Decision #117/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to a hearing aid for the left ear. A file review was held on November 14, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a hearing aid for the left ear.

Decision

The worker is entitled to a hearing aid for the left ear.

Background

On November 8, 2022, the WCB accepted a claim for work-related (noise-induced) hearing loss in the worker’s right ear and approved a hearing aid for the worker’s right ear only. The worker’s claim relating to hearing loss in the left ear was denied. Exposure to noxious noise is not disputed. The worker has appealed the WCB decision not to approve a hearing aid for the left ear.

The worker’s WCB claim for noise-induced hearing loss in both ears was made after an incident at work on July 29, 2020 during which the worker reported an increased exposure to noise which resulted in tinnitus, hearing loss, headache and ear pain.

The worker was seen by the treating physician and an ENT specialist on September 3, 2020. The report from the specialist noted the worker's complaints of bilateral hearing loss, with their left ear being worse for some time, as well as the worker’s advice that there had been previous abnormal audiograms through the employer. The ENT specialist noted the worker had moderate sensorineural hearing loss in higher frequencies on the right with moderate to severe sensorineural hearing loss in frequencies above 250 on the left. The specialist opined the worker had some evidence of noise-induced hearing loss but also had additional sensorineural hearing loss on the left with no obvious cause. The worker was referred for an MRI scan which concluded that there was "No acoustic trauma".

An audiogram dated April 9, 2022 was placed to the worker's file on May 10, 2022. The treating audiologist reported the worker had moderate sensorineural hearing loss in the right ear and moderately-severe to profound mixed hearing loss in the left ear (sensorineural and conductive), and wrote that the worker “sustains a clinically significant hearing loss in both ears” and, given the history of occupational noise exposure, “it is possible that [the] hearing loss is at least in part occupational noise-induced”. Binaural hearing aids were recommended.

On August 9, 2022, a WCB audiologist reviewed the worker's file, including audiograms from 1994 – 2021, which had been provided by the employer on February 8, 2022, and noted that a 2006 workplace hearing assessment supported noise-induced hearing loss in the worker's right ear. With respect to the worker's left ear, the audiologist requested previous records related to the worker’s hearing, noting also that the mixed hearing loss (both conductive and sensorineural) seen in the April 2022 audiogram is not typical of NIHL alone, but may represent NIHL combined with another otologic condition.”.

On August 17, 2022, the WCB received a historical report from the worker's treating physician, including copies of all relevant testing, audiograms and reports. In addition to detailing the worker’s treatment and testing immediately after the July 29, 2020 incident which is the subject of this claim, the physician report detailed 1987 and 2007 worker complaints of plugging, tinnitus and intermittent hearing loss, more pronounced in the left ear. The worker was referred to an ENT specialist on both occasions. As a result of the 2007 referral the worker saw the ENT specialist twice in 2008 and once in 2010. Conductive hearing loss was identified in the higher frequencies in the left ear. The worker saw another otolaryngology specialist on two occasions in 2010, who diagnosed mild conductive hearing loss in the left ear and an associated sensorineural hearing loss.

New medical information received as a result of the August 9, 2022 request was reviewed by the WCB audiologist on September 13, 2022. The audiologist reported that:

i) the March 26, 1986 audiogram on file found the worker's hearing thresholds were within normal limits; 

ii) a February 26, 2008 audiogram on file noted a mixed hearing loss in the left ear (sensorineural and conductive); and 

iii) an October 2010 audiogram on file indicated the hearing loss in the worker's left ear was primarily a conductive loss.

The audiologist went on to note there were no audiometric records to support a “purely sensorineural” hearing loss in the worker's left ear and noted "A significant conductive component of hearing loss (and asymmetry) was already present in the left ear at the time of the onset of mild (30dB) NIHL (noise-induced hearing loss) in the right ear" and concluded there was insufficient evidence to support a material component of noise-induced hearing loss in the worker's left ear.

On October 3, 2022, the worker's WCB adjudicator placed a memorandum to file in support of acceptance of a noise-induced hearing loss claim for the worker. The worker's file was again reviewed by a WCB audiologist on October 17, 2022, who opined the first audiogram to indicate noise-induced hearing loss was February 8, 2006 for the worker's right ear and that the worker was entitled to a hearing aid for their right ear. On November 8, 2022, the worker was advised by the WCB their claim for noise-induced hearing loss was accepted for the right ear only and they were entitled to a hearing aid only for the right ear.

On June 29, 2023, the WCB received a letter from the worker's treating ENT specialist noting the worker would benefit from a hearing aid for their left ear. On August 9, 2023, the worker requested the WCB reconsider only providing a hearing aid for their right ear, noting both their ENT specialist and audiologist supported bilateral hearing aids, and enclosed copies of letters in support of their request. The January 16, 2023 letter from the worker's treating audiologist indicated the worker would benefit from having bilateral hearing aids as they would have better speech understanding in background noise, better sound quality and improved sound localization.

On August 31, 2023, the WCB advised the worker that coverage for a left hearing aid was not approved as it had been determined the dominant cause for the left ear hearing loss was not related to their employment.

The worker requested reconsideration of the WCB's decision to Review Office on November 10, 2023. In their submission, the worker noted their treating healthcare providers supported the need for a hearing aid for their left ear and further noted they continued to be exposed to loud noise while at work.

On November 28, 2023, the worker submitted further information to Review Office in the form of further details relating to a 1999 work incident in which a pressurized air hose was uncoupled near the worker’s left ear. A memo from the employer’s safety office dated May 27, 1999 was included which confirmed hearing loss in the left ear since the last testing in 1994 but indicated that the change was not likely attributable to the incident. A WCB claim was denied at that time. Also included was a copy of audiologic testing results from 1994, 1999, 2000 and 2002.

On January 18, 2024, the employer submitted a response in support of the WCB's decision, a copy of which was provided to the worker on January 23, 2024.

Review Office determined on March 5, 2024 that the worker was not entitled to coverage for a left hearing aid. Review Office accepted and agreed with the WCB audiologist's report and found the dominant cause for the worker's hearing loss in their left ear was not due to exposure to noxious noise and as such, they were not entitled to coverage for a hearing aid for that ear.

The worker's representative filed an appeal with the Appeal Commission on August 15, 2024 which included a further report from the treating ENT specialist dated August 1, 2024, confirming similar levels of sensorineural hearing loss in the worker’s left and right ears, with additional conductive hearing loss in the left ear. A file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations made under the Act, and 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.

Subsection 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.

Accident is defined in s. 1(1) of the Act as follows:

“accident” means a chance event occasioned by a physical or natural cause, and includes 

(a) a willful 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.

Subsection 4(4) of the Act provides that:

Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

Subsection 27(1) of the Act provides that the WCB “…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

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 causing hearing loss. The NIHL Policy states, in part, that:

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 the 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.

WCB Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) defines key terms and sets out general principles regarding a worker’s entitlement to medical aid. The definition of medical aid specifically includes hearing aids. Schedule B to the Medical Aid Policy establishes that the WCB will fund medical devices and appliances where:

1. The medical device or appliance is prescribed or recommended by a recognized health care provider; 

2. The need for the medical device and/or appliance is the result of a compensable injury; 

3. The Board determines that the medical device and/or appliance will likely be or has been effective in the treatment or ongoing care of a compensable injury; and 

4. The Board considers the cost of the medical device and/or appliance to be reasonable.

Worker’s Position

The worker was represented by a worker advisor, who provided a written submission in advance of the file review.

The worker’s position was that there is medical evidence of noise-induced hearing loss in the worker’s left ear, similar to the right, and that the worker is therefore entitled to benefits for the hearing loss in the left ear.

The worker relies on the treating ENT specialist's report dated August 1, 2024, which confirms the worker’s mixed hearing loss in the left ear, based on testing in 2022, and states:

My review of this [2022] audiogram reveals that the bone conduction thresholds are actually similar in both ears. The additional hearing loss on the left is a conductive hearing loss.

Since his bone conduction thresholds are similar in both ears and a claim has been accepted for noise-induced hearing loss affecting the right ear, this leads me to conclude that he also has noise-induced hearing loss in the left ear. The additional conductive hearing loss may have been due to the trauma that he suffered in 1999. Again, I was not aware of this incident of trauma when I first saw him.

The worker argues that since the claim for noise-induced hearing loss was accepted for the right ear and the left ear has similar sensorineural loss, the claim should also be accepted for the left ear. The worker states that both ears were exposed to the same noxious noise.

The worker submits that even if the conductive hearing loss is a pre-existing condition, it is not the sole cause of the worker’s hearing loss. Regardless of the cause of the conductive hearing loss, it is separate from the sensorineural (noise-induced) hearing loss and therefore does not preclude the worker from making a successful claim for work-related hearing loss. The worker further submits there is no requirement that the noxious noise be the dominant cause of the worker’s hearing loss based on legislation and policy.

Employer’s Position

The employer was also represented and provided a written submission in advance of the hearing. The employer’s position was that the hearing loss in the worker’s left ear was primarily conductive, appeared before the first appearance of noise-induced hearing loss in the left ear, and did not follow the pattern of noise-induced hearing loss. Therefore, the employer argued, the worker is not entitled to benefits for hearing loss in the left ear.

The employer relies on Subsection 4(4) of the Act which requires that in the case of an occupational disease that is caused in part by employment and in part by other causes, the injury may be the result of an accident arising out of and in the course of employment only where the employment is the dominant cause of the occupational disease. The employer argued that the worker’s left ear hearing loss was primarily due to another cause given the conductive component that pre-dated the noise-induced hearing loss in the right ear and the asymmetry of the hearing loss.

Analysis

The issue before the panel is whether or not the worker is entitled to a hearing aid for the left ear. For the worker’s appeal to be successful the panel must find that the recommended hearing aid meets the criteria of the Medical Aid Policy. The panel is able to answer this question in the affirmative, for the reasons that follow.

The worker has an accepted claim for noise-induced hearing loss in the right ear, first documented in 2006, as confirmed by the WCB audiologist report of August 9, 2022, at which time the degree of loss was mild. Noise-induced hearing loss was not noted in the left ear at that time but conductive hearing loss was evident.

By 2008, a component of sensorineural hearing loss was also indicated in the worker’s left ear, as confirmed by the WCB audiologist report of September 13, 2022. However, the worker’s claim in relation to the left ear hearing loss was denied in 2022 as a result of the worker’s medical history relating to the left ear.

Hearing loss in the worker’s left ear had first been reported in 1999, at which time the worker’s hearing was tested as a result of the uncoupling of a pressurized air hose in close proximity while at work. The hearing in the worker’s left ear had precipitously dropped in relation to the then most recent hearing test on record for the worker, which had taken place in 1994, according to the May, 1999 employer memo and audiogram results provided. The hearing in the worker’s right ear was within normal range at that time. The worker’s claim for hearing loss in the left ear was denied by WCB at the time due to the opinion of an audiometric technician that the hearing loss could not be accounted for by the acoustic trauma reported.

Since 2008, evidence of noise-induced hearing loss has continued to be reported in both of the worker’s ears, with hearing in the left ear continuing to have a conductive component and to be worse than the hearing in the right ear.

The NIHL Policy provides that a claim for noise-induced hearing loss is accepted upon evidence of exposure to noxious noise at minimum defined levels for at least a prescribed period of time. There is no dispute that the worker was exposed to noise levels at or above the stipulated thresholds for at least the minimum amount of time. There is no evidence that the exposure was anything other than bilateral. The noise exposure to the left ear must therefore be presumed equal to the noise exposure to the right ear.

Beginning in 2008, the medical evidence supports a finding that hearing loss in the worker’s left ear had a noise-induced component which is work-related and which increased over time. The worker had noise-induced hearing loss in both ears at the time of the 2020 - 2022 audiograms. By 2022, the work-related hearing loss in both ears and the conductive hearing loss in the left ear caused the worker’s medical professionals to recommend the use of hearing aids for both ears. The panel is satisfied that the worker would have required the use of hearing aids for both his left and right ears even in the absence of the conductive hearing loss.

The panel notes that based on the ENT specialist’s correspondence of Augst 1, 2024, the worker’s sensorineural hearing loss in the right and left ears was roughly equivalent as of the audiograms conducted in 2022 and that the additional loss in the left ear was conductive. The panel therefore finds that the worker experienced work-related, noise-induced hearing loss in the left ear.

Having made the finding with respect to hearing loss in the left ear, the panel is also able to determine that the worker’s claim for a hearing aid for the left ear is acceptable. The Medical Aid Policy provides that where there is a compensable injury, the board will consider whether the requested device is recommended, effective and of a reasonable cost. The panel finds that the request for a left ear hearing aid meets these objectives.

In light of the foregoing, and given that the WCB has accepted responsibility for a hearing aid for the worker’s right ear based on work-related, noise-induced hearing loss which is similar to the noise-induced hearing loss reported for the worker’s left ear, the panel is able to find that the left ear hearing aid is similarly required. Accordingly, the worker’s claim is accepted.

Panel Members

M. Murray, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Murray - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of December, 2024

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