The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that their claim is not acceptable. An appeal panel considered the worker's appeal at a hearing held on May 28, 2026.

Issue

Is the claim acceptable?

Decision

The claim is not acceptable.

Background

The worker submitted a Worker Hearing Loss Report to the WCB on March 27, 2023, reporting gradual hearing loss which they attributed to their employment with various employers. The worker noted first becoming aware of hearing loss in 2000, after a hearing test and that they also experience tinnitus. In their Report, the worker stated they wore hearing protection while they were self-employed, and that hearing protection was available from their employers. In relation to other noise exposure outside of work, the worker noted using home power tools with hearing protection. In the submitted Work History Summary, the worker outlined their employers since 1981 and noted they were self-employed since 2012.

When the WCB contacted the worker on April 21, 2023, the worker confirmed they noticed hearing difficulties approximately in 2000 after a hearing test, and confirmed they also experience tinnitus in their right ear. The worker advised of hearing tests conducted by their employer between 1997 and 2006 and recently on their own initiative on March 21, 2023. The worker noted an upcoming appointment with an Ear, Nose and Throat (ENT) specialist on May 19, 2023. The worker stated they had not operated farm machinery but used a firearm approximately 20 years previously as a left handed shooter. The WCB reviewed the work history with the worker confirming the employers, their job duties with each employer and if hearing protection was provided in the employment in which they were exposed to noxious noise.

The WCB received an Employer Hearing Loss Report from an employer with whom the worker was employed for approximately 2 months, which the worker's exposure to intermittent noise with hearing protection provided. This employer also provided a pre-employment audiogram dated October 1981, information about the worker’s position and noise level survey information. A second employer provided an Employer Hearing Loss Report relating to the worker's employment from February 1996 to September 2007. This employer noted the worker would have been exposed to intermittent noise due to their various job duties, provided hearing test records from 1996 to 2007, and noted the worker also worked on their parents’ farm for 8 years.

The WCB received a copy of the June 29, 2023 report from the treating ENT specialist who assessed the worker on May 29, 2023. The specialist noted they saw the worker on referral after audiological testing on March 27, 2023. The ENT specialist recorded the worker’s report of hearing difficulties for many years after being exposed to occupational noise. They noted no history of ototoxic exposure or head trauma and no family history of hearing loss. The specialist provided that the audiogram findings indicated the worker has “…bilateral, asymmetric sloping neurological hearing loss” and noted they referred the worker for further testing to evaluate the asymmetrical hearing loss, noting “I do not believe the patient’s asymmetry speaks against this being noise-induced in etiology.”

On July 18, 2023, the WCB received noise level information from the 1996-2007 employer. The same day, a WCB adjudicator outlined in a memorandum to the worker’s file that the worker was exposed to noxious noise in excess of the WCB’s criteria while in this employment, and requested a medical advisor review the worker’s file.

On September 15, 2023, a WCB audiology consultant reviewed the worker’s file. The audiology consultant noted the evidence on file indicated a normal hearing assessment in 1981, and that the next assessments from 1997 - 2006 indicated a hearing loss in the right ear only, with the left ear hearing within normal limits. The consultant went on to provide that NIHL is typically symmetrical, and there was no evidence of an occupational reason for the worker’s asymmetric hearing loss but noted the worker’s recreational left-handed firearm use was a known cause of asymmetric noise-induced hearing loss ("NIHL"). The specialist concluded the March 27, 2023 audiogram indicated bilateral NIHL, pending confirmation of sufficient noise exposure after September 7, 2006.

On October 5, 2023, the WCB provided the worker with a formal decision letter advising it did not accept their claim. On May 1, 2024, the worker requested Review Office reconsider the WCB's decision, noting their belief the noise exposure from 1997-2006 was sufficient to cause NIHL even with hearing protection used. On July 26, 2024, Review Office upheld the WCB’s decision and found the worker’s claim was not acceptable.

The worker’s representative submitted additional information to Review Office on June 30, 2025 and requested reconsideration of July 2024 decision. The representative noted the WCB had determined the worker was exposed to noxious noise between 1996 and 1998 and confirmed the worker had hearing loss in their right ear, with evidence of an audiometric notch compatible with NIHL. The representative submitted the worker's history of occupational noise exposure made them more susceptible to hearing loss later in their life. The representative also pointed to the recommendation based on the March 27, 2023 audiogram that the worker be provided with 2 hearing aids. On July 23, 2025, Review Office determined the worker’s claim was acceptable for a right-sided hearing loss only and returned the file to the WCB’s Compensation Services for further adjudication.

On August 18, 2023, the WCB advised the worker that the claim was accepted, and they were entitled to a hearing aid for their right ear only.

The worker’s representative, on January 12, 2026, again requested reconsideration of the WCB’s decision to Review Office. The representative noted the WCB determined the worker did not have hearing loss in the left ear when they left their employment in 2007 and was not exposed to noxious noise after that time, but when the worker was self-employed, from 2012 to the present, they were exposed to noxious noise although wearing hearing protection. The representative submitted the hearing protection used by the worker since 2012 likely had deteriorated over time such that it did not provide the highest level of protection. The representative noted the March 27, 2023 audiogram indicated bilateral hearing loss and recommended hearing aids for both ears and as such, the representative argued the worker should be entitled to bilateral hearing aids. On February 12, 2026, Review Office advised the worker and their representative that the issue under reconsideration was expanded to include whether the worker’s claim was acceptable. On March 9, 2026, Review Office determined the worker’s claim was not acceptable. Review Office found the evidence on file did not support the worker’s hearing loss was related to their employment and found the worker was not exposed to noxious noise during their self-employment. The worker’s representative filed an appeal with the Appeal Commission on April 9, 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 while self-employed and with the employer from 1996-2007 above the threshold 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 their work history outlining when they were exposed to loud noise in their employment and as to the extent of their use of hearing protection. The worker also testified as to their exposure to noise in situations outside of work, indicating their use of farm machinery and shooting experiences took place in their youth, prior to entering the workplace at the age of eighteen.

The worker advisor submitted that the worker's occupational exposure in the course of their employment from 1996-2007 provides an explanation for the worker's asymmetrical hearing loss as identified by the workplace hearing test results during that time and further submitted these test results support a worsening of the worker's hearing during that employment. The worker advisor also submitted the worker was exposed to further occupational noise in their self-employment activities which involve use of various power tools, as described by the worker, and that although the worker consistently wore hearing protection when using such tools, the worker's hearing protection devices were insufficient as the worker did not replace them as frequently as recommended.

The worker's position is that the hearing test results from workplace testing in 1996-2007, testing in 2016 and the audiological findings of 2023 support a finding that they sustained NIHL as a result of their occupational noise exposures.

Employer’s Position

The worker was the owner of the business. Therefore, there was no separate employer participating in the appeal hearing.

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. On the evidence before the panel, we were unable to make such a finding as outlined in the reasons that follow and therefore, the worker's appeal is denied.

The panel notes and accepts that the worker currently has bilateral sensorineural hearing loss, with the evidence indicating right hearing loss consistent with NIHL first recorded in November 1997, and on assessment of March 27, 2023, evidence of bilateral NIHL as confirmed by the WCB audiology consultant on September 15, 2023. However, as set out in Policy, not all hearing loss is caused by or the result of noise exposure in the workplace, and not all workers who are exposed to noxious noise in the workplace experience hearing loss as a result. 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 every increase in noise levels of three decibels, reduces the required exposure time by half. 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.

The panel accepts the conclusion reached by the WCB adjudicator as outlined in their file memorandum of July 18, 2023, that during the worker's employment from 1996 - 2007, they would have been exposed to noise above the threshold set out in the Policy. The worker's testimony and the information provided to the WCB by that employer support this conclusion.

The panel also accepts the finding in that same memorandum that in the worker's self-employment beginning in 2012, given their reported consistent use of hearing protection, the worker would not have been exposed to noise levels above the Policy threshold. While the worker's representative submitted the worker's use of hearing protection was compromised by their use of the same pair of earmuffs through most of that period, the panel finds there is no evidence to support this position. By 2012, the worker was using hearing protection at work for approximately thirty years, working in environments that required such protection for most of their work history. As such, the panel finds it improbable that the worker would continue to use earmuffs that were not effective. Further, given the varied nature of the worker's self-employment job duties, as described, the panel finds it unlikely that their exposure to noise, while using such hearing protection, would have exceeded the threshold set out in the Policy.

The panel also considered the evidence as to the nature of the worker's hearing loss, noting that hearing test results in October 1981 indicated normal hearing. The next hearing test, of November 20, 1997, took place in the workplace after the worker was in their job about one and one-half years and indicates a notable difference between the worker's left and right hearing, with evidence of NIHL in the right ear only and normal hearing in the left. This change in the worker's right hearing occurred at some time between October 1981 and November 1997. The worker submits their right hearing loss results from their exposure to noise in this employment which they began not quite two years earlier in February 1996. The panel notes however that despite the worker continuing with that employer, in various positions in environments of noxious noise for another ten years, the worker's hearing test results from 2000 through 2006 do not suggest a significant worsening of hearing in either ear consistent with ongoing noise exposure. The worker submits there is a clear deterioration in their right hearing over this period, but the panel finds that is only the case in relation the worker's test results at 8000 Hz and to some extent at 6000 Hz, with the test results indicating relatively stable hearing at 3000 Hz and 4000 Hz levels over this period. The panel finds it improbable that the worker's right hearing loss occurred primarily between their start date in February 1996 and the November 1997 testing, given the use of hearing protection and the relatively short period of noise exposure but then stabilized despite ongoing noise exposure in that workplace over the subsequent years.

The panel also considered that during this same time, the worker's left hearing remained within normal limits. As NIHL is typically symmetrical when occurring because of occupational noise exposure, the panel also considered the worker's explanations in relation to the asymmetry of their hearing loss. We find the explanation that the worker's right hearing loss was caused by their ongoing removal of the right hearing protection to communicate with others in the workplace is not persuasive, particularly given the stability of the worker's right hearing at the levels most commonly indicative of NIHL through their ten years of working in this environment.

The panel also reviewed the hearing test results from June 2016 provided by the worker's employer at that time. We give these findings less weight as the document appears to set out two sets of test results in relation to the worker's left ear from 500 - 4000 Hz without providing any clear explanation for the disparity. There is some suggestion in this report of the need for retesting due to possible wax buildup but the results in the report do not clarify which are the findings to be relied upon. The panel therefore has not relied on these test results although noting the continuity of asymmetry in the findings.

The evidence from the worker's 2023 hearing testing indicates bilateral hearing loss, as noted above, which the WCB audiology consultant indicated were suggestive of NIHL, provided there was "confirmation of sufficient noise exposure after September 7, 2006." As outlined above, the panel finds the evidence does not confirm such exposure.

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’s hearing loss is the result of exposure to noise in the workplace. Therefore, the claim is not acceptable, and the worker’s appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of June, 2026