The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on December 2, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On December 9, 2016, the worker submitted a Worker Hearing Loss Report (the “Report”) to the WCB reporting a gradual hearing loss they attributed to being exposed to 80 dBA level noise for 8 hours a day from 1962 to 1976 while employed with the employer. On the Report, the worker noted they had some normal childhood illnesses but had not had an injury or surgery to their ears and had occasional recreational exposure to noise. On the Work History Summary submitted with the Report the worker noted that they worked in the central office area of the employer’s job site with no hearing protection available from July 1962 to September 1976, where they were exposed to loud noise for 8 hours per day. An audiogram conducted on November 29, 2016 was also submitted which indicated that the worker reported a slight decline in their hearing approximately 5 years prior and had a history of exposure to loud noise without hearing protection during their employment. The audiogram indicated the worker had moderate to moderately severe sensorineural hearing loss and recommended bilateral hearing aids.

In a discussion with the WCB on January 6, 2017, the worker confirmed that they experienced gradual hearing loss over time, but the loss had been worsening over the last couple of years.

The worker reported that they had a random hearing test conducted while they were employed approximately 20 years ago and believed they were told they had hearing loss at that time but noted they had not reported their hearing difficulties to the employer. The worker also confirmed the information contained in their report and advised the WCB they were a left-handed shooter, that hunted 2 weeks per year during hunting season, only shooting 1 to 2 shells but did not wear hearing protection, only when target shooting. The worker advised the WCB that they worked in the employer’s central office from 1962 to 1976, where there was loud noise for 8 hours a day. From 1976 until their retirement in 1995, they worked in an office environment and were not exposed to noise. After their retirement, the worker took a position with their union in an office and was also not exposed to noise. The WCB advised the worker of the minimum thresholds of exposure to noise at 85 dBA or higher, for 8 hours per day, for a minimum duration of 2 years for acceptance of noise-induced hearing loss under the WCB’s policies. The worker was advised further investigation was required.

The employer provided the WCB with a listing of the different positions the worker held with them on February 21, 2017, and confirmed the worker had been employed from July 23, 1962 to June 23, 1995. It was further confirmed that the worker performed their job duties in the central office from July 1962 to September 1976. Also, on February 21, 2017, the employer provided the WCB with noise level testing from various job sites, with the noise levels in various central offices noted to be below 85 dBA on a daily average. The worker’s WCB adjudicator placed a memorandum to the worker’s file on the same date with their rationale for the noise levels the worker would have been exposed to. The adjudicator included the relevant portions of the noise level testing into the memorandum and concluded that the worker had not been exposed to sufficient noise as set out in the noise-induced hearing loss policy. The worker was provided with a formal decision letter on February 21, 2017, advising that their claim was not acceptable.

The worker requested reconsideration of the WCB’s decision to the Review Office on July 11, 2024. In their submission, the worker provided further information regarding their job duties in the central office, noting some of those duties included weekly testing of a diesel generator, maintenance of a large industrial electric generator, maintenance of an industrial air compressor and visually and audibly addressing an equipment failure alarm, all of which produced noise over the levels previously provided by the employer. The worker further noted these job duties were performed during off-peak hours. In addition, the worker noted their treating healthcare providers supported their hearing loss was the result of working in a noisy environment.

The Review Office upheld the WCB’s decision on July 22, 2024 and determined the worker’s claim was not acceptable. The Review Office placed weight and relied on the noise level testing information provided by the employer and found the worker’s noise exposure while working in the central office ranged from 73 to 83 dBA. In addition, the Review Office found the worker reported their hearing difficulties started approximately 15 years after their retirement from work, and noted hearing loss does not worsen once a worker had been removed from the noise exposure. As such, the Review Office found the worker had not been exposed to the minimum requirement of 85 dBA during 1962 to 1976 as required by the WCB’s policies.

The worker filed an appeal with the Appeal Commission on August 16, 2024 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 27, 2025, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies 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.

Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy"), has been established by the WCB and applies to claims arising from long-term exposure to occupational noise that causes hearing loss. These claims are called noise induced hearing loss claims. The Policy 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 at the hearing and represented themselves. The worker made an oral submission in support of their appeal and also answered questions posed by members of the appeal panel.

The worker’s position is that they have permanent hearing loss and relies on the evidence that they have been advised by their treating professionals that their hearing was impaired by a noisy work environment. The worker states that their claim should be acceptable as they were exposed to hazardous noise while at work.

The worker states that they were in denial about their hearing loss and that the hearing loss developed while they were still employed. The worker says that their spouse noticed their hearing was deteriorating and it took several years before the worker went for hearing testing.

As the worker was exposed to noise in the workplace and has hearing loss, the worker believes that the claim should be accepted, and the appeal granted.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the appeal panel is whether the claim is acceptable. For the worker’s appeal to be successful, and the claim to be acceptable, the panel would have to determine that the worker’s hearing loss is, on the balance of probabilities, the result of exposure to noise in the workplace. The panel was unable to make such a finding for the reasons that follow.

For a claim of noise induced hearing loss to be accepted, the panel must find that there was not only evidence of sensorineural hearing loss, but that there was also evidence of noise exposure in the workplace above the threshold set out in the Policy, namely exposure for a minimum of two years to hazardous noise of 85 decibels for 8 hours on a daily basis.

The panel accepts that the worker has sensorineural hearing loss, however despite the worker’s evidence at the hearing that the hearing loss occurred while they were still working, the evidence of the treating ENT physician, at an appointment in June 2017, is that the hearing has become worse in the past 4-5 years, which would have been in or about 2011, approximately 16 years after their retirement.

The evidence before the panel is that the worker’s hearing difficulties started many years (upwards of 10 years) after their retirement. The panel accepts the position noted by the Review Office that hearing loss does not worsen once a worker has been removed from the noise exposure.

The panel considered the environment within which the worker worked. The worker provided evidence that their regular duties as a journeyman included working in the switch room. The worker stated that there was an alarm system that would ring constantly during their shifts, and that the alarm would continue to ring until the issue was taken care of.

The worker also stated that they provided back up support to the power room assistant. They indicated that there was a regular power room assistant but that at times they needed someone to fulfill these duties when the regular assistant was unable/unavailable. The worker’s duties in this role were, among others, to work with an air dryer and diesel generator. The worker’s evidence is that the diesel generator was the backup power source and that they would run it once a week for eight hours to perform tests and checks on it. The worker denies wearing hearing protection and indicated that it was so loud they needed to use hand signals to communicate when it was running.

The panel acknowledges that the worker’s work environment was noisy and further, that the noise in some parts of the workplace was excessive, however, the medical evidence before the panel does not confirm the worker suffered noise induced hearing loss.

The evidence supports that the worker now has sensorineural hearing loss and that there was a history of workplace noise exposure, however not all hearing loss is caused by or the result of noise exposure in the workplace. Further, not all workers experience hearing loss as a result of such noise exposure.

The panel finds that the evidence does not support a finding of noise induced hearing loss and relies specifically on the report of the treating ENT physician from June 2017 which opines that the worker has developed presbycusis, or age-related hearing loss.

The panel is unable to determine based on the evidence before us and on the standard of a balance of probabilities that the worker’s hearing loss is the result of their workplace exposure to noise. It is therefore determined that the claim is not acceptable, and the worker’s appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of May, 2025