Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene Hickey Chief Review Commissioner The Review Proceedings 1. This review application hearing was held at the Review Division office in Mount Pearl, NL on March 3, The worker attended the hearing and was represented by Randy Simms, of the Government Members Office. 2. WorkplaceNL also participated in the hearing and was represented by Kathy Fry, Review Division representative for WorkplaceNL. Paul Tobin, an internal review specialist with WorkplaceNL, also attended the hearing as an observer. Introduction 3. The worker has applied to WorkplaceNL for coverage for industrial hearing loss. The worker s audiogram confirms a hearing loss bilaterally; however, the worker s employment exposure has not been confirmed to have occurred in this Province. 4. The worker began his employment as a welder at a shipyard in this Province in 1979 and was employed for approximately two years from 1979 to It is this employment the worker has identified as the employment which exposed him to hazardous noise levels which led to his current hearing loss. 5. The worker has an extensive employment history, however, much of it does not relate to employment in this Province. The worker presented over 30 years of work history in a variety of work environments, 6. The worker initially requested coverage from WorkplaceNL in 2008; however, he was advised by WorkplaceNL to submit an audiogram at that time. The audiogram provided to WorkplaceNL is dated May 8, The worker consulted with an ENT specialist in relation to ear disease in The worker was subsequently diagnosed with tymphanosclerosis of the left ear in a report of May 8, The worker also had several periods of self-employment in this Province for which WorkplaceNL noted he did not obtain optional personal coverage. 1

2 9. As the worker did not provide an audiogram within five years of his last exposure to hazardous noise in this Province, and as confirmation of a long period of exposure to hazardous noise in this Province could not be confirmed, WorkplaceNL denied the worker s request for coverage pursuant to Policy EN-12: Hearing Loss. This was communicated to him initially in a decision of the intake adjudicator in September, The worker appealed the intake adjudicator s decision and the internal review specialist upheld the denial in his decision dated October 30, It is this decision the worker is appealing before me. Issue 11. The worker is requesting a review of a decision of WorkplaceNL dated October 30, The worker requests I find WorkplaceNL erred in determining he is not entitled to compensation for industrial hearing loss. Outcome 12. The decision of October 30, 2015 is in accordance with the Act and policies. With respect the worker s request is denied. There is no change in the status of the worker s request for benefits for hearing loss. Legislation and Policy 13. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and Also relevant and considered in this case are Sections 19(1) and (4), 38, 43(1), 60(1), 73.1, 84, 85 and 90.1 of the Act, along with Policy EN-12: Hearing Loss. Relevant Submissions and Positions 15. At Mr. Simms request the worker offered the details of his early years of employment while employed at a fish plant and subsequently at the shipyard. The worker testified it was while he was working at the shipyard he noticed deterioration in his hearing. He indicated he worked at the shipyard from 1979 to July 1981 when he left for personal reasons. 16. The worker explained the nature of his employment as a fitter welder at the shipyard. He noted there was no hearing protection provided and everyone employed there were the same in that there was no hearing protection provided for any employees. The worker indicated many of the individuals who were employed at the shipyard went on to require hearing aids. 2

3 17. Reference was made to correspondence of July 2, 2015 from the human resources manager at the shipyard as supporting the worker s position. The worker indicated the human resources manager now wore two hearing aids. The correspondence stated: This letter will certify that [the worker] was employed by [the employer] as a steelworker, and welder. Unfortunately [the worker s] employment records have been archived and are not readily available to provide accurate dates of employment however his approximate dates would be the late 1970 s to the early 1980 s. As the HR Manager and a long time employee of the Company I am extremely comfortable in verifying [the worker s] employment. Hearing protection protocols were not introduced at the facility until approximately During his working career there were no audiograms or assessments done on any of the workforce. For your information I have included job descriptions for the positons noted above. 18. The worker stated he went on to continue his employment in various parts of the country. Mr. Simms noted the worker s employment history was recorded in the file from 1979 to Mr. Simms noted the community has come together to address some of the health problems arising from this particular workplace. The worker s concern with respect to his hearing loss was noted to be an example of the unfairness to the employees who worked at the shipyard. 20. Mr. Simms urged me to accept that, on the balance of probabilities, by way of Policy EN- 20: Weighing Evidence, the worker s hearing loss arose out of his employment as a welder in the shipyard. Mr. Simms and the worker recognized the extensive employment the worker has engaged outside the Province over the past 30 plus years, however, the hearing loss, it was argued, began in the workplace in this Province. 21. It was also argued the Exceptional Circumstances provision of the Policy applied in this case given the nature of the occupational concerns arising from this specific worksite. The strict application of the Policy to this claim was submitted as resulting in an unintended and unfair result. 22. Upon questioning, the worker indicated he was aware WorkplaceNL had requested an audiogram in 2008, however, he could offer no explanation as to why he did not obtain the audiogram at that time. Furthermore, the worker could not offer a reason as to why, with such profound hearing loss, he did not obtain an audiogram in the intervening years. 23. The worker acknowledged the consultations he had with the ENT specialists, however, he indicated he was advised there was no infection or anything else wrong with his ears to account for his hearing loss. 24. It was also noted by the worker that he had inquired with the workers compensation board in Alberta with respect to the provision of hearing aids. The worker indicated he was waiting for the outcome of his request from WorkplaceNL in this Province before exploring benefits in Alberta. 3

4 25. The position of WorkplaceNL is outlined by the internal review specialist in his decision of October 30, The internal review specialist outlines his review of the evidence and its application to Policy EN-12: Hearing Loss. The internal review specialist concludes with the following: From review of your file I note you have produced an audiogram completed in 2015; however none completed during your employment or within the 5 years since your last exposure in the province of Newfoundland and Labrador. Evidence in favour of your claim includes the work history of working at [another employer] from 1979 to There has been no audiology report within the 5 years following that employment submitted to WorkplaceNL. Medical evidence does not confirm the presence of hearing loss in the years subsequent to that short-term employment. I find this weighs against your claim for compensation. You also have produced a 20 year history of working outside the province in noisy environments where WorkplaceNL has not been provided any noise readings from those environments, and any exposures to hazardous noise are not compensable in Newfoundland and Labrador. I find this does not favour your claim for compensation. There are 2 periods of self-employment in this province; however evidence is not confirmed that optional personal coverage was obtained by you in order to be eligible for compensation for a (sic) exposure during these periods. Also there are no noise level readings from the work within the province and your latest employer. [The employer] confirmed that none of the jobs with them required hearing protection or were areas for which there was hazardous noise exposure. I find this does not support your claim for compensation. In my review I have considered your application for compensation for hearing loss and reviewed the audiology report of May 2015, your employment history dating back to 1979, the record of any confirmed exposures, and the eligibility requirements of Policy EN-12. I find the weight of evidence does not support compensable hearing loss eligibility. On the balance of probabilities I find that the Intake Adjudicator has appropriately weighed the evidence, and the decision of September 15, 2015 to deny your claim for compensation for industrial hearing loss was made in accordance with Legislation and Policy. 26. Ms. Fry expanded upon the position outlined by the internal review specialist. She submitted in the absence of an audiogram within five years of the last hazardous exposure, WorkplaceNL cannot accept the worker s subjective view his severe hearing loss is related to two years of employment occurring 35 years ago. 27. The Policy provision is quite clear Ms. Fry stated. She noted entitlement is based on a work history of hazardous noise exposure and an audiogram within the last five years. In this case, the worker does not meet the Policy requirements. The worker s exposure in this Province ended in She noted the majority of his other employment occurred out of this Province, albeit likely in environments which she suggested could have also exposed the worker to hazardous noise affecting his hearing loss. 4

5 28. Ms. Fry noted Policy EN-12: Hearing Loss was revised in April At the time of the revision a window of a further five years, up to 2009 was provided to workers to submit claims without the requirement for audiograms. Those claims were to be adjudicated according to their individual merits. Had the worker submitted his audiogram in 2008 when he first applied to WorkplaceNL or in reply to the request of WorkplaceNL at that time, the worker could have been considered under those implementation provisions around the new Policy. 29. It was also noted the worker suffered from a type of ear disease. This, according to Ms. Fry, was likely the reason for referral to an ENT specialist by the family physician initially. She noted the worker has also been diagnosed with tymphanoscolerois and this could have affected the worker s hearing. 30. Ms. Fry reviewed much of the file evidence and the claim notes and concluded by stating the worker s lack of exposure to hazardous noise in Newfoundland and Labrador for a prolonged period of time, the failure to provide an audiogram within the established period of time and the extensive work history outside of this Province likely contributing to his hearing loss, resulted in WorkplaceNL not being able to extend the benefit of doubt to the worker or to apply the Exceptional Circumstances provisions of the Policy. Analysis 31. In this case, the evidence confirms the worker to have a severe hearing loss. It is noted to be a loss of 55 decibels bilaterally. The only audiogram on the file is recorded to be May 8, May 8, 2015 is also the date of the report of the ENT specialist who initially examined the worker. That report noted the worker to have a diagnosis of tymphanosclerosis. The condition of cholesteatoma is also queried, which appears to have resulted in the referral to another ENT specialist whose report is dated June 18, That report confirms the tymphanosclerosis condition. The cholesteatoma condition queried appears to have been excluded at that time. 32. Though the tymphanosclerosis condition is diagnosed, this is not the reason for the denial by WorkplaceNL. The denial is based upon the timing of the audiogram and the timing of the worker s exposure to hazardous noise in this Province in relation to the Policy requirements with respect to entitlement considerations. Though the worker expressed some annoyance relating to why WorkplaceNL will only recognize noise exposure in this Province and not in the other provinces, I note Section 38 of the Act confirms the Act applies to workers and employers engaged in an industry located in this Province. It is for this reason WorkplaceNL cannot consider his lengthy employment history outside Newfoundland and Labrador. 33. The worker s employment history in this Province has been considered by WorkplaceNL. It is noted the worker has, for most of his working life, been employed in British Columbia, Ontario, Saskatchewan and Alberta in addition to his brief periods of employment in Newfoundland and Labrador. I note the nature of the worker s employment history included employment in a rock crushing facility and a garbage truck manufacturing facility which the worker indicated had sledge hammers going all day. The extent of that employment history, noted to be out of Province, began in 1981 and ended with the beginning of his self-employment in this Province in

6 34. The only confirmed recent exposure to hazardous noise in this Province was for a two and one half month period from July 30 to October 20, In light of the other evidence, I cannot accept this limited exposure contributed to the worker s current severe hearing loss as hearing protection was also worn during this employment and the duration was not prolonged. 35. Mr. Simms pressed me to consider awarding benefits to the worker given the extent to which many workers have been affected by employment in the shipyard. Further, he urged me to direct WorkplaceNL to follow up on these types of issues generally as they relate to this employment, in this workplace. With all due respect to Mr. Simms and workers who may be affected with any broader issues arising from this worksite, I cannot offer such direction as my authority does not extend to these types of matters. 36. While the Review Division has the procedural powers of an "investigating body" according to Section 27(2) of the Act, it does not have the jurisdiction of an investigating body under the Act. Under Section 19, it is WorkplaceNL who investigates and determines. It has exclusive jurisdiction to do this. The Review Division is authorized to review the resulting decision for compliance. The Review Division does not continue the investigation process. It may remit the matter back to WorkplaceNL for further follow-up, but only if it is first established WorkplaceNL made an error. 37. The function of the Review Division is to review decisions of WorkplaceNL, as they are made. It reviews the correctness of the decisions for their compliance with the Act, regulations, and policies. Beyond this, it does not have a broader oversight function over WorkplaceNL s operations. It is limited to reviewing each decision to determine if WorkplaceNL followed the required provisions, based on the evidence before WorkplaceNL at the time. That is the essence of the review for error model. 38. Also, the review for error model does not extend to reviewing the statutory provisions, or the policy provisions, for their desirability. The legislature establishes statutory provisions and WorkplaceNL establishes Policy. This was established in Piercey v. Workplace Health, Safety and Compensation Commission (Nfld. & Lab.) (2004), where it was found that; [35] The Review Division, and a commissioner of that division, has a "narrow jurisdiction" A review commissioner may examine the decision of the Commission only for the purpose of determining if it is 'in accordance with the Act, regulations or policy'. 'In accordance with' means 'in agreement with' or 'in conformity with'. It is the commission with makes policy. The Review Division has no power to substitute different policy which a review commissioner might view as being a better policy. In other words, it is not the policy itself which is being reviewed it is the decision of the Commission. 39. Therefore, it is well established my authority and my role within the Act is to review decisions of WorkplaceNL for compliance with the relevant policy and legislative framework outlined by the Act. I have no ability to order some broader investigation or inquiry into the workplace, generally. For that, other avenues will have to be pursued. I 6

7 am confined to the decision under review and the current issue before me, which is WorkplaceNL s handling of the evidence relating to this worker s hearing loss. 40. In light of this I note Policy EN-12: Hearing Loss sets out five conditions to be considered when assessing a hearing loss claim. It states: Hearing loss that develops slowly over a long period of exposure to continuous or intermittent hazardous noise levels is referred to as noiseinduced hearing loss. The following conditions will be considered to determine entitlement to compensation for noise induced hearing loss caused by hazardous noise in the workplace: 1. A full work history is provided and actual or estimated noise level readings from one or more of the employments indicate that the worker has been exposed to hazardous noise levels. 2. Noise levels will be considered hazardous where there is evidence of: a. continuous noise exposure for two years or more at eight hours per day at 85 db(a), or a threshold limit value with a 3 db(a) exchange rate for levels other than 85 db(a); or, b. intermittent noise exposure for a five year period at eight hours per day at 85 db(a), or a threshold limit value with a 3 db(a) exchange rate for levels other than 85 db(a). The threshold limit value is a guideline for noise exposure which incorporates sound pressure levels in db and duration of exposure to determine the hazard. The Occupational Health and Safety Regulation states that permissible noise levels in this province will be based on the standards issued by American Conference of Government Industrial Hygienists (ACGIH). A threshold limit value of 8 hours at 85 db(a) is hazardous and uses the 3dB exchange rate. Therefore, 88 db(a) is hazardous at 4 hours of exposure and 82 db(a) would be hazardous after 16 hours of exposure. 3. Hearing loss caused by exposure to occupational noise has been evaluated, by averaging the four speech frequencies, 500, 1000, 2000, and 3000 Hertz, in each ear separately, and the loss is 25 decibels or more in each ear. While noise induced hearing loss is typically bilateral, asymmetric sources of noise, such as sirens or gunshots, can produce asymmetric loss. When evaluating cases of asymmetric loss, a referral to rule out retro-cochlear lesion is first warranted before attributing the loss to noise. 4. Hearing loss entitlement decisions will be based on: 7

8 a. An audiological assessment performed by an audiologist, using the standard reporting requirements established by the Commission, and the requirements outlined in 2(a) or (b) have been met; b. For those workers who are no longer exposed to hazardous noise levels in the workplace because they have either changed workplace locations or have left their employment, the Commission will consider an audiogram performed at the time of termination of exposure to hazardous noise levels or an audiological assessment performed within five (5) years of the last exposure to hazardous noise. 5. Allowance for presbycusis is 0.5 db(a) reduction for each year over the age of I note, as did WorkplaceNL, there is an extensive history of employment outside the Province. By the worker s testimony he confirmed many of these worksites exposed him to significant, if not excessive noise. The noise produced in a rock crushing facility or exposure to noise from sledgehammer use are, more likely than not, the exposures which likely contributed to the worker s current hearing loss, in the absence of a greater weight of evidence to the contrary. 42. In addition, the fact the worker did not pursue entitlement for hearing loss for nearly 30 years, is not evidence which weighs in his favour. Even leaving aside the technical requirement that the audiogram was not presented in the time recognized by the Policy, the delay in the reporting does factor into the weighing process, on the merits of the claim. It would be expected that had the worker experienced hearing loss arising from the shipyard employment, he would have pursued benefits much sooner as, no doubt, he would have required hearing aid assistance long before he actually applied for benefits. 43. The weight of evidence on this claim confirms whatever hearing loss the worker has would be likely noise induced relating to hazardous noise exposure during his employment outside this Province. The worker has confirmed, by way of his testimony, his exposure to excessive levels of noise for prolonged periods during his employment. This exposure, being outside the Province, does not qualify as exposure covered by WorkplaceNL. 44. Having considered the position of the worker, the relevant sections of the Act and Policy EN-12: Hearing Loss, I find the internal review specialist did correctly apply the Policy to the entitlement determination, and I find the decision to be in accordance with the Act and Policy. 45. Further, when a decision of WorkplaceNL is compliant with a policy and its decision does not offend the Act, a Review Commissioner has no power to intervene in the decision. Section 26.1 of the Act states: A review commissioner shall be bound by this Act, the regulations and policy. It is only upon a finding of an error by WorkplaceNL in the application of a policy can a Review Commissioner set aside a decision of the WorkplaceNL. Policy EN-12: Hearing Loss is valid under the Act, and it is binding on the Review Division under Section

9 46. With respect to the application of the Exceptional Circumstances provision of the Policy in this case, I find, considering the evidence, the application of the Policy is not producing an unintended result. This worker s exposure to hazardous noise has not been confirmed to have occurred in the Province nor is there any direct evidence suggesting it has even contributed to the worker s hearing loss. 47. With all due respect to the worker, he appeared as a genuine and hardworking individual with a continuous record of employment. He may believe his employment in this Province, particularly the employment in the shipyard, has contributed to his hearing loss, however, when the evidence is viewed on the balance of probabilities, I find the weight of evidence confirms it has not. The evidence, i.e. two years of exposure which occurred 35 years ago, when the worker was around of the age of 25, which was not investigated for 35 years, for which there is no previous audiogram and with an extensive employment history outside the Province, does not weigh in the worker s favour considering the requirements of Policy EN-12: Hearing Loss and Policy EN-20: Weighing Evidence. 48. I have reviewed the decision of the internal review specialist and find he has demonstrated the appropriate considerations of the Policy requirements. I do not detect an error in the application of the Act and policies. The decision of October 30, 2015 is confirmed. 49. As noted at the hearing, other provincial worker s compensation boards may also consider claims for hearing loss and I encourage the worker to submit those claims in the respective provinces to determine whether or not entitlement to hearing aids exists for him. As the evidence currently exists, however, the worker is not entitled to benefits for hearing loss under the Newfoundland and Labrador workers compensation system. Decision 50. The decision of October 30, 2015 is in accordance with the Act and policies. With respect the worker s request is denied. There is no change in the status of the worker s request for benefits for hearing loss. Review Denied Marlene A. Hickey Chief Review Commissioner March 11, 2016 Date 9