The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that they are not entitled to a reassessment of their hearing loss for the purpose of reviewing entitlement to a permanent partial disability (“PPD”) rating and that they are not entitled to a PPD rating or award. A file review took place on May 22, 2025 to consider the appeal.

Issue

1. Whether or not the worker is entitled to a reassessment of the hearing loss for the purpose of reviewing entitlement to a permanent partial disability rating and/or award; and 

2. Whether or not the worker is entitled to a permanent partial disability rating and/or an award.

Decision

1. The worker is not entitled to a reassessment of their hearing loss for the purpose of reviewing entitlement to a permanent partial disability rating and/or award; and 

2. The worker is not entitled to a permanent partial disability rating and/or an award.

Background

The WCB accepted the worker’s claim for hearing loss arising out of exposure to noxious noise at work on April 11, 2008 and at the same time, approved funding for a right hearing aid only. The worker successfully appealed that decision as outlined in Appeal Commission Decision No. 48/24 in which the appeal panel determined the worker was also entitled to a left hearing aid.

In response to the worker’s inquiry in October 2024 as to whether they were entitled to a PPD award, the WCB advised that based on a review of the worker’s claim on April 9, 2008, the WCB’s Ear, Nose and Throat (ENT) specialist determined the worker’s hearing loss was insufficient to entitle them to a PPD rating. By letter dated November 14, 2024, the WCB confirmed the decision of April 11, 2008 that the worker’s hearing loss was not rateable and therefore they did not qualify for a PPD award.

On February 14, 2025, the worker requested Review Office reconsider the WCB’s decision, submitting they were also entitled to reassessment of their hearing loss for the purpose of determining their entitlement to a PPD rating as their hearing progressively worsened since 2008. Review Office determined on March 5, 2025 that the worker was not entitled to a PPD rating and/or award and further, was not entitled to reassessment of their hearing loss for the purpose of determining such a rating or award.

The worker filed an appeal with the Appeal Commission on April 7, 2025 and a file review took place.

Reasons

Applicable Legislation and Policy

The panel is bound by the provisions of The Workers Compensation Act (the “Act”), as well as by the provisions of the policies established by the WCB. The provisions of the legislation and regulations in effect as of January 17, 1977, being the established date of accident, are applicable.

The Act provides in s 4(1) that the WCB shall pay compensation to a worker who has sustained personal injury by an accident arising out of and in the course of employment. That compensation may include compensation for a permanent partial disability resulting from the injury, under s 32(1) of the Act. Section 32 also outlines the method for calculating the amount of compensation for a permanent partial disability.

The WCB established Policy 44.90.10.02, Permanent Impairment Rating Schedule (the “Policy”) to outline how impairment or disability ratings are to be established. The Policy sets out that when possible and reasonable, impairment ratings will be established strictly in accordance with the schedule set out in Appendix A to the Policy. In relation to impairment of hearing, the schedule sets out the following:

“When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1000, 2000 and 3000 hertz.

In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear and the hearing loss in decibels is converted into percentage of impairment in accordance with the … schedule. …

In bilateral deafness, the poorer ear is rated according to the scale and the better ear is rated according to the scale, multiplied by five. The sum of the two give the combined rating.”

Worker’s Position

The worker represented themselves in this appeal. The worker’s position, as set out in their Appeal of Claims Decision form dated April 7, 2025, is that they are entitled to a review of the degree of their hearing loss impairment as their condition has worsened since that impairment rating was calculated and as more than two years have passed since the previous assessment, during which time their hearing loss has progressively increased. The worker noted they have not had any noise exposure since their retirement in 2008 and that at that time, they believe they sustained a permanent impairment or disability in relation to their noise-induced hearing loss.

Employer’s Position

The employer did not participate in the appeal.

Analysis

There are two questions for the panel to determine in this appeal brought by the worker in relation to their accepted claim for noise-induced hearing loss arising out of their workplace exposure to noxious levels of noise. First, is the worker entitled to a reassessment of their hearing loss for the purpose of determining their PPD rating and any entitlement to a related award, and second, is the worker entitled to a PPD rating and related award. For the worker’s appeal on the first question to succeed, the panel would have to find that the worsening of the worker’s hearing loss is the result of the compensable injury which arose out of their occupational noise exposure. On the second question, for the worker’s appeal to succeed, the panel would have to find the WCB failed to correctly determine the worker’s PPD rating or that the worker is entitled to a related award. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied.

The Act clearly provides in s 32(1) that compensation for a PPD arises out of an impairment that results from the compensable injury; that is, there must be a causal relationship between the impairment and the injury arising out of the occupational exposure to noise. The panel finds that such a relationship must also exist in relation to any increase of impairment and the worker’s occupational noise exposure. We considered that the worker’s exposure to noxious noise in the workplace ended in 2008 upon their retirement and that the worker indicated they had no further exposure to noxious noise after that time. The evidence of audiological testing of the worker’s hearing loss on March 31, 2008, a few months after the worker retired on January 1, 2008 establishes the extent of the worker’s hearing loss related to their occupational exposure to noise. The panel accepts and relies on those audiological test results. There is also evidence that the worker’s hearing loss has subsequently increased, as confirmed by the 2023 audiological test results; however, given that the worker had no additional occupational exposure to noxious noise after January 2008, the panel is satisfied that these more recent findings do not support a causal relationship between the worsening of the worker’s hearing loss in the years since retirement and their prior occupational noise exposure.

As the panel is satisfied that there is no causal relationship between the increase in the worker’s hearing loss since 2008 and their pre-2008 workplace exposure to noxious noise, we do not agree with the worker that they are entitled to a further hearing assessment for the purpose of reviewing their entitlement to a PPD rating and award.

The panel also considered whether the WCB correctly determined that the worker is not entitled to a PPD rating and related award. As noted above, the Policy establishes a process which the WCB is required to use, when possible and reasonable, to calculate the degree of an impairment or disability for the purposes of determining a PPD rating. The panel reviewed the Policy requirements and compared these to the assessment of the worker’s hearing loss impairment as outlined in the memorandum to file from the WCB ENT consultant dated April 9, 2008. We noted that this assessment was based upon the March 31, 2008 audiological testing which were found to be valid testing results for these purposes. The panel is satisfied that the ENT consultant relied upon these testing results in making their calculations to determine the degree of the worker’s hearing impairment, as related to their workplace exposure to noxious noise prior to their retirement in 2008. We accept and rely upon the ENT consultant’s conclusions, having confirmed that they correctly undertook the process to establish that the worker’s hearing loss at that time was not rateable under the provisions of the Policy.

Based on the evidence before the panel, and applying a standard of a balance of probabilities, the panel is satisfied that there is not a causal relationship between the worsening of the worker’s hearing loss and the compensable injury arising from their occupational noise exposure, and further, that the WCB correctly determined the worker did not have a rateable PPD and therefore is not entitled to any PPD award. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of May, 2025