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 file review was held on May 21, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On September 17, 2012, the worker submitted a Worker Hearing Loss Report to the WCB, relating their gradual hearing loss, which they attributed to exposure to noxious noise while employed. The worker noted they were exposed to continuous noise and did not wear hearing protection. In terms of recreational noise exposure, the worker noted they went snowmobiling most weekends during the winter in 1985 to 1993 and fishing in a power boat most summer weekends for 25 years. As well, the worker noted they hunted for approximately 47 years. On their Work History Summary, the worker listed their employers from 1967 to their retirement on July 31, 2006. The worker indicated they were exposed 8 hours per day to noise at each employer however, noted their hearing “seemed fine”.

The WCB received a copy of a September 25, 2012 report from the worker’s treating audiologist. The audiologist noted the worker was seen on May 30, 2012, reporting routine exposure to very loud noise, with intermittent noise protection use and a history of recreational noise exposure as a hunter. The audiologist indicated the worker reported “…difficulty communicating verbally in the presence of background noise.” It was noted the worker likely had hearing loss due to noise exposure together with some presbycusis. A hearing aid for the worker’s left ear was recommended and it was noted the worker would likely need a second hearing aid in the future.

The WCB spoke with the worker on October 8, 2012 to discuss their claim. The worker confirmed the information on their Hearing Loss Report and Work History Summary and advised of difficulties with their left ear, including difficulty hearing and ringing. On October 22, 2012, the WCB spoke with the president of one of the companies the worker previously worked for and confirmed the worker’s employment and that the worker would have been exposed to noise levels over 85 dBA.

The worker’s file, along with a May 30, 2012 audiogram provided to the WCB on October 10, 2012, was reviewed by the WCB’s Ear, Nose and Throat (ENT) specialist on November 2, 2012. The specialist opined the worker had asymmetric hearing loss, with their left ear worse than the right. It was provided the worker’s noise-induced hearing loss (“NIHL”) was due to their right-handed firearm use and not related to their employment. On December 7, 2012, the WCB advised the worker their claim was not acceptable as it had been determined their hearing loss was not related to their employment.

The worker requested reconsideration of the WCB’s decision to deny their claim to Review Office on October 17, 2024. The worker submitted a copy of an April 16, 2019 audiogram which indicated mild sloping to severe sensorineural hearing loss and recommended bilateral hearing aids. In addition, the worker noted they were exposed to loud noise while performing their job duties and the audiogram confirmed their need for hearing aids. At the request of Review Office, the worker’s file was reviewed by a WCB audiology advisor on November 6, 2024. With respect to the worker’s right ear, the audiologist provided the May 30, 2012 audiogram was not indicative of typical patterns of NIHL and that there is insufficient audiometric evidence to support a material component of NIHL in the right ear.

Review Office determined on November 12, 2024, the worker’s claim was not acceptable. Review Office found the evidence on file supports the worker’s hearing loss in their left ear was not related to their employment and accepted the opinion of the WCB audiology advisor that the worker’s hearing loss in their right ear was not indicative of NIHL. As such, Review Office further found the evidence supported the worker may have been exposed to noise at work that could have led to hearing loss, however, the medical evidence did not support the worker had NIHL during the time period they were employed.

The worker filed an appeal with the Appeal Commission on April 15, 2025 and a file review was arranged.

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 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.

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’s position is set out in the Worker Appeal of Claims Decision form dated April 7, 2025. The worker’s evidence is that they worked for almost 40 years in a noisy environment and that this is a sufficient period of time to establish a claim for NIHL.

The worker states that the WCB does not have sound levels recorded for the employer and notes that, according to the internet, the sound level of the presses used in their workplace exceeded 90 decibels.

The worker expressed concern that the employer named in the decision of the Review Office was incorrect and therefore states that the claim was not properly reviewed.

The worker is seeking a finding that their claim is acceptable.

Employer’s Position

The employer did not participate in the appeal.

Analysis

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

With respect to the worker’s concern that the incorrect employer was referenced in the Review Office decision, the panel notes that the employer referenced is the employer that has an account with WCB. The employer that the worker worked for is an associated firm of the account holder. The panel is therefore satisfied that the WCB reviewed the correct employer in their decision-making process.

The panel acknowledges and accepts that the worker worked in a loud environment. However, the panel is unable to find that that the worker suffered NIHL as a result of his work or job duties.

The panel considered that hearing testing did not occur prior to the worker’s retirement, and the only hearing test occurred six years post retirement. The evidence before the panel is that the worker advised the WCB in October 2012 that they noticed hearing loss about two years prior, which would have been approximately four years after their retirement in 2006. There is no independent evidence regarding the worker’s hearing while they were working.

The medical evidence before the panel is that the worker’s hearing loss is asymmetric, with the right ear being worse. There is insufficient evidence to support an occupational explanation for unilateral NIHL in the worker’s left ear. The WCB Audiology Consultant opined in the Healthcare Service Request of November 6, 2024, that the evidence does not support the worker’s hearing loss in their right ear to be as a result of NIHL. The panel accepts the opinion of the Audiology Consultant who considered whether there was NIHL in an environment of presbycusis.

The panel relies on the opinion of the Audiologist from the Hearing Evaluation Report dated May 30, 2012, who commented that the asymmetrical loss was consistent with a combination of noise exposure together with presbycusis. There is no evidence before the panel to indicate what caused the hearing loss, however the nature of the loss, being asymmetrical and the lack of a typical notched pattern, does not support a occupational explanation.

As a result, the panel finds, on a balance of probabilities, that the worker did not suffer a noise-induced hearing loss during the course of his employment due to exposure to high levels of noxious noise as set out in the Policy.

The panel therefore concludes 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 17th day of July, 2025