The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing against the decision made by the Workers Compensation Board ("WCB") that they are not entitled to a permanent partial impairment award. A hearing was held on March 20, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

The worker is entitled to a permanent partial impairment award.

Background

The worker filed a Worker Hearing Loss Report with the WCB on August 22, 2017, reporting a gradual hearing loss they related to their employment with the employer. The worker noted a decline in their hearing over the previous 6 months but also that they had difficulty hearing for years. The worker did not note any recreational exposure to noise and indicated they were exposed to loud noise, including loud blasts, over the 30 years they were employed. The worker also submitted a Work History Summary, listing their employers from the 1970s to their employment with the employer from 1990 to 1994 when they retired. For each employer, the worker noted they were exposed to loud noise daily and had not worn hearing protection. Also included with the worker’s Report was a July 21, 2017 audiogram which indicated the worker’s complaints of bilateral hearing loss, more on the left than the right, and intermittent tinnitus in both ears and noted the worker’s reporting of a history of noise exposure while working and no use of hearing protection. After testing, the audiologist found the worker had “…minimal sloping to moderate sensorineural hearing loss for the right ear; and a mild sloping to severe sensorineural hearing loss for the left ear.” Bilateral hearing aids were recommended.

On August 28, 2017, the WCB contacted the worker to discuss their claim. The worker provided further details on their employment history and confirmed their noise exposure was the same for each employer and that they were not provided with hearing protection. Further, the worker confirmed they retired in 1994. With respect to non-occupational noise exposure, the worker advised they had hunted, approximately 12 to 13 years previously, firing a rifle from their right shoulder without hearing protection. The WCB advised the worker that further investigation was required.

An Employer Hearing Loss Report was received from the employer indicating the worker had been employed from 1992 to 1996 and would have been exposed to loud noise for 6 hours per day, without hearing protection provided.

The worker's file was reviewed by a WCB Ear, Nose and Throat (ENT) specialist on November 21, 2017 who opined the worker had noise-induced hearing loss, first indicated on an audiogram dated July 21, 2017. It was noted the worker had asymmetric hearing loss possibly due to reported right-handed firearm use. The ENT specialist stated "Assuming occupational NIHL is symmetrical, I am using the right ear thresholds for both ears for the PPI calculation." Based upon this, the ENT specialist calculated the total permanent impairment award at 0%.

On November 23, 2017, the worker was advised their claim for noise-induced hearing loss was accepted and they were entitled to coverage for 2 hearing aids, however, they were not entitled to a permanent partial impairment award. The WCB advised that due to the asymmetric nature of their hearing loss, likely due to their right-handed firearm use, their right ear thresholds were used for both ears when rating for PPI purposes. The sum of loss of hearing was below the amount considered rateable and therefore the worker did not qualify for a permanent impairment award.

On December 15, 2017 and March 8, 2018, the WCB had conversations with the worker's children regarding the firearm usage noted in the decision letter. Both children advised the WCB the worker had not used a firearm previously. A copy of the worker's file was sent to the worker and the worker's son contacted the WCB on April 11, 2018 to discuss the claim further. The worker's son advised the WCB the worker had never shot a gun before and did not participate in outdoor activities that would have exposed them to any gunfire. Further, the worker's son suggested that the worker's hearing may be worse in their left ear as the worker held their tools while working in their left hand. The WCB advised while using tools each ear is still exposed to the same level noise and as such, there was not an occupational reason for the worker's asymmetric hearing loss.

The worker requested reconsideration of the WCB's decision to Review Office on September 18, 2023. In their submission, it was noted the worker had a language barrier and may not have understood some of the questions asked and wanted to appeal the decision they were not entitled to a permanent partial impairment award. On October 12, 2023, the Review Office determined the worker was not entitled to a permanent partial impairment award. Review Office accepted and agreed with the calculation performed by the WCB's ENT specialist and found as the worker's hearing loss was under 100 dBA, they were not entitled to a permanent partial impairment award as the loss was not rateable.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (“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.

A worker is entitled to benefits under subsection 4(1) of the Act where it is established that the worker was injured as a result of an accident at work.

Subsection 38(1) of the Act provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment."

The WCB's Board of Directors established Policy 44.90.10, Permanent Impairment Rating, along with ‘Schedule B Permanent Impairment Rating for Hearing Loss’ ("PIR Policy"). The PIR Policy provides three methods for rating a worker’s impairment of hearing. The applicable method depends on the date of the accident at issue.

Method 3 applies to:

• For new decisions regarding permanent impairment ratings relating to Impairment of Hearing with an accident date occurring on or after April 1, 2000; and

• For decisions relating to reconsiderations and reassessments for Impairment of Hearing with an accident date occurring on or after February 1, 2003.

Method 3 provides the following formula:

4.2.1 CALCULATING THE PERCENTAGE OF HEARING LOSS 

When calculating impairment due to loss of hearing, the International Organization for Standardization (ISO) audiometric calibration will be used.

1. Test each ear and record the hearing levels at 500, 1000, 2000 and 3000 Hz. Add the value of the hearing levels at 500, 1000, 2000 and 3000 Hz in each ear.

2. If the level of hearing loss is less than 100 dB in the better ear, the percentage of hearing loss in that ear should be taken as 0%.

3. Consult Table 4-1 to determine the percentage of hearing loss in each ear.

4. If the level of hearing loss falls between values on the chart, round the level to the nearest 5 dB of hearing loss. [emphasis added]

Employer's Position

The employer did not participate in the appeal.

Worker’s Position

The worker appeared in the hearing along with their son, who acted as a representative of the worker. The worker’s representative made a brief oral submission on behalf of the worker. A short written submission from the worker was also provided to the panel.

The worker’s position is that their asymmetrical hearing loss is due to their 30-year history of being exposed to noxious noises in their workplace. The worker used various machinery, jackhammers, and various construction equipment, all without using hearing protection.

In sum, the worker’s position is that their long term exposure at their workplace supports a finding that their asymmetrical hearing loss, more likely than not, arose out of and in the course of their employment and as such, their claim for a permanent partial impairment award should be acceptable.

Analysis

The issue on appeal is whether or not the worker is entitled to a permanent partial impairment award. For the worker’s appeal to succeed, the panel would have to determine that the WCB failed to apply the correct formula, or that in applying the formula, the WCB erred when calculating the percentage of hearing loss under the PIR Policy. As detailed in the reasons that follow, the panel found that the WCB erred in the application of the formula, and therefore, the worker’s appeal is granted.

The WCB’s ENT specialist opined that the worker had noise-induced hearing loss, first indicated on an audiogram dated July 21, 2017. Given this finding, Method 3 applies for the claim at issue.

Method 3 provides for a step-by-step analysis.

“Step 1: Test each ear and record the hearing levels at 500, 1000, 2000 and 3000 Hz. Add the value of the hearing levels at 500, 1000, 2000 and 3000 Hz in each ear.”

Based on the July 21, 2017 audiogram, the WCB's ENT specialist found the worker's hearing levels in the right ear were 97 decibels (dB) and in the left ear were 172dB.

Using these sums, Method 3 of the PIR Policy provides the next step in the calculation:

“Step 2: If the level of hearing loss is less than 100 dB in the better ear, the percentage of hearing loss in that ear should be taken as 0%.”

The worker’s better ear (right ear) has a rating of 97dB, while their left ear (worse ear) is rated at 172 dB. Following Step 2 of Method 3’s formula, this would result in a sub total of 0 dB for the right ear and 172 dB for the left ear.

However, the Panel finds that the WCB erred in its application of Step 2, as it appears that the WCB applied a calculation that is not expressly found in Method 3. The WCB determined that as the hearing loss was asymmetrical the hearing loss in the right ear (better ear) would be used for both ears when doing the PPI calculation.

Using this approach, it results in both ears being rated at 97 db. The WCB’s application of rounding down the ‘worse ear’ to the same rating as the ‘better ear’, is not consistent with the formula stated in the Step 2 of Method 3.

Step 2 of Method 3 states that the ‘better ear’ is to be rounded down to 0%. This step does not provide for a rounding down of the ‘worse ear’, nor does it state that both ears are to be rounded down to the same rating. The Panel therefore, is unable to accept the WCB’s determination.

Based on the evidence before the Panel and on the standard of a balance of probabilities, we are satisfied that the worker’s PPI rating has not been correctly calculated and should be recalculated based on our findings as outlined in these reasons.

The worker’s appeal is granted.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of May, 2025