Public Decision No. 89/2010
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This case was previously the subject of an appeal to the Appeal Commission to determine whether or not the worker was entitled to a permanent disability award in recognition of his hearing deficit. In Appeal Commission Decision No. 322/92, it was determined by the appeal panel that the worker was not entitled to a disability award in recognition of his hearing deficit. The worker later requested a reconsideration of Decision No. 322/92 in accordance with Section 60.10 of The Workers Compensation Act (the "Act"). On May 12, 2010, the Chief Appeal Commissioner granted the request for reconsideration and a file review was held on August 26, 2010.
Whether or not the worker is entitled to a disability award in recognition of his hearing deficit.
That the worker is not entitled to a disability award in recognition of his hearing deficit.
In 1992, the worker filed a claim with the WCB for hearing loss difficulties that he related to his years of employment as a machine shop mechanic.
On May 5, 1992, the worker was advised that his claim for hearing loss had been accepted but he was not entitled to a disability award as his hearing loss did not fall into the rateable range. This decision was confirmed by the WCB's Review Office and by the Appeal Commission on October 27, 1992, under Decision No. 322/92.
In the years subsequent to the October 27, 1992 decision, the worker underwent further testing for his hearing loss which showed deterioration in his hearing.
In September 2001, the worker retired from working as a machine shop mechanic.
The worker has requested reconsideration of the Appeal Commission's decision of October 27, 1992 based on the following new information:
- March 25, 1999 Noise Survey conducted by his employer
- August 30, 1995 Noise Survey follow-up memo
- Audiograms dated February 5, 2009, April 30, 2007; April 5, 2001, November 16, 2000,
July 22, 1999, December 11, 1998, April 24, 1998, December 21, 1995, November 26, 1992.
On May 12, 2010, the worker was advised by the Chief Appeal Commissioner that the new information demonstrated that his level of hearing loss had increased since the 1992 hearing and directed that the Appeal Commission reconsider Decision 322/92. A file review was arranged for August 26, 2010.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
As the worker’s claim was made in 1992, his benefits are assessed under the Act as it existed at that time. Payment of compensation for permanent disability (referred to in the 1992 Act as permanent impairment) was provided for under subsections 4(9) and 38(1) of the Act, which read as follows:
Compensation for impairment
4(9) The board may award compensation in respect of an impairment that does not result in a loss of earning capacity.
Determination of Impairment
38(1) The board shall determine the degree of a worker's impairment expressed as a percentage of total impairment.
For hearing loss claims arising on or before March 31, 2000, WCB policy 44.90.10.02 (the “Policy”) provides guidelines for calculating impairment awards. Attached to the Policy is a Permanent Impairment Rating Schedule (the "Schedule"). The Policy provides that impairment ratings are to be established strictly in accordance with the Schedule whenever possible and reasonable. The “Impairment of Hearing” section of the Schedule provides that:
When calculating impairment due to loss of hearing, the International Standard Organization (I.S.O.) audiometric calibration will be used and the hearing will be averaged at 500, 1,000, 2,000 and 3,000 hertz.
In order to merit an award, the average of the four speech frequency levels must be 35 decibels in each ear and the hearing loss in decibels is converted into percentage of impairment…. (emphasis added)
The issue before the panel is whether the worker is entitled to a permanent partial disability/impairment (“PPI”) award in recognition of his hearing deficit. Under the Act, workers may be entitled to a PPI award for hearing loss which results from workplace exposure to noise.
In the present case, the worker first filed his claim for hearing loss in 1992. According to the December 20, 1991 audiological test results, the worker’s average hearing loss at that time was 20 decibels in his right ear, and 30 decibels in his left ear. The Schedule provides that in order to merit a PPI award, the average of the four speech frequency levels must be 35 decibels in each ear. As the average hearing loss in both the worker's ears did not exceed 35 decibels, he did not qualify for a PPI award. This was the determination of the Appeal Commission in its decision dated October 27, 1992.
In this reconsideration, the worker relies on new audiograms conducted on November 26, 1992, December 21, 1995, April 24, 1998, December 11, 1998, July 22, 1999, November 16, 2000, April 5, 2001, April 30, 2007 and February 5, 2009, which were not previously before the Appeal Commission panel when it made its decision in October 1992.
The information on file indicates that the worker retired from his employment with the accident employer on September 13, 2001. After that date, the worker was removed from exposure to workplace noise, and therefore any deterioration in hearing loss after September, 2001 cannot be considered to be work-related. Accordingly, the panel's consideration of the audiograms will be limited to tests which were conducted prior to the worker's retirement.
The auditory brainstem hearing assessment conducted April 5, 2001 provides the test results which are closest to the date of retirement. At that time, the average hearing loss in the worker's right ear was 32.5 decibels and 26.25 decibels in the left ear. This level of hearing loss does not qualify the worker for a PPI award.
The panel notes that the results of the audiogram conducted on November 16, 2000 indicate an average hearing loss of 41.25 decibels in the right ear and 35 decibels in the left ear. These results are sufficient to qualify for a PPI award. The file indicates, however, concerns by the WCB's ENT specialist as to the reliability of the readings and the presence of inconsistent results. The specialist therefore arranged for new tests to be conducted on April 5, 2001, which used more sophisticated auditory brainstem (ABR) assessment techniques. As noted above, the results from the ABR tests did not qualify the worker for a PPI award.
In the panel's opinion, the April 5, 2001 results should be used to determine the worker's entitlement to a PPI award as these readings are more reliable due to the more sophisticated testing methodology. As the April 5, 2001 results do not exceed an average loss of 35 decibels in each ear, we find that the worker is not entitled to a disability award in recognition of his hearing deficit. The worker's appeal is therefore dismissed.
L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
(on behalf of the panel)
Signed at Winnipeg this 17th day of September, 2010