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 February 19, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on December 12, 2022, reporting a sudden hearing loss they related to their employment. The worker reported dizziness and continuous ringing in their ears and noted they had yearly hearing checks through the employer. On the Work History Summary, also submitted on December 12, 2022, the worker noted they were exposed to wood working machinery for 8 hours per day, 5 or 6 days per week from September 2022 to December 2022 with hearing protection only worn sometimes while employed with the employer. The worker indicated the same information for a previous employer they worked for from September 2021 to September 2022. On December 13, 2022, the worker provided the WCB with a more extensive list of their previous employers.

On December 15, 2022, the WCB spoke with the worker to discuss their claim and gather further information. The worker advised they started to notice their hearing difficulties, including ringing in both their ears, approximately a year and half previously and had gone for a hearing test. The worker noted their hearing loss had become so bad they were currently experiencing constant headaches and dizziness. The worker advised the WCB their hearing had been tested at work over the last 30 years and provided information on the medical treatment they had sought over the previous year. With respect to non-occupational noise exposure, the worker noted they had not shot a gun in 30 to 40 years, only hunting 3 or 4 days in total. The worker then provided the WCB with details regarding their employment history, noting over the past 7.5 years, their work was primarily with the employer. The worker provided they were exposed to loud noise for 8 hours a day, with hearing protection worn all of the time in the last few years as they noted their head started to hurt while at work and prior to that, inconsistent use of hearing protection. The WCB advised the worker of the minimum threshold for accepting hearing loss claims and advised further investigation was required.

The WCB received a copy of a February 18, 2022 audiogram for the worker. The treating audiologist provided the worker had moderate sensorineural hearing loss in the 250Hz to 1000 Hz range and a mild loss from 2000Hz to 8000Hz bilaterally and recommended hearing aids for both ears. It was also recommended the worker be referred to an Ear, Nose and Throat (“ENT”) specialist for follow-up regarding a popping sensation in their ears. The WCB received a report from the worker’s treating family physician on December 17, 2022, noting the physician had referred the worker to an ENT specialist due to an abnormal hearing test but noted a second referral was made as the worker was not happy with the first ENT specialist. A report from the worker’s treating ENT specialist was received on December 21, 2022. The report noted the worker was seen on April 22, 2022, presenting with “…chronic bilateral hearing loss and ringing in both ears.” The specialist indicated the worker’s history of being exposed to “…high-intensity workplace noise” without hearing protection. The ENT specialist opined the audiograms found the worker had bilateral sensorineural hearing loss, with a significant history of occupational noise exposure. Included with the report was a copy of the February 18, 2022 audiogram and a further audiogram conducted on December 16, 2022, which noted a change in the worker’s hearing from February 2022 and indicated the worker had a “…mild sloping to moderate sensorineural hearing loss for both ears” and again recommended hearing aids for both ears.

A report from a second ENT specialist for an appointment on October 11, 2022 was received by the WCB on December 19, 2022. After performing otoscopy and audiological testing on the worker, the second ENT specialist opined the worker had bilateral sensorineural hearing loss and recommended hearing aids for both ears.

The employer provided the WCB with an Employer Hearing Loss Report on December 23, 2022. The employer noted the worker had reported their hearing difficulties to the employer on December 9, 2022. It was noted the worker worked in an area of the employer’s job site which had the lowest sound levels and would have been exposed to loud noise for maybe 30 minutes per day. The employer advised the worker primarily used hand tools, and occasionally used tools that would generate greater noise. The employer noted annual hearing tests were done. On January 6, 2023, noise level testing from the employer’s job site on April 3, 1998 was placed to the worker’s file. On January 12, 2023, audiograms for the worker from 2015 to 2020 were also placed to the worker’s file.

On March 22, 2023, the WCB received a report from a third ENT specialist. The specialist enclosed a copy of their March 15, 2023 report and noted they had reviewed prior audiograms and opined they indicated “…hearing loss compatible with noise exposure.” The March 15, 2023 report noted the worker’s reporting of “…some hearing loss for many years”, “…an extensive history of noise exposure…” and not always being able to wear hearing protection due to the nature of their job duties. The specialist reviewed the worker’s hearing tests and found the “…pattern of hearing loss up until 2021 looks compatible with noise exposure”, with the worker reporting a progressive worsening of their hearing loss over the previous couple of years, along with significant tinnitus. The worker also reported difficulty with balance, which has also gotten progressively worse, particularly with walking. A repeat audiogram taken that day noted a moderate sensorineural hearing loss in the right ear and a moderate to severe loss on the left. The specialist recommended hearing aids for both ears and referred the worker to a vestibular physiotherapist for their reported balance, focusing and reading difficulties.

The WCB’s ENT specialist contacted the third ENT specialist on August 14, 2023 to discuss the worker’s claim. The worker’s treating specialist advised the WCB’s specialist they had reviewed audiograms for the worker back to 2011. It was noted by the WCB’s ENT specialist those audiograms were not on the worker’s WCB file and requested the WCB case manager obtain those audiograms. The WCB’s ENT specialist placed an opinion to the worker’s file on May 1, 2023. The specialist provided a detailed review of the worker’s audiograms from 2015 to the present and opined the audiograms supported the worker had bilateral hearing loss, however, did not support the worker’s current hearing difficulties were as the result of exposure to noxious noise at work. After discussion with the worker’s third treating ENT specialist, it was noted there were audiograms dating back to 2011 available and a further review would be undertaken once those audiograms were obtained. The worker’s third treating ENT specialist provided those audiograms to the WCB on May 8, 2023. A further review of the worker’s file was conducted by the WCB ENT specialist, on May 26, 2023 after discussion with the worker’s treating ENT specialist on May 24, 2023. The specialist noted the only audiograms not already on the worker’s WCB file were a June 24, 2011 audiogram which indicated normal hearing bilaterally and a November 2, 2021 audiogram which indicated a bilateral hearing loss but did not have an “…audiometric notching of noise-induced hearing loss present…”. The specialist provided there was no change to the previous opinion the audiograms provided were not consistent with noise-induced hearing loss. On May 29, 2023, the WCB advised the worker that their claim was not acceptable as it had been determined the medical evidence did not support their hearing loss was causally related to noise exposure at work.

The worker requested reconsideration of the WCB’s decision to Review Office on August 9, 2023. In this submission, the worker noted their treating healthcare providers supported their hearing loss was caused by work, which was also supported by the various audiograms. Review Office determined on October 26, 2023, the worker’s claim was not acceptable. Review Office accepted and agreed with the WCB ENT specialist’s reviews of the medical evidence on the worker’s file and found that while the worker had been exposed to loud noise while at work, the evidence did not support the worker sustained an injury in the course of or arising out of their employment.

The worker filed an appeal with the Appeal Commission on November 22, 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 September 4, 2025, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The panel is bound by The Workers Compensation Act (“Act”), regulations 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.

A worker is entitled to benefits under subsection 4(1) of the Act where it is established that the worker was injured as a result of an accident at work.

The Act sets out the definition of an accident in s 1(1) as including:

(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 "NIHL Policy"). The NIHL Policy outlines the WCB's approach to claims arising from long-term exposure to occupational noise that causes hearing loss.

The NIHL Policy provides that 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”.

Employer's Position

The employer did not participate in the appeal.

Worker’s Position

The worker appeared in the hearing represented by legal counsel. The worker’s counsel made oral and written submissions on behalf of the worker, and the worker provided testimony in answer to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the evidence confirms that the worker was exposed to noxious noise in the workplace and developed noise induced hearing loss (“NIHL”) as a result of that exposure, from their 30-year career as a cabinet maker, ending in 2022. As such, the worker’s claim should be accepted.

The worker’s counsel outlined that the worker had been employed as a cabinet maker, with their first employer from 2004 to 2006, 2015 to 2020, and 2022. In the early years of their employment, the worker did their job without hearing protection and that the worker sat within 20 feet of very loud dust collection vents that were on, non-stop eight hours a day.

The worker’s counsel relies on 14 audiograms spanning from 2011 to 2023. In particular, a change in the December 2015 audiogram that shows mild changes in both ears, with moderate changes in the worker’s right ear measuring 45dB at 6000Hz. The worker’s legal counsel also noted that the worker’s audiogram dated November 2, 2021 is evidence that the worker’s hearing is worsening from their baseline 2011 test. In particular, the worker’s legal counsel places significant reliance on a letter from the worker’s ENT who opined that the worker had an extensive history of exposure having worked as a cabinet maker for over 30 years, and that the worker’s hearing loss has progressed.

Lastly, the worker’s legal counsel relies on the employer’s history of not providing their workers with appropriate hearing protection. The worker notes that the employer has a number of citations and improvement orders from Workplace Safety and Health. The worker’s counsel noted that the employer had a history of over-exposing their workers to excessive noise. In 1998 a sound-level survey was conducted of the employer which found sound levels exceeding 80 decibels (with an average of 85.025dB in the four tested areas).

The worker testified to the nature of their work and the fact that they did not regularly use hearing protection throughout their working career. They also testified that they were off work in 2020, and that’s when they started to notice changes in their hearing.

In sum, the worker’s position is that the evidence supports a finding that the worker’s hearing loss more likely arose out of and in the course of the worker’s employment and as such, the claim should be acceptable.

Analysis

The issue on appeal is whether the claim is acceptable. To find that the claim is acceptable, the panel would have to determine on a balance of probabilities that the worker has hearing loss, and that 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 and arguments before us.

The panel adheres to commonly accepted principles in evaluating claims for occupational NIHL. The panel accepts that a primary characteristic of occupational NIHL is that noise should affect hearing equally (both ears), unless accounted for by particular occupational exposure, and that once removed from noxious exposure, the loss does not progress (or repair). The panel also recognizes that not all hearing loss is caused by or the result of noise exposure in the workplace. Further, not all workers experience hearing loss from such workplace noise exposure.

The worker’s audiograms from 2015 to 2020 were provided to the panel. The panel has carefully considered the testimony of the worker, and reviewed the audiograms on file. For that period of time, the changes in the workers’ hearing levels were within 10 decibels.

The worker testified that there have been no discernible changes to the kind of work that they carried out as a cabinet maker. There was no evidence presented that would suggest a material increase in the intensity of occupational noise that the worker was exposed to. Despite the relatively stable noise conditions in the worker’s work environment, and the increased usage of hearing protection, the worker’s audiograms disclose an increase in the worker’s hearing loss in 2021.

The worker's audiograms were examined by the WCB’s ENT specialist who found inconsistencies in the worker’s audiograms. In particular, the worker’s audiograms do not present the patterns usually found in occupational NIHL. The WCB’s ENT opined in their May 9, 2023 report that:

“The notching in the left ear is evident at 6000 Hz. There is less consistent notching on the right side. In contrast to the left ear, notching is only evident in the right ear on the December 7, 2015 and March 29, 2019 audiograms at 6000 Hz.

This asymmetry is not in keeping with occupational noise induced hearing loss (NIHL) unless an occupational basis for same is evident

Other inconsistencies are observed in the audiograms, as follows:

• The lack of consistent notching as well as the fluctuation of hearing thresholds obtained across similar frequencies from year to year are not in keeping with NIHL.

• The significant low frequency loss seen in these audiograms indicates an alternative process causing the hearing loss as opposed to a NIHL. Specifically, in early NIHL, average hearing thresholds at the lower frequencies of 500, 1000 and 2000 Hz are better than averages at 3000, 4000 and 6000 Hz. This is not consistently seen in [the worker’s]' audiograms. 

…

The only comprehensive audiogram undertaken by an audiologist (dated Dec 16, 2022) shows a bilateral symmetric moderate hearing loss that is uniform across all frequencies, with no evidence of notching.”

On May 25, 2023, additional audiograms were reviewed by the WCB’s ENT. The WCB’s ENT also consulted with the worker’s ENT specialist, and the consultation concluded that “there was inconsistency in the audiograms to support a noise induced hearing loss”. An addendum to the WCB's ENT’s report was provided to the panel, which concluded that:

“The additional audiometric assessments of June 24, 2011 and November 2, 2021 are not consistent with noise induced hearing loss.

As such, there is no change in the Summary provided in my May 1, 2023 review.”

The panel also sought clarification from the worker’s ENT specialist. In particular, the panel sought the rationale as to why the worker’s ENT specialist concluded that the worker’s “significant history of occupational noise exposure” was the cause of the worker’s hearing loss, despite the worker’s audiograms lacking a ‘reverse check’ notch pattern (typical of occupational noise exposure). The worker’s ENT replied on May 12, 2025 with the following explanation:

“It is true to state that the 4K notch is commonly seen and accepted as an indication of noise induced hearing loss.

It is also in my opinion true to state that this is not universally seen in all cases and there are reports in the literature which supports this. I will not be submitting further documentation as to specific references.

My rationale also reflects the fact that I have 30 years of experience in seeing many 100s of patients with occupational noise exposure and not all of them will have a typical 4K notch.”

The panel provided the said response to the WCB’s ENT specialist for comment, and sought an opinion as to the rationale provided by the worker’s ENT specialist. On June 18, 2025, the WCB’s ENT provided their opinion and the WCB’s ENT replied with the following:

“1. [The worker's] noise exposure began in 1976. A hearing assessment performed in 2011 was normal. 

…

2. [The worker's] hearing assessments performed between 2015 and 2021 showed sporadic and inconsistent signs of audiometric notching that often alternated from side to side and would be present and subsequently absent when comparing one hearing assessment to a subsequent or previous hearing assessment.

…

It is widely medically recognized that audiometric notching is the hallmark finding of NIHL.

The American College of Occupational and Environmental Medicine (ACOEM) 2018 Guidance Statement on Occupational Noise-Induced Hearing Loss represents the standard for defining the principal characteristics of occupational noise induced hearing loss. According to the 2018 ACOEM Guidance Statement, the first sign of occupational NIHL is audiometric notching.

A notched audiogram, together with a positive history of material noise exposure, is a clinical sign of NIHL.

The absence of an audiometric notch mitigates the likelihood of noise induced hearing loss to account for an individual's hearing loss.”

The panel considered both responses from the respective ENT specialists. In weighing the evidence, and the medical opinions on file, the panel prefers the WCB’s ENT’s rationale for how a finding of NIHL is established. In particular, the requirement that audiometric notching be apparent in an audiogram.

The panel accepts the WCB’s ENT’s medical opinion that NIHL is normally represented by a reverse check notch, which is not present in the worker’s audiograms. While the worker’s ENT specialist asserts that it is not always the case that a notch is present, they provide no evidence to support that assertion.

The worker’s legal counsel provided a response to the WCB’s ENT specialist opinion on August 22, 2025. The worker’s legal counsel relayed the following points. First, it is undisputed that the employer’s work environment exposed its workers to noxious noise, and that the worker has hearing loss, and hearing aids have been recommended for the worker by at least three treating physicians.

Second, there is no alternative explanation provided by WCB’s ENT for the worker’s hearing loss. Section 4(5) of the Act requires a presumption that an injury be presumed to have occurred in the workplace unless a contrary explanation is proven.

And thirdly, that the worker’s symptoms of hearing loss, tinnitus, loss of balance, and headaches occurred within the ten-year period when they began working in their last role with the employer, and where the work environment was significantly noisier than their prior position as a finish carpenter.

The panel appreciates the position provided by the worker’s counsel in their response. While there is evidence of the worker’s current condition of a sensorineural hearing loss, and a history of workplace noxious noise exposure throughout their 30-year career, the medical evidence provided to the panel does not support the conclusion that the worker’s hearing loss is the result of noise exposure at work. The panel was not provided any audiograms that would evidence a finding of NIHL.

To address the worker’s argument that there ought to be a presumption that their hearing loss was due to their exposure at work, the panel notes that in in order for the presumption to apply under section 4(5) of the Act, the panel must establish the accident "arises out of the employment" or "occurs in the course of the employment". For the reasons discussed above, the panel is unable to make either finding and the presumption does not apply.

It is the panel’s belief that there could be multiple causes of hearing loss. It is not the panel’s role to find an alternative explanation for hearing loss. Rather, the panel is to determine whether hearing loss is work related or not, based on the evidence presented before the panel.

As such, while the panel accepts that the worker has hearing loss, we are unable to determine based on the evidence before us and on the standard of a balance of probabilities that this hearing loss is the result of their workplace exposure to noise. We therefore conclude that the claim is not acceptable, and the worker’s appeal is dismissed.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of October, 2025