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 March 26, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 55/23, dated May 12, 2023. The background will therefore not be repeated in its entirety.

The worker filed a hearing loss claim with the WCB on February 16, 2022 for gradual hearing loss they related to their employment. The WCB advised the worker on May 18, 2022 that the medical evidence on file indicated their hearing in their right ear was consistently worse than their left ear and as noise-induced hearing loss was typically symmetrical, it had been determined their claim was not acceptable. The worker requested reconsideration of the WCB’s decision to the Review Office on July 3, 2022 and on August 30, 2022, the Review Office found the worker’s claim was not acceptable. The worker then appealed the decision to the Appeal Commission. Pursuant to Decision No. 55/23, the Appeal Commission determined the worker’s claim was not acceptable on May 12, 2023.

On October 23, 2024, the worker applied to the Chief Appeal Commissioner for a reconsideration of the May 12, 2023 decision. The worker provided a September 27, 2024 report and audiogram from their treating audiologist and submitted the report contained new information regarding their hearing loss that met the criteria for reconsideration of the Appeal Commission's previous decision. The worker's treating audiologist’s report noted the worker’s body positioning while they were performing their job duties may have contributed to their asymmetric loss, with their right ear being worse than the left and was consistent with head-shadow effect.

The Chief Appeal Commissioner delegated the request for reconsideration to a Presiding Officer. On February 19, 2025 the Presiding Officer found the September 27, 2024 report from the worker’s treating audiologist contained new material and substantial evidence that was not previously before the Appeal Commission.

The request for reconsideration was granted 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 June 2, 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 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 Section 1(1) as follows:

"accident", subject to subsection (1.1), includes 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace, 

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

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 was present at the hearing, supported and represented by their spouse. The worker’s spouse made an oral submission to the panel and the worker and the spouse both provided testimony in the form of answers to questions posed by the panel. The worker’s friend and former co-worker was also present at the hearing and answered questions posed by the members of the appeal panel.

The worker’s position is that the evidence confirms that they were exposed to noxious noise in the workplace and because of that exposure, they developed noise-induced hearing loss (“NIHL”).

The worker states that hearing loss can be asymmetrical and still be caused by noise exposure. The worker is relying on the opinions of the worker’s treating Audiologist who states that NIHL can be asymmetrical and that there does not need to be a “notch” pattern.

The worker’s spouse indicated that they noticed the worsening of the worker’s hearing in the last ten to fifteen years.

The worker’s witness was a former co-worker and stated that they worked in the same environment as the worker and had an approved hearing loss claim themselves. The witness also stated that their hearing did decline some after leaving the workplace.

The worker’s position is that they have hearing loss due to exposure to hazardous noise in the workplace and their claim ought to be accepted.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the claim is acceptable. In order for the panel to find that the claim is acceptable, we would have to determine that the worker’s hearing loss is 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 evidence before the panel is that the worker has a “notched” pattern of hearing loss in their right ear, consistent with NIHL. The hearing loss to the worker’s left ear is mild and a “notch” pattern is not present.

There is evidence that the worker was exposed to noise in the workplace. However, the panel notes that not all hearing loss is caused by or the result of noise exposure in the workplace.

The worker, when questioned about their positioning around the machines they used, indicated that when they were a planer operator they would stand behind the planer, and feed the boards through with both hands. The worker advised that they operated the planer for two years before moving to a supervisory role. The worker, while in that supervisory role, indicated that they would either be walking around the workplace supervising the workers or be in their office, which was near the planer, doing paperwork.

For a claim to be accepted, there must be not only evidence of NIHL, but there must also be evidence of noise exposure in the workplace above the threshold established in the Policy. A claim for NIHL is accepted by the WCB when a worker was exposed to hazardous noise at work for a minimum of two years, based upon an average of 85 decibels for 8 hours of exposure daily.

The Audiological Evaluation dated September 27, 2024 noted that the worker’s body positioning when working on the machines may have contributed to asymmetrical hearing loss and stated that this is consistent with “head-shadow effect”.

The panel sought an opinion from the WCB medical consultant, and on April 23, 2025 the WCB Otolaryngology Consultant opined that while the head shadow effect can theoretically result in an overall reduction in the intensity of a sound to the shadowed ear, the reverberation associated with a sound as well as head movement effectively negates differences in sound levels reaching the two ears such that asymmetry is negligible.

The panel has weighed the medical evidence, and the evidence of the worker that they were standing behind the planer when feeding wood through it, and not to one side of the machine, and has determined the evidence is not sufficient to provide a basis for the head shadow effect.

After considering the evidence before it, the panel was not able to establish an occupational basis for the worker’s hearing loss. The panel acknowledges that the worker worked in a noisy environment, however, the evidence of the worker’s usage of the machines and their location within the workplace does not account for the head shadow effect. The panel accepts the principle that occupational NIHL is typically bilateral, since most noise exposures affect both ears symmetrically. The evidence before the panel does not account for the asymmetry in the worker’s hearing loss.

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

Panel Members

R. Lemieux Howard, Presiding Officer
R. Hambley, Commissioner
S. Magian, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of July, 2025