WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 846/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 846/15 BEFORE: L. Bradbury: Vice-Chair HEARING: April 21, 2013 at Toronto Written DATE OF DECISION: June 18, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1357 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) F. J. Mackin dated January 31, APPEARANCES: For the worker: For the employer: Interpreter: Self represented M. Bruno Not required Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 846/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated January 31, That decision concluded that the worker was not entitled to benefits for her hearing loss. [2] The worker is representing herself. She consented to proceed with the appeal by way of written submissions. The worker filed written submissions dated October 8, 2013 and December 5, [3] The employer provided a submission dated June 19, (ii) Issues and decision [4] The issues to be determined are: 1. Does the worker have initial entitlement for occupational noise induced hearing loss? 2. Does the worker have initial entitlement for noise induced tinnitus? [5] For the reasons set out in this decision, the worker s appeal is allowed in part. I find that the worker has initial entitlement for noise induced hearing loss. Her claim for tinnitus is returned to the Board, to be determined in light of this decision. (iii) Background [6] The worker, now aged 58, started as an Electroneurophysiology (EEG) Technician with the accident employer, a hospital, in [7] The employer filed a Report of Injury/ Disease (Form 7) with the WSIB on January 1, 2011 stating that the worker had reported hearing loss and tinnitus. [8] In a decision dated April 22, 2013 the Noise Induced Hearing Loss (NIHL) adjudicator found that the worker s claim could not be accepted since her hearing loss pattern was not typical for noise exposure and there was insufficient exposure to occupational noise. [9] The ARO accepted the decision. The worker now appeals to the Tribunal. (iv) Relevant law and policy [10] The Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. [11] Hearing loss in workers occupationally exposed to hazardous noise is an occupational disease under section 2(1) and section 15 of the WSIA provided it meets the criteria set out in Board policy. [12] The Board s policy on noise induced hearing loss is found in Operational Policy Manual (OPM) Document No This policy states that entitlement is based on exposure to noise at 90 db (A) for 8 hours per day, for a minimum of 5 years, or the equivalent. The policy also requires a pattern of hearing loss consistent with noise induced sensorineural hearing loss. A worker is entitled to health care and rehabilitation benefits when the loss is 22.5 db in each ear in the four speech frequencies. The policy further states that workers with db loss in each

3 Page: 2 Decision No. 846/15 ear, or 25/32.5 db in the better and worse ears respectively, are entitled to a non-economic loss (NEL) medical assessment for permanent impairment. [13] Policy includes an Exceptions clause that states: Since individual susceptibility to noise varies, if the evidence of noise exposure does not meet the above exposure criteria, claims will be adjudicated on the real merits and justice of the case, having regard to the nature of the occupation, the extent of the exposure, and any other factors peculiar to the individual case. [14] Entitlement requirements for tinnitus claims are set out in OPM Document No This policy states that the Board accepts entitlement for occupational noise induced tinnitus if it is the result of exposure to hazardous noise through employment in Ontario and if the following circumstances exist: there is an accepted claim for occupational noise induced hearing loss, and there is a clear and adequate history of 2 or more years of continuous and severe tinnitus, and the condition has been confirmed by a specialist with facilities for testing tinnitus. (v) The worker s hearing loss (a) The work environment [15] The Board accepted the information from their Occupational Hygienist that the worker had been exposed to occupational noise for 32 years during her career as an EEG Technician. For purposes of this decision, the worker s relevant exposure is her work since 1986 for a hospital, her employer for the past 28 years. The worker s job for 7.5 hours each day is to administer EEG (electroencephalography) tests on patients, many of whom are infants and children. Each test takes at least an hour. In addition to administering tests on her own, the worker assists co-workers performing tests on pediatric patients. [16] The work environment was described by Dr. Upton, Professor of Medicine Technology at the hospital, who is the worker s supervisor. In a letter to the WSIB dated January 5, 2012, Dr. Upton stated as follows: (The worker) works in a very specialized environment with exposure to atypical noise such as screaming babies and children as well as developmentally delayed/ autistic children. It is to be expected that this will be different from exposure to machinery. [17] The worker s appeal letter to the Board dated June 5, 2013 added more details about her work environment, explaining that the children are often terrified of the tests, they are uncooperative and screaming while being restrained, often during the entire recording of the EEG. The technicians are not allowed to sedate the patients. (b) The medical evidence [18] The Board s audiologist, K. Steen, reviewed the worker s June 8, 2011 audiogram and reported on July 25, 2011 as follows: Review of the audiogram indicates a bilateral mild sensorineural loss. The pattern of loss is a cookie bite with the maximum loss centered in the mid frequencies (1000 Hz) and does not show the typical higher frequency seen in a NIHL. The pattern of loss is not consistent with a NIHL. A NIHL is typically a bilateral, symmetrical sensorineural loss.

4 Page: 3 Decision No. 846/15 There is usually a notch in the higher frequencies ( Hz) which can spread to the lower frequencies over time. The pattern of loss shown in the audiogram dated 08 June 2011 is not typical of a NIHL. [19] The NIHL Adjudicator relied on this report in her decision dated August 15, 2011 and denied the worker s claim. [20] The worker submitted an appeal. She stated that three of her co-workers had been accepted for noise induced hearing loss and they had the same cookie bite, atypical audiogram assessment, done by the same Board audiologist. This statement is supported by a letter from Dr. Upton dated May 1, [21] The audiologist repeated the audiogram and found the same pattern. She recommended that the worker be referred to Dr. J. Rutka, a leading Neurotologist and Professor of Otolaryngology, for an opinion on the pattern of hearing loss. [22] Dr. Rutka conducted two assessments, one on June 8, 2012 and another on October 15, 2012 to ensure he had an accurate reflection of the worker s hearing. Dr. Rutka reported: (The worker) has been identified to a bilateral broad-based mid-frequency sensorineural hearing loss in both ears between 750-6,000 Hz. While the configuration for her hearing loss on its own is atypical for a noise induced etiology no other cause has been identified to account for her hearing loss. The results of threshold evoked potential testing reasonably approach her volunteered puretone threshold results. If it can be demonstrated that (the worker) was exposed to loud noise potentially injurious to hearing then by WSIB criteria using the best thresholds values available (in either air or bone) her weighted puretone loss would be approximately 30 db in the left ear and 29 db in the right ear. Both values would qualify her for NEL benefits in the form of hearing aids. One does acknowledge that any NEL award would be based on an exception as no other cause could be identified to account for this loss. (c) Exposure information [23] Based on Dr. Rutka s report, the NIHL adjudicator asked the WSIB s Occupational Hygienist (OH) to attend at the hospital and comment on the worker s potential for occupational exposure to noise during her employment as an Electroneurophysiology Technician from 1986 to the present. [24] The OH reported on February 19, 2013 and noted that the employer had provided a copy of noise exposure testing from a co-worker taken in The OH also recorded exposures during 4 EEG tests and found that the noise levels ranged from db(a). The OH stated that while these results may be representative of current exposures, they may not be representative of historical exposures. In particular, these results were obtained after the implementation of additional control measures in the clinic to calm the children (e.g. installation of DVD players). The OH concluded that 88 db(a) may be more representative of the worker s historical exposure. [25] The NIHL adjudicator denied the worker s appeal in her decision dated April 22, 2013, stating that Along with a hearing loss pattern that is not typical to noise exposure, there is also insufficient exposure to occupational noise.

5 Page: 4 Decision No. 846/15 [26] The worker s file contains a March 24, 2010 report conducted by TELUS on behalf of the employer. The report followed testing of 5 children at different times and conducted tests on background noise when no children were present. The maximum noise levels were measured to be 108.1dB(A), db(a) and db(a) although the current average was found to be below 90 decibels. (d) Tinnitus [27] Although the worker has consistently reported problems with tinnitus, along with her hearing loss, it appears that she has not been tested for tinnitus. Dr. Rutka s report of October 15, 2012 does not comment on tinnitus, but there is a handwritten note on the audiogram as follows: Note: Pt. states she suffers from tinnitus at 1000Hz. Used warble tone. [28] Dr. Upton s letter to the WSIB dated May 1, 2013 states that tinnitus has been a consistent complaint from the worker. The evidence on the record supports this statement. (vi) Analysis [29] The appeal is allowed in part for the reasons that follow. [30] There is no dispute that the worker was exposed to noise in the course of her employment and the Board has accepted this. The Board denied entitlement for two reasons. First, the worker s hearing loss pattern is atypical for NIHL. Second, the worker was found to have insufficient exposure to noise; that is, less than the policy requirement of 90 db(a) for 8 hours per day for 5 years, or the equivalent. [31] With respect to the atypical hearing loss pattern, I note Dr. Rutka s statement that there is no other cause for the worker s hearing loss than her noisy work environment. A report dated June 17, 2011 from Dr. E. Jeney, Otolaryngologist, canvassed all the relevant information and supports Dr. Rutka s opinion. Dr. Jeney reported that the worker had no allergies, no ear surgery. The ears, nose and throat examination is normal. Dr. Jeney also reported that, prior to the worker s claim in 2011, no hearing protection was offered or required for the EEG technicians. The worker has told the Board that she does not listen to loud music and, other than her work environment, is not exposed to loud noise. This evidence is unchallenged. [32] The evidence shows, as well, that other co-workers had similar atypical hearing loss patterns. One co-worker consented to her information being included in support of the worker s claim. The Board s audiologist, K. Steen, reported on October 11, 2011 that the co-worker s audiogram showed a cookie bite pattern of hearing loss, the same pattern as the worker s. Even though Ms. Steen reported that the pattern is not typical of NIHL claims, the NIHL adjudicator in that case accepted the worker s claim since the worker had the required degree of hearing loss. [33] In this case, Dr. Rutka found that the worker had hearing loss of 30 db(a) in her left ear and 29 db(a) in her right ear. This means that the worker meets the requirement in OPM Document No of at least a 26.5 db(a) hearing loss in each ear for entitlement to a NEL assessment for permanent impairment. [34] I accept Dr. Rutka s opinion that the Exceptions clause in the policy could apply to the worker, if the exposure to noise was at potentially injurious levels. [35] On the issue of exposure, the two main pieces of evidence are the TELUS report and the report from the Occupational Hygienist. Both reports were conducted after the employer had put

6 Page: 5 Decision No. 846/15 some precautions in place, including DVD players meant to help calm the children being tested. For this reason, both reports note that their information may not be accurate with respect to the historical exposure levels. Both reports concluded that the current average exposure was below 90dB(A) but the TELUS report found that in 3 of the 5 cases tested, noise levels spiked from 101 to 108 decibels. These spikes are well above the policy requirement for exposure. [36] In my view, given that the TELUS report found spikes of noise levels in 3 of the cases they monitored that exceeded the policy requirement, it is reasonable to conclude that this pattern was the norm during the worker s employment, when the precautions were not in place. That is, some children s noises exceeded the 90dB(A) requirement. Since the worker was employed at the hospital for 28 years testing upset and screaming children, I find that it is more likely than not that the noise she was exposed to made a significant contribution to the worker s hearing loss. [37] The Exceptions clause in OPM Document No states that where evidence of noise exposure does not meet the exposure criteria, claims will be adjudicated on the real merits and justice of the case. [38] OPM Document No on Merits and Justice states that the policy is applied to ensure that: Similar cases are adjudicated in a similar manner Each participant is treated fairly, and The decision-making process is consistent and reliable [39] After reviewing Dr. Rutka s report on the worker s hearing loss, the evidence on exposure levels in the workplace, and the evidence about co-workers with similar test results and the same degree of noise exposure, I am satisfied that the Exceptions clause should apply in this case. As a result, the worker has initial entitlement for her noise induced hearing loss. [40] The worker s tinnitus, though documented, has not been confirmed by a specialist, presumably because her claim for NIHL was denied. I therefore do not have enough evidence to decide the worker s entitlement under OPM Document No which provides that the diagnosis be confirmed by a specialist with facilities for testing tinnitus. (vii) Conclusion [41] The worker has initial entitlement for noise induced hearing loss. She is entitled to health care and rehabilitation benefits, including hearing aids. She is also entitled to a NEL assessment for permanent impairment. [42] The worker s claim for initial entitlement to tinnitus is referred to the Board in light of my decision that the worker has an accepted claim for NIHL.

7 Page: 6 Decision No. 846/15 DISPOSITION [43] The appeal is allowed in part. The worker has initial entitlement for noise induced hearing loss, including health care, rehabilitation benefits and a NEL assessment. [44] The worker s claim for initial entitlement for noise induced tinnitus is returned to the Board for a decision in light of the finding that the worker has an accepted claim for noise induced hearing loss. DATED: June 18, 2015 SIGNED: L. Bradbury