The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that their claim is not acceptable. A hearing took place on November 5, 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 claim with the WCB on February 18, 2020, reporting a gradual hearing loss related to noise exposure at work. The worker indicated they first noticed their hearing loss symptoms in March 2018 when a hearing test at work indicated a decline in their hearing. The worker noted greater loss in their right ear than left. On request by the WCB, the worker provided a Work History Summary on February 27, 2020 outlining the details of their employment, job duties and workplace noise exposure with four previous other employers and the current employer.

On March 4, 2020, the worker confirmed to the WCB that they noticed a decline in their hearing in March 2018, with their right ear worse than their left, and no tinnitus. The worker confirmed the information already provided in their Report and Work History Summary and indicated they also had some non-occupational noise exposure from motorcycle riding, home power tool operation and hunting/shooting.

The current employer submitted an Employer Hearing Loss Report to the WCB on April 21, 2020, confirming the worker was employed since June 23, 2014. The employer outlined the worker’s jobs and commented on their noise exposure. The employer also reported that they provided hearing protection and required that the worker use it. The employer also submitted a copy of noise level testing conducted on their work site. On May 21, 2020, the WCB received results of the worker's tests from April 2015 to May 30, 2018 from testing conducted on behalf of the current employer.

The WCB also received information from the worker’s previous employers. The employer from 2006 to 2014, immediately prior to the current employer, confirmed the worker's position while employed and submitted a copy of noise level testing conducted in 2015 in other work sites, for various positions, including those held by the worker. This previous employer also advised they provide hearing protection equipment to all workers and that their policies and procedures require use of that protective equipment based on the work required.

The WCB advised the worker on May 27, 2020 that their claim was not acceptable as the evidence and information gathered did not confirm the worker’s occupational noise exposure exceeded the threshold set out in its policies.

On December 18, 2020, the worker requested Review Office reconsider the WCB's decision and on January 4, 2021, provided further information as to their previous noise exposure. On February 9, 2021, Review Office determined the worker's claim was not acceptable as the evidence did not establish the worker had sufficient occupational noise exposure.

The worker filed an appeal with the Appeal Commission on August 23, 2024 and a hearing was arranged. Following the hearing, the appeal panel requested additional information which was forwarded to the worker for comment before the panel met on May 1, 2025 to discuss the case and render a decision on the issue under appeal.

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 "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 and made a submission in support of their appeal. The worker offered testimony in answer to questions posed by members of the appeal panel. The worker also provided further written submissions in response to the additional information obtained by the appeal panel following the hearing.

The worker’s position is that the evidence confirms their workplace exposure to noxious noise in the workplace throughout their working years, and that due to that exposure, they developed noise induced hearing loss (“NIHL”). As such, the claim should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue under appeal is whether the claim is acceptable. For the panel to find the worker’s claim is acceptable, we would have to determine that the worker’s hearing loss is, on balance of probabilities, 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 there is evidence that the worker has bilateral hearing loss and that there was a history of workplace noise exposure, but 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. As outlined in the Policy, 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. Generally, the WCB will accept a claim for NIHL if there is evidence that a worker was exposed to hazardous noise at work for a minimum of two years, based upon an average of eighty-five decibels for eight hours of daily exposure.

The audiological evidence here indicates that in September 2021, the worker had a diagnosis of bilateral severe to moderately severe sensorineural hearing loss. The workplace hearing assessment records from April 2015 through May 2018 confirm that the worker already had significant hearing loss at that time, and that in 2015, the right ear hearing loss was consistent with noise exposure but by 2018 it was not consistent with noise exposure. The WCB otolaryngology consultant provided an opinion at the request of the panel on November 29, 2024 indicating that the recent audiograms show evidence that is consistent with bilateral noise induced hearing loss. The WCB consultant concluded that “Should it be found that the noise exposure levels (in decibels) that [the worker] was exposed to be of sufficient loudness for an appropriate amount of time per day, [the] observed hearing loss could be related to workplace noise exposure.” The panel accepts and relies upon this opinion.

We therefore also considered if the evidence supports a finding, on the standard of a balance of probabilities, that the worker was exposed to noise in the workplace sufficient to meet the minimum exposure threshold set out in the Policy, being an average of 85 decibels for 8 hours of exposure daily for a minimum of two years. The worker’s testimony and the information they provided to the WCB confirms their belief that they were exposed to noxious levels of noise at work. The worker outlined the details of their workplace noise exposure from 1997 to the present, noting that they worked in an environment from 1997 to 2002 that was often very loud, without any hearing protection. The worker testified that from 1998-1999 they worked in a setting where they were exposed to some machinery noise as well as the noise of herds of animals indoors, and that from 2006 to 2014 they were exposed to excessive noise from various machinery and trucks. The panel noted that the noise level evidence from the 2006-2014 employer which the WCB relied on was not from sites where the worker was employed and that the worker testified that at their worksites, the noise levels were likely greater than set out in those reports. We also noted the worker’s testimony that they did not have access to hearing protection at this workplace, despite the information to the contrary provided by that employer. The worker confirmed that although there is noise exposure in their current employment, the employer has a good hearing protection program which the worker takes advantage of.

The panel considered the available evidence as to noise levels in relation to various worksites of the most recent previous Manitoba employer but finds that this evidence describes noise levels in places where the worker was never employed and from some two years after the worker left that employment. As such these noise level readings, while informative, do not have direct application to the question of the cause for the development of this worker’s hearing loss. While this is the only objective evidence of the extent of the noise exposure from the worker’s past employment that is available for the panel to consider, we give it little weight given the lack of direct connection to this worker’s noise exposure. The worker submitted that their exposure exceeded that described in the reports provided by this previous employer, but the panel is unable to confirm this based on the evidence before us. Further, the worker provided some noise level reading information from similar workplaces recently collected by a third party on behalf of the worker, we are unable to confirm or rely upon this evidence.

Based on the totality of the evidence, and on the standard of a balance of probabilities, the panel is not able to find that the worker was exposed to noise in excess of 85 decibels for 8 hours daily over a period of two years as is required to establish a successful claim for occupational noise induced hearing loss. 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
S. Magian, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of May, 2025