worker points out that the Review Office disagreed with the WCB specialist, who stated that the worker would benefit from two hearing aids for their bilateral noise induced hearing loss. The worker states that the Review Office was incorrect in finding that the worker’s hearing loss was asymmetrical and argues that the difference in the hearing between the right and left ears is very minimal and not significant.
The worker asks that the panel give significant weight to the audiologist’s opinion and the opinion of the WCB specialist. The worker’s position is that their claim is acceptable.
The position of the worker is that while there is a combined effect between the occupational noise exposure and aging, the dominant cause of the worker’s noise induced hearing loss was their exposure to noxious levels of noise during their employment with both of the employers.
Employer’s Position
Two employers were present at the hearing. The worker was employed by the first employer in the earlier part of his working career. The worker was employed by the third-party employer in the latter part of his working career.
A representative for the employer appeared by teleconference and provided a written submission to the panel in advance of the hearing. The representative also made an oral presentation to the panel at the hearing and answered questions posed by members of the panel.
The employer’s representative advised that the worker’s audiogram from 1985, taken after 13 years of employment with the employer, was essentially normal and showed only minimal hearing loss in the right ear. The evidence is that the next audiogram is from June 2019, 11 years after the worker retired from the third-party employer. The employer’s representative argues that this audiogram assessment showed primarily age related presbycusis, which worsens over time. The position of the employer is the findings from the 2019 audiogram do not establish a cause-and-effect relationship with the employment activities from decades prior.
The employer argues that after 13 years of possible noise exposure, the 1985 audiogram shows that the worker’s hearing in their left ear was normal and that there was only mild hearing loss in their right ear. The employer argues that accepted medical information indicates that hearing loss develops the fastest in the first 10 to 15 years of exposure. The employer’s representative points to the 2019 audiogram and states that it shows ongoing hearing loss long after the worker ended their employment with the railways.
The employer’s representative states that the noise level testing information provided by the employer demonstrates that the worker was not exposed to noise levels that would be considered noxious under the Hearing Loss Policy. The employer states that the noise was below the acceptable 85 decibel range, and while there was some exposure to noxious noise, this was limited and intermittent and not continuous throughout the workday. The employer queried why the 1985 audiogram did not show noise induced hearing loss if the riveting was the cause of the hearing loss.
The employer noted that the sound level survey from 2005 show exposure levels at 83 decibels, which is again below the WCB threshold for noxious noise.
The employer advises that the evidence on file is consistent and by the worker’s own admission that they always wore hearing protection. The employer notes that the worker stated in their Report of Hearing Loss submitted to the WCB that they wore both “plugs and muffs” and stated the same thing in their work history summary provided to the WCB. The worker told the adjudicator in a conversation on September 20, 2019 that hearing protection was consistently worn with both employers. The worker again confirmed he wore earplugs and muffs in a conversation with the review officer on May 13, 2020. The employer notes that it was not until October 14, 2023 that the worker stated he did not wear hearing protection. The employer asks that the panel give this greater weight than later assertions of the opposite which came following the Review Office reversal of claim acceptance.
The employer’s position is that the worker’s hearing loss was not attributable to their employment activities. The employer asks the panel to deny the worker’s appeal and to uphold the decision of the Review Office.
Third Party’s Position
The third-party employer was represented by a workers compensation officer who appeared by videoconference. The third-party employer provided a presentation to the panel and answered questions posed by members of the panel.
The third-party employer states that the evidence, including the worker’s own admission, is that the worker consistently used hearing protection while employed with the third-party employer.
The third-partys employer points to the audiogram from July 4th, 1985 and advises that it indicated limited hearing loss in the worker’s right ear only. The position of the third-party employer is that any hearing deterioration beyond 1986 would have occurred after the worker’s employment period with the third-party employer.
The third-party employer is seeking that the Review Office decision be upheld.
Analysis
The worker is appealing the decision that their claim for hearing loss is not acceptable. For the appeal to succeed, the panel would have to determine that the worker has sustained noise induced hearing loss, and that the worker was exposed to sufficient noxious noise arising out of and in the course of their employment to have caused such hearing loss. As outlined in the reasons that follow, the panel was not able to make such a determination and therefore the worker’s appeal is denied.
The panel considered the noise level surveys on the file and accepts that the worker was exposed to intermittent noxious levels of noise throughout their workday, however the noise level survey results submitted on October 25, 2019 by the third-party employer (based on testing from June 1966) indicate that the general background noise levels were below 85 decibels.
The noise level survey completed in June 2005 indicates that exposure levels of 85 decibels or less in areas the worker was employed.
The use of hearing protection would have lowered this noise level such that it would not be considered noxious under the Hearing Loss Policy.
The panel accepts the evidence respecting the use of hearing protection that was provided by the worker in their Report of Hearing Loss and Work History Summary. The worker did not provide any details about removing their hearing protection, despite being asked if they wore hearing protection by the WCB adjudicator in a conversation on September 25, 2019. The worker instead indicated to the WCB that hearing protection was consistently worn.
The panel is of the view that while hearing protection reduces noise it does not eliminate all noise such that communication with a co-worker would not be possible without removing the hearing protection. The panel does not accept that the worker would remove their hearing protection during the noisiest periods of their work shift.
The evidence from the worker respecting the use of hearing protection was consistent until the Review Office decision. Therefore, on a balance of probabilities, the panel finds that the earlier evidence from the worker to be more reliable.
Based on our review of all of the information, which is before us, the panel accepts that the worker has a hearing loss but is unable to connect the worker's hearing loss to his employment.
As set out above, the panel is bound by the Hearing Loss Policy. The Hearing Loss Policy sets out the threshold which is to be met in order to establish that a noise induced hearing loss occurred at work. The panel notes that not all workers exposed to workplace noise levels above the threshold will experience hearing loss as a result of that exposure, and claims must be evaluated on an individual basis. In this instance, the panel is unable to find that there was exposure to high levels of noxious noise to the level required by the Hearing Loss Policy.
The panel finds, based on the totality of the evidence before us and on the standard of a balance of probabilities, that the worker’s hearing loss is not the result of an accident at work. Therefore, the worker’s claim is not acceptable, and the appeal is denied.
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 25th day of November, 2024