The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that their claim is not acceptable. At a hearing held on April 27, 2026, the appeal panel considered the worker's appeal.

Issue

Is the claim acceptable?

Decision

The claim is not acceptable.

Background

On July 16, 2014, the worker provided their Worker Hearing Loss Report to the WCB, reporting a gradual loss of hearing which they attributed to noise exposure in the course of their work. The worker reported they were exposed to continuous noise at work and did not use hearing protection. The worker also provided a Work History Summary, outlining their employment since 1968. The WCB received a July 24, 2014 report from the worker's treating audiologist providing hearing test results from July 16, 2014 that indicated the worker had "…moderate high frequency sensorineural hearing loss in the right ear and moderately-severe high frequency sensorineural hearing loss in the left ear."

On July 30, 2014, the worker confirmed the information in their Report and work history to the WCB, noting that while driving most work vehicles, they had windows down, although some vehicles had air conditioning.

On August 8, 2014, the employer submitted an Employer Hearing Loss Report to the WCB, noting the worker began in their employ in June 1997 and worked seasonally until November 1999. During that time, the employer provided the worker with hearing protection in the form of ear plugs. The employer also provided an Audiometric Record to the WCB relating to hearing tests conducted in 1998 and 1999.

The WCB placed information to file indicating noise levels for the various equipment comparable to that used by the worker in their work. In a request for review by a WCB Ear, Nose and Throat (ENT) specialist, the WCB noted that noise exposure was confirmed from 1980 to 1989, but noise levels after that date did not meet the WCB's threshold for noise related hearing loss claims. The WCB further noted the worker performed their job duties with the windows down approximately half of the time, which resulted in more noise exposure on the left side.

In an opinion provided September 17, 2014, the WCB ENT specialist noted an audiogram from 1998 indicated normal hearing in the worker's right ear and noise-induced hearing loss ("NIHL") in the left ear. The specialist provided that driving a vehicle with the window open could cause bilateral noise-induced hearing loss but the left ear would be worse; however, in the worker's case, the ENT specialist concluded the worker's left ear NIHL was likely due to their right-handed firearm use. On September 26, 2014, the WCB advised the worker the claim was not accepted as their left hearing loss could not be attributed to occupational noise exposure.

On October 24, 2014, the worker requested Review Office reconsider the WCB's decision noting the vehicles they drove in their work were older vehicles, with louder engine and transmission noise and further, their firearm use was over 50 years previously and they could not recall for certain whether it was right-handed or left-handed use. The worker also noted the hearing tests conducted in 1998 and 1999 by the employer took place in a noisy environment and noted their belief the test results were not valid.

On January 9, 2015, Review Office upheld the WCB's decision the worker's claim was not acceptable. Review Office found the evidence did not support that the worker's hearing loss was the result of occupational noise exposure. The worker's representative filed an appeal with the Appeal Commission on January 16, 2026 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and the policies established by the Workers Compensation Board of Directors. The legislative provisions in effect at the date of accident apply.

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 WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") outlines the WCB's approach to claims arising from prolonged exposure to occupational noise that causes hearing loss. This policy 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 appeared in the hearing represented by a worker advisor. The worker advisor relied on a written submission and additional evidence provided to the panel in advance of the hearing and made further submissions in the hearing. The worker offered testimony during the hearing.

The worker's position is that based on the available evidence, the panel should find that the worker was exposed to noise in the course of their job duties with the employer and the subsequent employer sufficient to meet the criteria set out in the Policy and that because of that exposure, the worker sustained bilateral sensorineural hearing loss. Therefore, the claim should be accepted.

The worker testified to the nature and extent of their noise exposure while working with the employer and their subsequent employer, including a description of the kind of machines and equipment they used in work and that they were exposed to in their work. The worker advisor relied upon materials in the WCB file as well as evidence provided to the panel in advance of the hearing as establishing that the worker was regularly exposed to noise levels of more than 85 decibels.

The worker advisor submitted that the Policy provides that if a worker is exposed to average noise levels above the threshold level of 85 decibels, then, for every increase in noise level of 3 decibels, the required exposure time will be reduced by half. The worker advisor submitted that this reduction in required exposure time refers to the number of years of exposure, from the stated Policy minimum of two years, or to the number of hours of daily exposure.

The worker's representative also submitted evidence and pointed to file evidence to support the worker's position that they were exposed to noxious noise greater than an average of 85 decibels for 8 or more hours daily in their subsequent employment with another employer which began in 1999 and continued at the time of the claim in 2014. The worker advisor submitted that even if the worker began this job with hearing loss, any worsening of their hearing loss over the subsequent years of employment is potentially compensable. The worker advisor presented and relied on a 2017 Canadian study that showed "The average sound power level from in-front of the refrigeration units is 102 decibels" and noted the worker's testimony that they daily spent approximately 20 minutes inspecting that unit. Based on this evidence of the sound power of the units and the worker's exposure, the worker advisor submitted the worker would require no more than 10 minutes of daily exposure to meet the Policy threshold and therefore the claim should be accepted based on this daily exposure.

The worker advisor also submitted that in the course of the worker's subsequent employment, they were exposed to additional noise from equipment used to load and unload trailers, particularly the noise from backup alarms, and that the evidence confirms these alarms significantly exceed 85 decibels.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue under appeal is whether the claim is acceptable. For the panel to find the worker’s claim is acceptable, we would have to determine that the worker’s hearing loss is, on balance of probabilities, 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 panel noted the evidence that the worker currently has bilateral hearing loss. The panel accepts the evidence of left hearing loss, indicative of NIHL, first recorded in April 1998 and further, that by the time of the hearing test in March 1999, there is evidence of bilateral NIHL. However, as set out in Policy, not all hearing loss is caused by or the result of noise exposure in the workplace. Further, not all workers experience hearing loss even if there is evidence of noise exposure.

As outlined in the Policy, for the WCB to accept a hearing loss claim based on occupational noise exposure, there must be not only evidence of sensorineural hearing loss, but also evidence of prolonged exposure to excessive noise in the workplace. The Policy establishes a threshold for acceptance of claims based on such exposure requiring that there be evidence of exposure to hazardous noise at work for a minimum of two years, based generally upon an average of 85 decibels for eight hours of daily exposure. The Policy further provides that for every increase in noise levels of three decibels, the required exposure time is reduced by half.

The worker advisor submitted that the Policy provision that allows for halving of required exposure time applies to either the requirement of two years exposure at work, or to the requirement of eight hours of daily exposure. The panel does not accept this interpretation of the Policy. We note the Policy explicitly references a minimum of two years of exposure, which aligns with the earlier Policy references to "prolonged exposure" and "long-term exposure to occupational noise". We also note the Policy states that NIHL occurs gradually "often over many years". We find that this is aligns with a threshold of a minimum of two years of exposure. The panel interprets the Policy as allowing for reduction of the time on a daily basis that a worker is exposed to average noise levels above 85 decibels, where for each increase in three decibels, the required daily exposure is reduced by half. This interpretation is supported by the Policy's use of the term "generally" in referring to the threshold of 85 decibels for eight hours daily before setting out the exception to the general rule that reduces the required daily exposure for higher than threshold average noise levels.

The panel therefore considered if the evidence supports a finding that the worker's occupational exposure to noise was sufficient to meet the threshold as set out in the Policy. We noted that in April 1998, when the first hearing test indicated hearing loss in the worker's left ear only, the worker was about to begin their second season of employment with the employer, having worked in the previous year from June 9 to November 7, 1997, a total of five months followed by approximately five months away from that employment. At the time of the second hearing test in March 1999, the worker was about to begin their third season of employment, having worked for roughly six months in 1998 from May 4 to November 13. The worker advisor calculated that, based on the worker's report of 10-14 hour shifts and working on average 60 hours weekly, this equates to some 3000 hours, or 1.44 years of full-time employment. Whether calculated based on the days worked, or the hours converted to days as the worker advisor suggested, the panel finds that the worker did not work for the employer for at least two years before either the April 1998 hearing test or the March 1999 hearing test. As such, the evidence does not support a finding that the worker had at least two years of daily exposure to occupational noise above the threshold as required by the Policy at the time of the first evidence of hearing loss.

The panel also considered the worker's position that they were exposed to noxious noise greater than an average of 85 decibels for eight or more hours daily in their subsequent employment from 1999 through to the time of the worker's next hearing test in 2014. The panel noted the worker's testimony that their inspections, which occur 4-5 times each day, take 5-10 minutes and include walking around the entire unit, not spending time only at the front of the unit where the noise levels are highest. Further, the panel noted the study itself identifies that variation in manufacturer, model and operation setting contribute to a range from 93 - 109 decibels. This variability means the amount of exposure required to meet the threshold in the Policy would also vary greatly depending on the specific unit in use. For example, if the refrigeration unit had a sound level at the lower end of that range, the worker would require at least 60 minutes of daily exposure to the front of the unit where the sound levels are greatest. The panel noted that although there is evidence as to the specific trucks the worker drove, there is not evidence as to the details of the refrigeration units those trucks hauled. As such, it would be speculative for the panel to make any finding in relation to the worker's sound level exposure when inspecting those units.

With respect to the worker's submissions regarding noise levels of the backup alarms on loading and unloading trailers, the panel considered the worker's testimony that they would stand in the loading dock area near the trailer to count but not in the trailer or in the building. As such, the panel finds that the worker's exposure to such alarms during the specific time when loading or unloading, would have been of relatively brief duration and infrequent over the course of an entire day's work. Further, the panel noted the worker advisor provided examples of a wide range of backup alarms, but there is no evidence as to which specific backup alarms the worker was exposed to. As such, the panel finds that the evidence before us is insufficient to make any findings as to the worker's specific noise exposure in relation to these alarms.

Based on the totality of the evidence, and on the standard of a balance of probabilities, the panel is not able to find that the worker was exposed to occupational noise above the threshold set out in the Policy as is required to establish a successful claim for occupational NIHL. Therefore, the claim is not acceptable, and the worker’s appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of May, 2026