The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to coverage for hearing aids. A file review was held on February 4, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to coverage for hearing aids.

Decision

The worker is entitled to coverage for hearing aids.

Background

The worker filed a Worker Hearing Loss Report with the WCB on March 28, 2006, reporting a gradual hearing loss and ringing in their ears, they initially became aware of in the spring of 2004. The worker related their hearing loss to their job duties with the employer since 1981 to their retirement in 2003, indicating they were exposed to loud machinery for approximately 4 hours per day while at work. Non-occupational noise exposure was also noted such as flying, snowmobiling, power tool use (at home) and hunting/shooting. The worker noted hearing protection became available in 1990/1993 and they had worn protection for 13 years. The employer submitted a Hearing Loss Report on March 27, 2006, noting the worker started their employment with them in September 1981 and would have been exposed to loud noise approximately 5.5 hours per day. Also enclosed with the Report, were noise level testing and audiometric testing for the worker for 1992 to 2000.

On May 15, 2006 and May 16, 2006, reports from the worker's treating Ear, Nose and Throat (ENT) specialist were received. The February 8, 2005 report noted the worker was seen for assessment of high pitched bilateral tinnitus they had been experiencing for the previous two months and noted the worker's reporting of a past history of noise exposure. The ENT specialist indicated an audiogram indicated a high frequency sensorineural hearing loss in both ears and recommended the worker pursue a WCB claim. The next report dated March 16, 2006, noted the reported tinnitus had not improved and discussed the worker's treatment for a non-WCB related health concern.

The WCB's ENT specialist reviewed the worker's file on June 27, 2006. The specialist opined the worker had noise-induced hearing loss with that loss first indicated on testing in 1992 and a 2-year history of tinnitus. It was noted the worker had retired in 2003. The ENT specialist requested the worker be sent for a new audiogram. On December 14, 2006, the WCB received a copy of an audiogram and a report from the worker's treating audiologist. The audiologist provided the worker had a moderate sensorineural hearing loss, which was consistent with hearing loss where noise exposure may have been a factor, however, the hearing loss was noted to be insufficient to require hearing aids at the time. On December 15, 2006, the WCB ENT specialist again reviewed the worker's file and confirmed the worker had noise-induced hearing loss with the first date indicated same to be in 1992. It was determined that the worker did not require and had not requested hearing aids. The WCB accepted the worker's claim for noise-induced hearing loss and advised them of such on May 3, 2007. Nevertheless, the WCB ENT specialist had determined they did not require hearing aids at this time. It was noted that if the worker did require them at a later date, they would need to have their hearing checked and request approval for hearing aids from the WCB.

An audiogram for testing conducted on July 6, 2021 was received and indicated mild sensorineural hearing loss and recommended reassessment in two years. A further audiogram was received by the WCB on December 29, 2023. The report noted the worker had testing done in 2021 and was "borderline" for hearing aids at that time and the worker felt their hearing had not changed much in the previous two years. The audiogram indicated borderline normal/mild sensorineural hearing loss sloping to severe, worse in the right ear. It was further noted the worker did not want to pursue hearing aids.

The worker contacted the WCB on August 29, 2024 to advise that they had undergone a hearing test on August 28, 2024. On August 30, 2024, the hearing test centre contacted the WCB to ask if the worker was entitled to hearing aids. The WCB spoke with the worker on September 3, 2024 who confirmed they retired in 2003 and had not been exposed to loud noise since that time. The WCB advised the worker that they were not entitled to hearing aids when their claim was accepted in 2007 and would not be eligible now but that a further review of their claim would be conducted. On September 5, 2024, the WCB advised the worker they were not entitled to hearing aids as it had been determined in 2007 they did not meet the minimum thresholds to require hearing aids. The WCB's position was that since the worker had retired in 2003 and had not been exposed to further noise, any deterioration in their hearing could not be attributed to noise exposure in their workplace.

On October 7, 2024, the worker requested reconsideration of the WCB's decision by the Review Office. In their submission, the worker noted in 2007, their claim was accepted for noise-induced hearing loss and noted at that time, they were advised they could request hearing aids at a later date. The worker confirmed that they did not require hearing aids at the time but do require them now and believed they should be entitled to coverage for same. The Review Office determined on October 21, 2024 that the worker was not entitled to coverage for hearing aids. The Review Office found hearing loss can deteriorate for many reasons, including age and further noise exposure; which the worker had not been exposed to, as they had retired in 2003. As such, the Review Office determined the worker did not require hearing aids as a result of their compensable injury.

The worker filed an appeal with the Appeal Commission on November 12, 2024 and a file review was arranged.

Reasons

Majority Decision: Chairperson Lemieux Howard and Commissioner Kernaghan

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 made 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.

The Act authorizes the WCB to fund such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

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 includes medical supplies, orthotics and prosthetics, which includes hearing aids. Schedule B to the Medical Aid Policy outlines that the WCB will fund medical devices and appliances, which includes hearing aids, if:

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.

The WCB has also established WCB Policy 44.20.50.20.02, Hearing Loss (the “HL Policy”), outlines the WCB’s approach to claims arising from accidents between May 29, 1985 and March 31, 2000 where long-term exposure to occupational noise caused hearing loss.

The HL Policy states, in part, that: 

…

5. When a claim for noise-induced hearing loss is accepted and a specialist recommends the use of a hearing aid(s), a worker will be entitled to a suitable hearing aid(s) of a reasonable cost as approved by the Workers Compensation Board (WCB).

Worker's Position

The worker provided a submission with their Worker Appeal of Claims Decision form on November 12, 2024 for the panel's consideration. The worker’s position is that they have noise induced hearing loss from their workplace exposure to noise and that their hearing has since deteriorated. The worker submits that the need for hearing aids relates to their workplace exposure.

Employer's Position

The employer did not participate in the appeal.

Analysis

The question before the appeal panel is whether the worker is entitled to coverage for hearing aids. For the worker’s appeal to be successful, the panel would have to determine that the worker requires a hearing aid as a result of noise induced hearing loss (“NIHL”) arising from workplace exposure to noise. As detailed in the reasons that follow, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The evidence before the panel is that the worker was exposed to noxious noise in the workplace and had NIHL. The WCB accepted the worker’s claim for NIHL arising from occupational exposure to noxious noise in the workplace on May 3, 2007. At that time the opinion of the WCB ENT Specialist was that the worker would not benefit from the use of hearing aids. The letter to the worker dated May 3, 2007 indicated that should the worker require hearing aids in the future, they would need to get their hearing checked and would need to request approval for aids.

There is no evidence before the panel that the worker recovered from the hearing loss. The evidence is that the worker now requires hearing aids.

Despite the fact that an Audiologist indicated in a letter to the WCB dated December 14, 2006 that the hearing loss was insufficient to warrant amplification, this does not mean that the worker’s hearing is not currently affected by the presence of the NIHL they suffered as a result of their work.

The criteria for funding hearing aids as set out the Medical Aid Policy are met in this case. Specifically, the hearing aids were recommended by the worker’s treating Audiologist (as set out in their report dated September 5, 2023) and the need for the hearing aids is, at least in part, a result of the NIHL which affected the worker’s overall hearing.

The deterioration of the worker’s hearing may not be work related, but the panel is of the view that the NIHL affected the worker’s eventual need for hearing aids. The HL Policy provides that if hearing loss is accepted, which it is in this case, and a specialist recommends the use of hearing aids, which they do in this case, a worker will be entitled to hearing aids. The worker’s overall hearing loss has a component of noise induced hearing loss and for that reason, the panel finds, on a balance of probabilities, that the worker is entitled to coverage for hearing aids.

The worker’s appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of March, 2025

Commissioner's Dissent

Commissioner Peterson's Dissent:

The worker submitted a claim for the coverage for hearing aids. The worker is appealing the WCB's decision that denied the coverage for hearing aids. For the worker to succeed on the appeal, I would have to find that the worker qualified for hearing aids as a result of NIHL. I am not able to make this finding, for the reasons that follow.

The facts of the case as stated above in the background are not in dispute and I agree with their inclusion. One key fact is that the worker retired from their employment in 2003.

The worker's healthcare provider provided a report to the WCB dated December 14, 2006 which stated, “the loss is insufficient to warrant amplification at this time.” I place significant weight on this report and its recommendation as it is the report closest to the worker's retirement date.

A WCB healthcare consultant reviewed the worker's file on May 3, 2007 for a permanent partial impairment (PPI) rating. The consultant's report indicated that the worker has NIHL but the NIHL was not ratable for purposes of a PPI. The consultant further indicated that the worker did not require or request hearing aids. It is my opinion that the review/rating was specific to a PPI rating and that the WCB consultant made no firm determination on the worker's NIHL. In fact, the letter from the WCB dated May 3 2007 stated that; “Should you require them in the future, you will need to get your hearing checked at a hearing centre and they will need to request approval for aids.” Bold my emphasis.

Subsequent testing did not occur until July 6, 2021 and again on September 5, 2023 and again aids “were not requested at this time.” Further, I place little weight on these hearing assessments as they are too far removed from the worker's retirement in 2003.

Given the fact that the worker retired in 2003 and the generally accepted norm that NIHL does not continue to deteriorate after a worker leaves the workforce, it is my position that while the worker may require hearing aids now, that requirement is not related to his work activities, as the reporting closest to the time of employment does not indicate a necessity for them.

Therefore, based on the balance of probabilities the worker still does not require hearing aids as a result of NIHL. Any further work related NIHL factors ended at retirement and the continued deterioration in the worker's hearing cannot be related to exposure to noxious noise in the workplace.

Accordingly, I find that the worker is not entitled to coverage for hearing aids and I would deny the appeal.

Minority Panel Member: J. Peterson, Commissioner

J. Peterson Commissioner