WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2482/16

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2482/16 BEFORE: R. Nairn : Vice-Chair B. M. Young : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: September 23, 2016 at Sudbury Oral DATE OF DECISION: November 24, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3205 DECISION(S) UNDER APPEAL: WSIB ARO decision dated June 23, 2005 APPEARANCES: For the worker: For the employer: Interpreter: Ms. S. Fischer, Office of the Worker Adviser Ms. S. Seabrook, Lawyer N/A 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. 2482/16 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a telephone operator. Born in 1957, the worker started with the employer in about [2] The WSIB (the Board ) established this claim with an accident date of December 28, As the worker noted in her testimony at this hearing, on that date she awoke experiencing deafness and symptoms of humming in her left ear. [3] The worker advised her employer about the onset of her left-sided hearing loss, and she subsequently completed a Report of Injury/Disease (Form 6) dated December 17, 2003 in which she noted the following with respect to the cause of her symptoms: As an [operator] working with a one-sided headset with an ear piece made out of rubber that fits inside my ear for 7.5 h a day = 37.5 wk, each call was announced in my ear with a loud beep. I would average 1000 calls per shift = 1000 beeps. Constant squealing sounds on bad connections along with yelling irate customers. (The employer) threatened our jobs with office closure causing posttraumatic stress with chronic pain. [4] In their Report of Injury/Disease (Form 7) the employer noted the following with respect to the cause of the worker s symptoms employee states that due to everyday use of headset and constant noise in the left ear, she has suffered permanent hearing loss. [5] The worker sought medical attention for her symptoms and was referred to Dr. B. Robinson (Otolaryngology, Head and Neck Surgery). In a report dated February 16, 2002, Dr. Robinson indicated in part: Thank you for this consultation. [The worker] is a 44-year-old female who has a somewhat complicated history. She has been having left ear pain and infection for the last year. This is left-sided mostly. She is on numerous antibiotics. This usually resolves in 6-10 days after the antibiotic has started. On December 28, she noticed hearing loss in her left ear with itchiness and awoke with a rash in her left ear and face on the left side. She had no dizziness at that time. Since that time she has been having noise present at left. She cannot wear her left headset at work because she cannot hear well out of that ear and she has also had 2 or 3 episodes of dizziness in the past 3 months lasting anywhere from hours to days. Audiogram reveals left moderate low frequency sensoneural hearing loss and the right was normal. I ordered an MRI to rule out an acoustic neuroma. She possibly has Meniere s Disease. Her hearing loss in the left ear seems to be quite sudden, as she remembers the date of it, and I wonder whether she has Ramsey-Hunt Syndrome in that side or Herpes Zoster oticus. I have given her Serc to use and I have asked her to keep an agenda of her dizzy episodes. I will see her following those tests. [6] In a decision dated April 29, 2003, a Board Adjudicator advised the worker: The consultation report and audiogram submitted by your Ear, Nose and Throat specialist indicates that you did not have sufficient deafness to allow your claim. For entitlement of health care benefits and a hearing aid, a worker must have a minimum 22.5 decibel loss bilaterally and the pattern of hearing loss must be clearly consistent with occupational noise exposure.

3 Page: 2 Decision No. 2482/16 A factor of 0.5 decibels is deducted for each year you are over 60 (at the time of the hearing test). This calculation accounts for natural deterioration of hearing associated with aging. In your case, the measured loss associated with noise exposure is 7.5 decibels in the right ear and 51.2 decibels in the left ear [7] The worker disagreed with the Board s decision to deny her entitlement for her hearing loss and the matter was reviewed in In Memo #8 of February 24, 2004, a Board Adjudicator confirmed the denial of entitlement noting: Hearing loss is usually same in both ears in this case RT ear is severe noting specialist s report that mentions Meniere s Disease. Noise levels are below 90 dbs. The hearing loss is not caused by the workplace noise exposure. [8] The worker continued to disagree with the Board s decision to deny entitlement for her hearing loss and the matter was eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated June 23, 2005, the ARO denied the worker s appeal confirming that she had no entitlement for her left-sided hearing loss/meniere s Disease. In so doing, the ARO indicated in part: Therefore assuming the diagnosis is Meniere's Disease this condition would not be causally related to the worker's work duties. The reason being from my research I was able to determine that Meniere's Disease is caused by the following: viruses, hereditary predisposition, allergy and autoimmune disorders. These causes would be considered non-compensable in nature. Another cause is head injury. In this case there is no evidence to support a finding the worker is relating her condition to a work related head injury. My research also shows that the majority of people who develop Meniere's Disease are over 40 years of age with equal distribution between males and females. At the time of diagnosis this worker was forty-four years of age. As such the onset of the worker's condition falls within the time frame when this condition develops in the public in general. In addition I looked at whether the worker had unilateral noise induced hearing loss which could be attributed to hazardous workplace noise. To make this determination I reviewed the audiograms of February and December 2002 to determine whether the pattern of hearing loss was consistent with hazardous noise etiology. I found it was not for the following reasons. In the early stages of noise induced hearing loss there is normal or near normal low frequency hearing and a typical loss in the range of two to four kilohertz with recovery in the six and eight kilohertz range. The worker's audiograms of February 2002 and December 2002 do not conform to this pattern. In addition the worker claimed her hearing loss came on suddenly as according to the specialist she remembered the date of onset that being December 28, This also is atypical of a noise induced hearing loss case. Noise induced hearing loss is insidious in its onset as it develops gradually over time and in many cases it is not the worker but rather another party who first notices the hearing loss.

4 Page: 3 Decision No. 2482/16 Also I note there is no specific diagnosis on file from the worker's specialist indicating that the worker's hearing loss is noise induced and related to her work activities as a telephone operator. I also looked at the WSIB's policy relating to traumatic hearing loss. The circumstance surrounding the onset of the worker's hearing loss would not satisfy the entitlement criteria. (ii) Issue on appeal [9] The issue to be determined in this case is whether the worker ought to be granted initial entitlement for her left-sided hearing loss/meniere s Disease which she claims can be causally related to the nature of her employment as a telephone operator. (iii) The worker s testimony [10] Under questioning from her representative the worker testified that she started with the accident employer in about 1993 and always worked as an operator. She worked a variety of shifts, averaging about 37.5 hours a week. She testified that her job involved answering telephone calls placed to the operator as well as 411 information calls and eventually 911 calls. In order to perform her job, she wore a one-sided headset that had a rubber piece which was inserted into her left ear. [11] The worker testified that each time she received a call, it would be announced by a beep into her headset. Occasionally, a call would be announced with a very loud ring in her ear and 1 in 10 calls might have a very bad connection. There would also be occasions when answering 911 calls, that the person on the line would be speaking very loudly or yelling. [12] The worker testified that each of the operators had their own headset. Their usual practice was to change the rubber ear piece whenever it became worn. This practice changed however, about two years prior to the closure of the worker s office. The worker testified that at that point, the employer advised they did not have the necessary budget to provide replacement ear pieces and instead, staff were instructed to wash their ear pieces with alcohol. [13] The worker testified she had never experienced infections as a child and prior to the events under consideration here, had excellent hearing. In her last two years with the employer however, the worker had many many ear infections. She was prescribed a variety of antibiotics and also treated herself with various oils. The worker was of the view that the repetitive ear infections were due to her being unable to change her headset. She testified that she told the family doctor about her situation and he suggested that it might be related to the headsets. [14] The worker testified that on December 28, 2001, she woke up deaf on the left side. She went to a local hospital emergency department with symptoms that included the deafness on the left side as well as a humming sound in her left ear. She also had a rash on the left side of her body running from her head down to her waist. The emergency department physician felt that she may have experienced an allergic reaction and she was prescribed more antibiotics. [15] The worker continued to perform her duties with the accident employer even though she continued to experience her left-sided hearing loss. She wore her headset on the right side. As she continued to experience symptoms of dizziness and vertigo, she was referred to Dr. Robinson who thought she might be suffering from Ramsey Hunt Syndrome. The worker testified that she did further research of her own and thought her symptoms might be consistent with a diagnosis

5 Page: 4 Decision No. 2482/16 of Meniere s Disease. The worker mentioned this to her doctor who referred her for further assessment with Dr. Schramm. The worker testified that Dr. Schramm subsequently confirmed the diagnosis of Meniere s Disease. [16] The worker continued with the accident employer until the office was closed in March At that point, she was able to find another job with a hospital working on its switchboard. She continued working in that capacity for about two years, until her employment was terminated following symptoms of vertigo experienced over a number of consecutive days. She has not worked since about 2006 and is currently in receipt of CPP Disability benefits. [17] The worker testified that she continues to experience the symptoms of Meniere s Disease. These include a feeling of constant dizziness and a sensation like her head is always stuffed. She also has symptoms of tinnitus in her left ear. Her dizziness and vertigo are such that she is never certain when she might fall. She has fallen on a number of occasions. The worker testified that she has also continued to experience infections in her left ear since leaving the accident employer. She denied having any ongoing symptoms in her right ear. [18] With respect to her medical history, the worker noted that she had been experiencing migraines for close to 40 years following an accident in which she was struck from behind by a snowmobile. She has also suffered from depression/anxiety since that accident. The worker also had pre-existing psoriasis/eczema and irritable bowel syndrome. The worker testified there is no history of Meniere s Disease or hearing problems throughout her very large extended family. (iv) Analysis [19] Since this claim has an accident date in 2001, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [20] At the commencement of the hearing, Ms. Fischer acknowledged that the evidence on file did not satisfy the requirements of the Board policy concerning noise/induced hearing loss or traumatic hearing loss. It was Ms. Fischer s position therefore, that this claim ought to be adjudicated on a disablement basis. It was Ms. Fischer s position that the worker s left-sided hearing loss/meniere s Disease could be causally related to the nature of her employment as an operator and in particular, infections which resulted from being required to wear a left-sided headset. [21] It is now well established in Tribunal case law that in dealing with matters of causation, the Tribunal employs a significant contributing factor test. In order to be successful in this claim, the worker must establish that the workplace made a significant contribution to the onset of her left-sided hearing loss/meniere s Disease. It is not necessary that the workplace be the only contributing factor and entitlement may be granted even in situations where there are a number of significant contributing factors as long as the workplace also contributed significantly. [22] It is also worth noting that in dealing with matters of causation, the possibility of a relationship is insufficient grounds upon which to grant benefits. The evidence must establish that the relationship is more probable than not. It is also worth noting that the Panel does not dispute (nor did the employer dispute) that the worker is suffering from Meniere s Disease and associated left-sided hearing loss. The Panel also appreciates the nature of the symptoms the worker continues to experience as a result of this diagnosis and understands that these symptoms have had a significant impact on her activities of daily living. That being said however, the issue which this Panel must determine is whether the worker s duties with the accident employer, and

6 Page: 5 Decision No. 2482/16 in particular the requirement to wear a left-sided head-set, made a significant contribution to the development of her Meniere s Disease and hearing loss. After reviewing all of the evidence before us, the Panel concludes that the workplace duties did not make a significant contribution to her Meniere s Disease/hearing loss. We interpret the evidence before us to suggest that such a relationship is only possible rather than probable. In reaching that conclusion, we have taken particular note of the following: In a report dated May 20, 2010, Dr. J. Chapnik (Otolaryngology Head & Neck Surgery Mt. Sinai Hospital) noted the following in response to a request from the worker s previous representative: I am writing you at the request of [the worker]. I have seen [the worker] on two occasions, April 29, 2004 and May 19, Regarding the visit of April 29, 2004, my consultation to Dr. B. Robinson (the referring physician) is attached. I am also attaching my report to the WSIB of April 11, These reports are self-explanatory. When examined on May 19, [the worker] complains of persistent buzzing in the left ear. She also feels that she has no useful hearing in the left ear and still suffers from dizziness. A new symptom has also developed. Over the past year, she has developed right-sided humming tinnitus and hearing loss. She denies any family history of hearing loss. The pure-tone hearing thresholds in the left ear have remained stable. The speech recognition score in the left ear has actually improved from 36 percent in 2004 to 56 percent in On the right side, there has been a slight decrease in her hearing, but for all practical purposes, her hearing is still in the normal range on the right side. You asked four questions, which I will now answer. Question l: Does the worker have a confirmed diagnosis of Meniere's Disease? Most likely she does have Meniere's Disease in the left ear. This was the referring diagnosis from her otolaryngologist Dr. Robinson in the referral letter dated December The history of hearing loss with tinnitus and vertigo as well as a normal MRI would be in keeping with Meniere's Disease. Question 2: In your medical opinion were [the worker s] recurring ear infections the cause of her Meniere's Disease? In general, ear infection, whether it be infection of the ear canal or middle ear: is not a recognized caused of Meniere s Disease. However, stress is an important factor in the perpetuation of Meniere s Disease and perhaps the stress of her ear infections had some effect on the Meniere s Disease. This is conjectural only. Question 3: In your medical opinion, did [the worker s]"wearing of a headset that had a rubber insert into the left ear" and/ or her "use of alcohol to clean it (the rubber inserts)" cause the ear infections? I cannot comment on this since I did not treat any of her ear infections. This question would best be directed to her treating physician at that time or to Dr. Robinson. Question 4: Has [the worker s] work, as a telephone operator with [the employer], been a contributing factor in her hearing loss and/ or Meniere's Disease claims?

7 Page: 6 Decision No. 2482/16 This is a difficult question to answer since there is no direct relationship to either noise exposure or infections of the ear canal or middle ear being recognized as a cause of Meniere s Disease. However, as stated above, perhaps the stress associated with the ear infections may have aggravated the Meniere s Disease. Again this is conjectural only. As noted above, Dr. Chapnik, a specialist, confirms the presence of hearing loss and the diagnosis of Meniere s Disease but notes ear infections are not a recognized cause of Meniere s Disease. Dr. Chapnik also saw the worker previously on about April 29, 2004, and in the report which followed that assessment, Dr. Chapnik, while confirming that the worker has left-sided Meniere s Disease, did not provide an opinion as to its cause. In a report dated July 16, 2003, Dr. D. Schramm concluded: This pleasant 45-year-old lady was referred by Dr. Robinson for evaluation of her vertigo and possible Meniere s Disease. She notes that she had an onset of vertigo approximately 1-1/2 years ago, after an episode of what seemed to be Ramsay-Hunt Syndrome. Since then she had constant aural fullness and tinnitus that she described to be loud like a motor that can vary in pitch but never in rate. Likewise, she knows that her vertigo was initially present for about 5 hours today to many days and that during her episodes of vertigo it would in a left to right direction. At that time she was also having approximately 1-2 episodes per week. Aside from the history of Ramsay-Hunt Syndrome, the patient cannot relay a history of head injury or performance in physical activity that required a great amount of straining. She had not noted any particular loss of hearing. She notes as well as demonstrates that she is quite emotional about her health, and the changes that have happened over the last 1-2 years. Her medical history is significant for a snowmobile accident approximately 25 years ago when she described it resulting in some sort of spinal injury, although she related no definitive surgery as a result of this accident. She does note that she has had migraines since the time of her accident, which are usually in the left frontal area. Her medications are as previously described and include Serc and Hydrochlorothiazide. This patient has dizziness that occurred seemingly after a viral illness. She also has symptoms in keeping with Meniere s Disease. It is uncertain whether this is a primary Meniere s Disease or if this is the result of a neuronitis from the viral illness. The Panel notes that Dr. Schramm, while confirming a diagnosis of Meniere s Disease, does not suggest it was related to the worker s duties with the accident employer. In a report dated July 10, 2006, the worker s family physician, Dr. H. Bahmann, noted:

8 Page: 7 Decision No. 2482/16 [The worker] was a telephone operator for [the employer] in 2000 when she experienced recurring ear infections and was prescribed antibiotics every other month for about seven occasions. She was wearing a headset that had a rubber insert in her left ear. This was never changed because closure of the office was imminent. The rubber piece was never changed and in 1-1/2 years and since she had to use alcohol to clean it, it got very tacky and contaminated leading to ear infections and eventually Meniere s Disease. It got so bad over a few years that she had to quit work and was given Canada Pension in January The Panel finds it is able to give little weight to this opinion provided by Dr. Bahmann, the family physician. The report was written about four years after the onset of the worker s symptoms and rather than providing an explanation of how the worker s Meniere s Disease might be related to the nature of her employment, the report appears to merely repeat the worker s theory of causation. In her report of February 16, 2002, Dr. Robinson concluded that the worker possibly has Meniere s Disease. Her hearing loss in the left ear seems to be quite sudden as she remembers it and I wonder whether she had Ramsay-Hunt Syndrome in that side or Herpes Zoster oticus. Dr. Robinson does not opine that these diagnoses are related to the nature of her work duties. The case material also includes various internet articles provided by the worker and her representative. One article entitled Meniere s Disease by Dr. J. Harris, MD, PhD, notes: Causes There are many forms of Meniere s Disease and several possible causes. It is generally felt that the majority of cases are idiopathic, that is, that no specific cause will be identified. Some cases can be caused by head or ear trauma, some by middle ear infection, some by autoimmune or allergic problems, some by inner ear syphilis and on occasion, by a virus. Another internet article entitled Meniere s Disease from notes: Causes: The exact cause and reason why Meniere s Disease starts is not yet known. Many theories have been proposed over the years including circulation problems, viral infections, allergies and auto immune reaction, migraine and the possibility of a genetic condition. Experts are not sure what generates the symptoms of an attack of Meniere s Disease. A review of the internet material provided suggests that there is no consensus on the cause of Meniere s Disease. As noted in the article from Dr. Harris, the majority of the cases are idiopathic, i.e. no specific cause will be identified. Even accepting, for the sake of argument, that an infection is a possible cause of Meniere s Disease, the possibility of a relationship is, as was noted earlier, insufficient grounds upon which to grant entitlement to benefits. As noted, in the initial Form 6 and Form 7, the worker initially claimed that her hearing problems were due to noise exposure rather than an infection.

9 Page: 8 Decision No. 2482/16 [23] As noted earlier, the Panel does not dispute that the worker may currently be suffering from symptoms of Meniere s Disease with associated left-sided hearing loss. The Panel is not required to determine the cause of this condition. The issue which we must decide is whether the nature of the worker s job duties made a significant contribution to the onset of that condition. Given the nature of evidence currently before us, we find that at best, there is only a possibility of a relationship between the worker s Meniere s Disease and her employment and that is not sufficient to grant the worker s appeal. We are also satisfied, from reviewing all of the material before us, that the evidence for and against the worker s claim is not approximately equal in weight and as such, she is not entitled to the statutory benefit of doubt.

10 Page: 9 Decision No. 2482/16 DISPOSITION [24] The worker s appeal is denied. DATED: November 24, 2016 SIGNED: R. Nairn, B. M. Young, C. Salama