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 June 26, 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 February 29, 2024, reporting a gradual hearing loss that they related to their employment with the employer. The worker noted they first became aware of their hearing loss after they retired in 1998 and further noted hearing protection was not made available to them while they worked. The worker listed various non-occupational exposures to noise including flying, snowmobiling and operation of farm machinery. The Work History Summary listed the worker’s employment with the employer from 1960 to 1998 and noted their exposure to various pieces of large machinery for 8 to 12 hours per day with no hearing protection worn.

On March 13, 2024, the WCB contacted the worker to gather further information on their claim. The worker confirmed the information on their Report, noting in terms of non-occupational noise exposure, they had a pilot license and flew recreationally as a hobby, they drove both snowmobiles and motorcycles advising they wore a helmet while driving the snowmobile, had causal use of farm equipment and did target shooting from their right shoulder of a firearm. With respect to their employment, the worker noted they initially started out with the employer in a labourer position, and after approximately a year, moved into a supervisory position. The worker noted they were around large construction equipment but did not operate the equipment and that hearing protection was not worn. The WCB also spoke with the worker’s spouse who confirmed the information provided by the worker and advised that a hearing test had been conducted on February 28, 2024 but was not aware if hearing testing was conducted while the worker was employed. The WCB advised the worker’s spouse that a minimum threshold of a sound rating of 85 dBA with exposure of 8 hours per day for a minimum of 2 years was required to meet the criteria for a noise-induced hearing loss claim and further investigation was required.

The February 28, 2024 audiogram was received by the WCB on March 14, 2024. The audiogram indicated the worker had moderate sensorineural hearing loss bilaterally and noted the worker’s reporting of exposure to industrial noise for many years.

The employer provided the WCB with an Employer Hearing Loss Report on May 23, 2024. The employer confirmed the worker began employment in 1960 and retired in 1998. The employer further indicated a hearing protection program was implemented in 1985 but the specific hearing protection worn by the worker was not known by the employer. Further, the employer noted that in the worker’s first role with the employer, they would have been exposed to continuous noise as they were around the heavy construction equipment on sites however, in their supervisory position, the worker would have had intermittent exposure as they would have been in a trailer away from the main construction work. The employer also confirmed the worker did not operate the equipment themselves and would have been exposed to all types of heavy equipment at various job sites. In an addendum to the Report, the employer noted from 1960 to approximately 1962, the worker’s position involved working on constructions sites where the worker was likely exposed to noise from heavy construction equipment from 10 to 14 hours per day during the summer construction time, approximately April to October. The employer was unaware if the worker began as a seasonal worker or as a full time employee and noted had they been full time, during the winter months from November to March, the worker would have likely being in an office working on processing data. From 1962 to 1998, the worker was a supervisor/project manager, and remained in that position until they retired. The employer indicated that most of the worker’s time would have been spent in an office environment with site visits done during the summer months, one or two days per week with minimal exposure to noise. In addition, the employer noted that when the hearing protection program was introduced in 1985, workers were provided with ear plugs and ear muffs and the expectation was the worker would have worn the protection where it was required. Also submitted by the employer were hearing tests and audiograms for the worker from 1988 to 1995, some of which noted the worker flew as a recreational pilot.

On July 10, 2024, the worker’s WCB adjudicator placed a memorandum to the worker’s file setting out their rationale that the worker met the threshold for exposure to noxious noise. The worker’s file was then sent to the WCB’s audiology consultant for review. A review of the worker’s file took place on August 7, 2024 and found the first audiogram to indicate noise-induced hearing loss was one on June 2, 1992. The consultant provided that the 1992 to 1995 assessment indicated bilateral notched hearing loss, which was indicative of probable noise-induced hearing loss with sufficient confirmed noise exposure. However, it was noted that the degree of hearing loss in 1995 would not have required a hearing aid. Asymmetry was noted, with the left ear worse than the right, which was likely due to right-handed firearm exposure. It was noted that one hearing aid for the left ear would be indicated based on the 1995 hearing assessment. On August 15, 2024, the WCB advised the worker their claim was not acceptable as the medical evidence indicated the worker had asymmetrical hearing loss, which was not consistent with noise-induced hearing loss related to employment.

The worker requested reconsideration of the WCB’s decision to the Review Office on August 19, 2024. It was noted that while the worker did shoot a firearm, it was for target shooting only and was rare. The worker also advised they drove in their vehicle with the windows down prior to having air conditioning and queried whether that could have been the cause. The worker also questioned the date they became a supervisor and started working in a office, noting that they were still working 10 to 14 hours on construction sites in 1967. On October 17, 2024, the employer provided a submission in support of the WCB’s decision, a copy of which was shared with the worker.

The Review Office determined on October 25, 2024, the worker’s claim was not acceptable. The Review Office accepted and agreed with the opinion of the WCB audiology consultant and found the worker had other non-occupational exposures to noise that likely contributed to the asymmetrical nature of their hearing loss including flying planes, snowmobiling, motorcycle use and target shooting. The Review Office further found the worker confirmed that in 1991, they used both ear plugs and ear muffs for hearing protection, which use would have lowered the noise level the worker was exposed to and as such, any noise exposure after that date would not meet the criteria for noxious noise in accordance with the WCB’s policies and regulations.

The worker’s representative filed an appeal with the Appeal Commission on April 16, 2025 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 November 5, 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 Section 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 Section 1(1) as being:

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 "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”.

Worker’s Position

The worker was represented by an advisor and their spouse. The worker’s representative made an oral submission to the panel. The worker’s spouse provided evidence by way of answering questions posed by members of the appeal panel.

The position of the worker is that they were exposed to sufficient noxious noise, without hearing protection, throughout their career and meet the requirements of the NIHL Policy. It is submitted that the worker has noise-induced hearing loss and as such, the claim should be accepted.

The worker’s representative states that the worker driving with their window down was an occupational reason for the more left-sided noise exposure and argues that the worker did not have reduced noise exposure once made a supervisor.

The evidence from the worker’s representative and spouse was that the worker did not work primarily in an office but was on the job site, overseeing the construction companies under contract with the employer. The worker was on-site to supervise the construction and was in close proximity to the machines and noxious noise. The worker’s spouse recalls the worker working 12-14 hour days during road construction season.

The worker’s representative submits that the information from the employer respecting the worker’s job duties, and change in work location may not be accurate as the employer had limited information from this time frame and appears to have relied on information from a retired employee. The worker’s representative states that the panel should not rely on information from the employer but should instead rely on information from the worker and the worker’s spouse.

The worker is seeking that their claim be accepted.

Employer’s Position

The employer was represented by a worker’s compensation specialist. The representative made an oral submission to the panel and answered questions posed by members of the appeal panel.

The position of the employer is that the claim is not acceptable as the evidence does not support that the worker was exposed to noxious noise in the workplace at the levels and frequencies required by the NIHL Policy.

The employer submits that the worker mostly worked from an office and their visits to construction sites were only 1 to 2 days per week during the summer months. The employer states that exposure to noise was minimal and intermittent, approximately 3 to 5 hours per week.

The employer also points to the asymmetry in the noise loss, with the worker’s hearing in their right ear being within the normal range. The employer notes that bilateral hearing loss was only present at the 1992 hearing test, which was well after the exposure to noise ended.

The position of the employer is that the worker was not exposed to noxious noise as required under the NIHL Policy and therefore their claim is not acceptable.

Analysis

The issue on appeal is whether the claim is acceptable. The panel is required to determine whether, on a balance of probabilities, the worker’s hearing loss arose out of and in the course of employment and meets the criteria for acceptance under the NIHL Policy. This requires consideration of both the nature and duration of occupational noise exposure and whether the medical and audiological evidence establishes a causal relationship between that exposure and the worker’s current hearing loss.

There is no dispute that the worker has hearing loss. The determinative question is whether that hearing loss is noise-induced and causally related to the worker’s employment.

The panel has considered the evidence of the worker on file and the evidence from the worker’s spouse at the hearing. The panel accepts that heavy construction equipment present at the job sites was capable of producing hazardous noise levels. However, the presence of noise in the work environment does not, in and of itself, establish that a worker was personally and continuously exposed to that noise. The evidence must demonstrate that the worker was in sufficient proximity to the noise source, for sufficient duration, and with sufficient frequency to meet the NIHL Policy threshold.

A critical element of the NIHL Policy is not only the presence of noise in the workplace, but direct, continuous exposure to hazardous noise at the required levels and duration. After carefully reviewing the evidence, the panel is not satisfied that the worker was directly exposed to noxious noise on a continuous basis as required under the NIHL Policy.

While the worker initially worked in a labourer role in the early 1960s, the employer’s evidence and the worker’s evidence indicates that this period was relatively short. From approximately 1962 onward, the worker worked in a supervisory and project management role. In that capacity, the worker did not operate heavy equipment and was not required to remain in close proximity to noise-generating machinery for extended periods. Rather, the evidence supports that the worker’s role involved oversight, coordination, and administration, with time spent in a trailer or office environment away from active construction.

The panel carefully considered the worker’s testimony that they were frequently on-site and worked long hours during construction season. However, being present at a worksite is not synonymous with continuous direct exposure to hazardous noise. Even accepting that the worker attended job sites during the summer months, the evidence supports that such attendance was intermittent, rather than continuous exposure for eight hours per day or an equivalent duration.

The panel also notes that site visits were not daily and were seasonal in nature. Outside of the construction season, the worker would have been primarily engaged in office-based duties. This pattern of exposure does not meet the NIHL Policy requirement for ongoing hazardous noise exposure over a minimum two-year period.

The panel also considered the available audiological evidence. The panel places significant weight on the opinion of the WCB audiology consultant, who reviewed the file and audiometric history.

The earliest audiogram indicating possible noise-induced hearing loss was dated June 2, 1992, more than 30 years after the worker’s period of highest occupational noise exposure and near the end of their employment. The consultant noted bilateral notched hearing loss consistent with noise exposure, but also observed asymmetry, with the left ear being worse than the right.

The panel finds the asymmetric nature of the hearing loss to be a critical factor. Occupational noise-induced hearing loss is typically bilateral and relatively symmetrical. The panel also considered the worker’s submission that the asymmetry in the worker’s hearing loss may be attributable to occupational noise exposure from driving with the window down, resulting in greater exposure to noise on the left side. The panel is not persuaded by this argument. Even if the panel were to accept that some degree of noise exposure occurred the evidence before the panel does not support that such exposure was continuous, prolonged, or of sufficient intensity to cause permanent hearing loss. The panel is of the view that this exposure would have been intermittent. The panel further notes that the degree of hearing loss identified in the 1995 audiogram was mild and did not require hearing aids, which is inconsistent with the level of impairment expected if the worker had experienced prolonged, unprotected exposure to hazardous occupational noise over several decades.

In assessing all of the evidence, the panel accepts that there was occupational noise exposure but finds, on a balance of probabilities, that the evidence does not establish that the worker was directly exposed to hazardous noise on a continuous basis for the duration required. The stronger periods of exposure occurred in the early 1960s, more than 30 years prior to the first audiometric evidence of possible noise-induced hearing loss. The very lengthy period between the end of employment and the reported onset reduces the probability of a causal relationship, particularly given the asymmetric hearing loss and the non-occupational exposures during and after employment.

The panel has considered and relies on the asymmetric nature of the hearing loss, the delayed reporting and onset of symptoms, and the audiology consultant’s findings, in determining that the evidence does not establish the necessary causal connection.

On the balance of probabilities, the worker’s hearing loss is not the result of noxious noise arising out of and in the course of their employment. The claim is therefore not acceptable.

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 18th day of December, 2025