The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that they are not entitled to coverage for a hearing aid for the right ear. A hearing took place on April 8, 2025 to consider their appeal.

Issue

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

Decision

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

Background

The worker submitted a Worker Hearing Loss Report to the WCB on February 28, 2023, reporting gradual hearing loss which they related to their past employment with specific employers.

When the WCB contacted the worker on March 10, 2023, the worker advised they first experienced gradual, bilateral hearing difficulties while working with the employer, which worsened. The worker also provided information on their other employment, but noted they attributed their hearing loss to their work with the employer. The worker confirmed they had no non-occupational noise exposure, but indicated that in later employment, they used a firearm at work, shooting left-handed.

The employer’s Employer Hearing Loss Report submitted to the WCB on March 23, 2023 set out that they had no records for the worker.

The WCB requested the worker attend for hearing testing performed by an audiologist. The WCB received a copy of a March 19, 2023 audiogram on April 21, 2023 which indicated the worker’s high frequency moderate to moderate/severe sensorineural hearing loss on the right and high frequency mild to moderate/severe sensorineural hearing loss on the right.

The WCB adjudicator indicated their rationale for accepting the worker’s claim for hearing loss, pending a review of the medical information, in a memorandum to file dated April 26, 2023. In the memorandum, the adjudicator noted that the WCB had not received information on the type of hearing protection used or the employer’s hearing program, so minimal numbers for both were used. The adjudicator also noted the subsequent employer provided hearing assessments from when the worker’s employment began in 2002, with those assessments already indicating the worker’s hearing loss. A further hearing assessment report, dated April 27, 2023, indicated the worker’s moderately severe high frequency sensorineural hearing loss bilaterally after a history of work-related noise exposure and recommended binaural hearing aids for the worker.

On June 2, 2023, a WCB audiology consultant reviewed the worker’s file and concluded that the worker had noise-induced hearing loss, with the first audiogram indicating signs of hearing loss dated April 16, 2002. The consultant found the 2002 results indicated “…a notch pattern of hearing loss was present in the left ear at 6k Hz, with a plateau patterns present in the right at same” and that by 2010, minor notch patterns were present in both ears at the same time. The consultant concluded that based on the hearing assessments in 2010 and 2011, at the end of the worker’s occupational noise exposure, the worker required a hearing aid for the greater hearing loss in their left ear only.

On August 9, 2023, the WCB advised the worker that the claim for noise-induced hearing loss was accepted, and they were entitled to a hearing aid for their left ear.

The worker requested Review Office reconsider the WCB’s decision, noting they had hearing loss in both ears and believed they should be entitled to bilateral hearing aids. On January 3, 2024, Review Office determined the worker was not entitled for coverage for the right hearing aid as the worker did not require a right ear hearing aid in 2011 and they were not exposed to noxious noise after that time. As the worker’s noise-related hearing loss would not deteriorate further once their exposure was removed, Review Office found the worker’s further hearing loss in their right ear could not be accounted for in relation to their employment.

The worker filed an appeal with the Appeal Commission on February 6, 2025 and a hearing took place.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made pursuant to the Act and the policies established by the Workers Compensation Board of Directors. The legislative provisions in effect at the time of the 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. Section 27(1) of the Act states 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."

The WCB Policy 44.20.50.20, Noise-Induced Hearing Loss outlines the WCB's approach to claims arising from long-term exposure to occupational noise that causes hearing loss. This policy provides, in respect of coverage for hearing aids, that WCB Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) applies. The Medical Aid Policy sets out general principles regarding a worker’s entitlement to medical aid, which includes medical supplies, orthotics, and prosthetics, such as hearing aids. The Medical Aid Policy outlines that the WCB will determine if medical aid is appropriate and necessary, considering the following criteria:

• Recommendations from recognized healthcare providers; 

• Current scientific evidence about the effectiveness and safety of prescribed/recommended healthcare goods and services; 

• Standards developed by the WCB Healthcare Department.

Schedule B of the Medical Aid Policy confirms that for medical appliances and devices, the WCB will fund 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.

Worker's Position

The worker appeared in the hearing represented by a worker advisor who provided an oral submission to the panel and relied on additional materials submitted in advance of the hearing. The worker offered testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the worker is entitled to a right hearing aid as the WCB accepted their claim of bilateral hearing loss due to occupational noise exposure, bilateral hearing aids are recommended by the treating audiologist and because there is no evidence that the noise exposure varied as between their right and left ear.

The worker’s representative acknowledged that there may also be other factors that contributed to the worker’s hearing loss, such as age-related degeneration; however, the representative submitted that if the worker had not been exposed to noxious occupational noise, they would not currently require hearing aids. The worker advisor argued that the requirements of the Medical Aid Policy are met in this case.

For these reasons, the worker submits that they should be entitled to bilateral hearing aids arising from their workplace exposure to noise and the appeal should be granted in respect of the request for the right hearing aid.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question in this appeal is whether the worker is entitled to a hearing aid for their right ear. For the appeal to succeed, the panel would have to determine that this hearing aid is appropriate and necessary in respect of the compensable workplace injury, which the WCB accepted as bilateral noise induced hearing loss. 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 panel noted that the WCB accepted the worker’s claim for bilateral hearing loss arising out of their occupational exposure to noxious noise in the workplace and determined the worker required a left hearing aid, but that their right hearing loss, at the time of that occupational exposure, was insufficient to necessitate a hearing aid. In making this determination, the WCB relied on 2011 workplace hearing test results which indicated that, at that time, the worker’s right hearing loss was within normal limits; however, the panel noted there were no recommendations made for hearing aids at that time. Further, there are no hearing test results available from 2011 through May 2013 when the worker left Manitoba to work in another province until March 2023.

On reviewing the workplace testing results, the panel noted that while the worker attributed their hearing loss to their exposure during the years up to 2002 when working with the employer and the WCB found there was evidence of noise induced hearing loss as of April 2002, the testing results from the period of 2002 – 2011 indicated further decline in the worker’s hearing during their subsequent employment. The panel also reviewed the more recent audiological testing results from March and April 2023, as well as the June 2023 review by the WCB audiology consultant. We specifically noted the treating audiologist’s April 27, 2023 recommendation for “binaural amplification to compensate for the significant hearing loss and daily communication difficulties” provided based on the audiological testing results of the same date which indicated “moderately severe high frequency sensorineural hearing loss, bilaterally.” Despite this recommendation based on the testing of the same date, the WCB consultant concluded the worker is entitled only to left ear amplification based on the earlier 2010 and 2011 workplace testing results, at which time there were no recommendations for amplification devices.

Applying the provisions of the Medical Aid Policy, the panel finds that the worker is entitled to a right ear hearing aid. The use of bilateral hearing aids was recommended by an audiologist, the need for those devices explicitly arose out of the worker’s diagnosed bilateral moderately severe high frequency sensorineural hearing loss, and the WCB confirmed the worker’s hearing loss is a result of workplace noise exposure. As the WCB has already determined that a left hearing aid is both likely to be effective in treatment of the worker’s hearing loss and is of reasonable cost, and there is no evidence to the contrary, the panel is satisfied that this is also the case for the right hearing aid.

Based on the evidence and applying the standard of a balance of probabilities, we are satisfied that the worker is entitled to coverage for a hearing aid for the right ear. The worker’s appeal is therefore granted.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 17th day of April, 2025