The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they do not have a rateable permanent partial impairment. A hearing was held on July 24, 2025 to consider the worker's appeal.

Issue

Whether or not the worker has a rateable permanent partial impairment.

Decision

The worker does not have a rateable permanent partial impairment.

Background

The worker has an accepted WCB claim for noise-induced hearing loss that occurred at work, with the date of accident noted to be September 11, 2024. The medical information on the worker’s file was reviewed by a WCB audiology advisor on October 24, 2024, who noted that the worker had retired from their employment in 2016 and no audiograms were available until September 11, 2024.

The review of the September 11, 2024 audiogram by the WCB’s audiology advisor indicated that the typical audiometric notch pattern indicative of noise-induced hearing loss was not present in either of the worker’s ears based on the audiogram, however calculations were performed to determine if an audiometric bulge, representing excess loss in the 3 to 6k Hz range, was present. The advisor found that “These calculations resulted in an “audiometric bulge” or excess loss of hearing in both ears, in keeping with probable NIHL (noise-induced hearing loss) in the context of sufficient confirmed noise exposure.” The audiology advisor concluded that the worker was entitled to two hearing aids based on the results of the September 11, 2024 audiogram, but the calculations completed did not result in an impairment rating for the worker. On December 2, 2024, the WCB advised the worker their claim was accepted and they were entitled to coverage for two hearing aids. However, it was noted their hearing loss was not considered rateable and they were not entitled to a permanent partial impairment rating and award.

On January 26, 2025, the worker requested reconsideration of the WCB’s decision that their hearing loss was not considered rateable for a permanent partial impairment award. In their submission, the worker noted disagreement with the calculations performed by the WCB’s audiology advisor. It was noted by the worker that the information provided by their treating audiologist included “pure tone” testing and bone conductivity testing, and that the WCB audiology advisor had used the results of both bone conduction and pure tone tests in calculating their hearing loss. The worker submitted that if the results from the bone conduction tests were excluded, they would qualify for a permanent partial impairment rating and award.

Review Office determined on March 25, 2025, the worker did not have a rateable permanent partial impairment. Review Office accepted and agreed with the opinion of the WCB’s audiology advisor and found that including the results of bone conduction testing was the appropriate and more accurate method in determining the worker’s noise-induced hearing loss. Review Office accepted the assessment by the WCB advisor and found the worker did not have a rateable impairment.

The worker filed an appeal with the Appeal Commission on April 9, 2025 and a hearing was arranged.

Reasons

Applicable Legislation and Policies

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.

Under s 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. That compensation includes awards for permanent partial impairment (“PPI”), as well as medical aid and wage loss benefits, as outlined in s 37 of the Act. Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of the Act allows the WCB to determine the PPI rating as a percentage of total body impairment and to make an award based upon each full percentage of whole-body impairment.

The WCB has established Policy 44.20.50.20, Noise-Induced Hearing Loss (the “NIHL Policy”) to address how it will adjudicate claims related to occupational hearing loss. The NIHL Policy

provides that determination of a worker’s permanent impairment is provided for in Policy 44.90.10.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the appropriate PPI Schedule attached to the Policy.

Schedule B to the PPI Policy, Impairment of Hearing, outlines three possible methods for rating impairment of hearing, the use of which is determined by the date of accident. For new decisions regarding permanent impairment with an accident date occurring on or after April 1, 2000 and for reconsiderations and reassessments with an accident date occurring on or after February 1, 2003, Method 3 applies. Under Method 3, the impairment rating is to be determined as follows:

1. Calculating the percentage of hearing loss in each ear;

2. Calculating the combined percentage of hearing loss;

3. Converting the loss of hearing to an impairment of the whole person.

To calculate the percentage of hearing loss in each ear, Method 3 requires the following process to be followed:

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.

Method 3 further provides that the WCB will compensate workers for hearing loss caused by occupational noise, but not for hearing loss caused by age and sets out a formula to do so. Method 3 also addresses the presence of tinnitus and sets out that for rating purposes, tinnitus, when secondary to noise-induced occupational hearing loss, is rated as a 2% impairment of the whole person.

Worker’s Position

The worker was not represented at the hearing. The worker presented an oral submission, made arguments on their own behalf, and answered questions posed to them by the panel. In advance of the hearing the worker submitted several pages of internet searches and links describing the differences between air conduction and bone conduction testing.

The worker’s position was that the WCB audiology advisor who reviewed their testing results erred when they used the results from two independent and separate tests, air conduction and bone conduction, in their PPI rating calculation. The worker argued that the two tests are distinct, with unique results which should not be used interchangeably. The worker submitted that the results of their bone conduction test should not have been used in the WCB’s PPI calculation and that the WCB audiology advisor’s calculations were therefore inaccurate, leading to an error in the conclusion that the worker did not have a rateable PPI.

The worker noted that based on their own calculations and interpretation of their hearing assessment, they would have been eligible for a small PPI award if their bone conduction test results had been excluded from consideration.

The worker presented a witness at the hearing, a former colleague who had been found to have a rateable PPI. The worker provided the witness’ test results to the panel in advance of the hearing. The witness appeared in the hearing only to approve the use of their testing results for the worker’s claim. The panel noted that the circumstances of that individual were different from those of the worker. The panel did not consider the test results of the witness relevant to the worker’s appeal.

The worker also raised the possibility at the hearing that they may be entitled to a PPI award as a result of tinnitus, which they had reported to the audiologist conducting their hearing assessment. That issue was not before the panel and we therefore make no related findings, but we note that there is no documentation of continuous tinnitus lasting more than two years on the worker’s file, as required by Schedule B.

Employer’s Position

The employer was represented at the hearing. The employer representative provided further medical information to the panel in advance of the hearing and made oral submissions and answered panel questions at the hearing. The employer representative spoke in support of the WCB and Review Office decisions which found that the worker does not have a ratable permanent impairment.

The further medical information submitted in advance by the employer representative was a report prepared by a WCB audiology consultant dated July 10, 2025 which included the following passages:

Difference between bone conduction and air conduction, and rationale for use: 

A comprehensive audiogram will have both air conduction thresholds and bone conduction thresholds. 

…

[I]f a patient has fluid behind their eardrum (resulting in a temporary conductive hearing loss), air conduction thresholds will be affected by this fluid, but bone conduction thresholds will show the “true” hearing thresholds that could be normal.

Using bone conduction thresholds allows us to account for any conductive hearing loss (unrelated to noise exposure) that may be present in the audiogram that is used for rating purposes, from sources such as earwax or ear infection, and base the rating on the permanent sensorineural component of the hearing loss. 

…

Is one method preferred? Why was it used in this case?

For noise-induced hearing loss claims, the better threshold (air conduction or bone conduction) for each ear is used for rating purposes, as it is the best representation of the degree of permanent sensorineural hearing loss that is present. This practice is not unique to [the worker], as we always use the best thresholds obtained for impairment rating calculations. 

…

Is there a scenario where the “alternate test” would be used?

For noise-induced hearing loss claims, air conduction thresholds would be used if bone conduction thresholds were not available, or bone conduction thresholds were marked as higher (worse hearing) than air conduction, which would not be an accurate representation of hearing.

Analysis

The issue on appeal is whether or not the worker has a rateable permanent partial impairment. 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 PPI Policy. As detailed in the reasons that follow, the panel found that the WCB applied the correct formula, without error, and therefore the worker’s appeal is not granted.

The WCB is bound to apply the PPI Policy with respect to calculating permanent impairment ratings as a percentage of whole body impairment. The PPI Policy sets out that impairment calculations are to be made as set out in the Policy and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the appropriate PPI Schedule. In this case, where the calculation of hearing impairment is at issue, the appropriate PPI Schedule is Schedule B.

The panel reviewed and considered the report of the WCB audiology advisor dated October 24, 2024 which described how the worker’s PPI rating was calculated. Based on the audiogram dated September 11, 2024, which is the only audiogram on record for the worker, the WCB audiology advisor determined that the worker had noise-induced hearing loss. Given this finding, Method 3 applies for the claim at issue.

The WCB audiology advisor then determined that the worker's hearing levels in both the right ear and the left were 98 decibels (dB) after adjustment for the worker’s age. The percentage of hearing loss for impairment rating purposes was therefore calculated as 0%. Bone conduction test results were used in the calculations where they were better than air conduction test results. 

The worker acknowledged on questioning that the WCB audiology advisor’s PPI calculations were accurate, when considered in context of the WCB policy to include bone conduction test results where they are better than air conduction test results. The worker confirmed that their issue was with this particular WCB practice, rather than the specific calculations performed. The worker reiterated their view that bone conduction tests are not an accurate representation of hearing and should not be relied upon in PPI calculations.

The panel places significant weight on the opinion of the WCB consultant dated July 10, 2025. Their report provided a reasoned analysis of why the WCB uses the “best” hearing test result in PPI calculations, whether based on bone conduction or air conduction. The report also confirmed that this practice applies to all workers when both bone conduction and air conduction test results are available, with some specific exceptions which are not applicable in this case.

The panel accepts the WCB consultant’s explanation that using the best hearing test result is the most accurate measure of hearing loss available, and finds the WCB practice in this respect to be reasonable and justified.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s permanent partial impairment rating has been correctly calculated using the appropriate test results. The worker’s appeal is therefore not granted.

Panel Members

M. Murray, Presiding Officer
D. Rhoda, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

M. Murray - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of August, 2025