WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2275/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2275/15 BEFORE: S. Netten: Vice-Chair HEARING: October 23, 2015 at Toronto Written DATE OF DECISION: October 29, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2443 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated March 18, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Not participating None 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. 2275/15 REASONS (i) Issue [1] The issue under appeal is the date of accident for the worker s noise-induced hearing loss (NIHL), presently established as May 31, (ii) Overview [2] The worker filed a claim for NIHL on August 15, On January 12, 2012, the Board accepted that the worker had been exposed to sufficient hazardous noise during his employment from 1975 to date. The worker was granted entitlement to health care benefits and a non-economic loss (NEL) award based upon an audiogram and medical report of May 31, The worker s request to have the date of accident changed to October 26, 1989 (leading to a permanent disability benefit rather than the NEL award) was denied on February 3, [3] The worker s objection to this decision was further denied at the appeals level of the Board in March [4] The worker now appeals to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. The worker relies upon his former representative s submissions to the Board. These submissions, dated January 29, 2014, assert that the worker had sufficient hearing loss to constitute a permanent disability from October 26, 1989, as documented in company test results. (iii) Law and policy [5] Whether the Workers Compensation Act or the Workplace Safety and Insurance Act (WSIA) applies to this appeal depends upon my decision with respect to the date of accident. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the WSIA apply to the appeal. In particular, section 126 of the WSIA requires the Tribunal to apply Board policy when making its decisions, regardless of the accident date. [6] Board policies on NIHL (Operational Policy Manual ( OPM ) Documents No and ) describe sensorineural noise-induced hearing loss as an occupational disease resulting from exposure to hazardous noise. Hearing loss is calculated based upon hearing levels averaged across the four speech frequencies of 500, 1000, 2000 and 3000 Hertz. For accident dates prior to January 2, 1990, entitlement to permanent disability generally begins with a 35 decibel loss in the worse ear and a 25 decibel loss in the better ear; for asymmetrical loss the better ear may be less than 25 decibels in certain circumstances. For accident dates from and after January 2, 1990, entitlement to a NEL award begins with a bilateral hearing loss of decibels, or an asymmetrical loss of 32.5 decibels in the worse ear and 25 decibels in the better ear. [7] With respect to the date of accident, the policy for pre-1990 accidents states: Permanent disability entitlement is considered to begin on the date notification of the claim is received by the WSIB, however, an entitlement date may be altered if hearing loss prior to that date can be clinically established and confirmed by the adjudicator.

3 Page: 2 Decision No. 2275/15 [8] The policy for post-1990 accidents does not have a similar provision, though a chart summarizing the guidelines indicates that the accident is the earlier of 1) the date of the claim, or 2) the date of documented evidence for the hearing loss. [9] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Discussion [10] Reports on file from WMC Mobile Hearing Testing confirm that the worker participated in a hearing conservation program at work, such that his hearing was tested approximately every two years from 1982 onwards. The worker was given a summary of his hearing results and, in 1982, 1999, 2001, 2006 and 2011, it was recommended that he follow up with an examination by a doctor or hearing specialist. [11] The worker informed the Board s NIHL adjudicator in December 2011 that he had seen a specialist in the early 1980s, name unknown; while the doctor had confirmed that the worker had difficulty hearing someone behind him, hearing aids were not recommended. There are no records of this visit on file. The worker explained in his letter to the Tribunal of June 3, 2015 that he had hearing loss prior to 2011, noting higher noise levels in the 1980s and 1990s, but he only filed a claim after he had been told to get hearing aids. [12] The mobile hearing test results from 1982 to 2006 generally ranged from 35 to 40 decibels (averaged across the four speech frequencies) in the left ear and 20 to 30 decibels in the right ear. The results were often slightly better or slightly worse, at different frequencies, from one test to the next. In March 2011, the results had worsened to 45 decibels in the left ear and 36 decibels in the right ear. [13] The worker saw otolaryngologist Dr. L. Minz on May 31, She noted likely noise-induced hearing loss, and recommended hearing aids. The audiologist s report of the same date set out air conduction (AC) and bone conduction (BC) thresholds, speech recognition thresholds, the type and degree of loss, and impedance and stapedial reflexes results. The audiologist considered the test reliability to be good. The BC thresholds averaged (as confirmed by the Board audiologist in February 2012) decibels in the left ear and decibels in the right ear, prior to adjustment for presbycusis. [14] The worker s former representative calculated the average loss in May 2011 at 42.5 decibels in the left ear and decibels in the left ear, utilizing the unmasked AC thresholds. As explained in the Tribunal s medical discussion paper on Hearing Loss and Tinnitus 1, AC hearing thresholds are obtained using headphones alone, whereas BC thresholds are obtained by placing a bone vibrator over the mastoid to stimulate the inner ear. Since AC and BC thresholds should be the same in a pure sensorineural hearing loss, when these are different the BC thresholds are used to measure the sensorineural hearing loss. [15] The worker s accepted hearing loss in May 2011, based upon an audiologist s evaluation, was thus considerably better than that suggested by the mobile hearing test results just two months earlier: 36.25/28.75 rather than 45/36. The May 2011 audiologist s results were also better than those reported through mobile hearing testing for the left ear from 1985 to The 1 Prepared by otolaryngologist Dr. J. Rutka, revised July 2013, and included in the case materials for this appeal.

4 Page: 3 Decision No. 2275/15 Board s NIHL adjudicator wrote in February 2014 that the mobile hearing tests are not performed by audiologists, sound-proof booths are not used, and additional components to ensure accurate testing such as BC thresholds, speech recognition scores and impedance testing are not included. The worker has not provided any evidence to dispute this. While I have no corroboration of the sound-proofing available for mobile testing, I note that the test results are not signed by an audiologist or physician (one result noted the name of a tester ), and they do not include reference to any of the additional types of testing. Significantly, only a single result at each frequency, presumably the simpler AC threshold, is shown on the mobile test reports, rather than results for both AC and BC thresholds, masked or unmasked, as may be found on an audiologist s report. In addition, Board correspondence to the worker s specialist (December 2011) indicates that the patient must be out of noise for 48 hours prior to testing, a requirement which would not likely have been met for worksite testing. These factors likely explain the difference in test results between the mobile hearing testing and the audiologist in spring As a result, I agree that the mobile hearing test results, undertaken for screening purposes in the context of a workplace hearing conservation program, were not a reliable measure of the worker s specific levels of sensorineural hearing loss between 1982 and [16] Unfortunately, the worker did not file his claim at an earlier date, and he did not retain copies of his hearing assessment in the 1980s. The information about this assessment provided by the worker does not support that he had sufficient hearing loss for entitlement to NIHL at that time, particularly given that no treatment or follow up was required. Moreover, despite the screening information given to him by the workplace hearing conservation program, the worker apparently did not consider his hearing loss sufficient to pursue medical assessment between the early 1980s and 2011, nor was he referred for hearing aids at an earlier date. Thus, while the worker may have had some hearing loss during this period as suggested by the screening results, I do not find on the evidence before me that such hearing loss met the threshold for NIHL entitlement pursuant to Board policy. [17] In summary, given the apparent deficiencies of the mobile hearing test results and the absence of any health professional s report of hearing loss prior to May 2011, I find that sufficient hearing loss prior to that date has not been clinically established. As such, there is no basis to change the date of accident from May 31, 2011 to an earlier date.

5 Page: 4 Decision No. 2275/15 DISPOSITION [18] The appeal is denied. DATED: October 29, 2015 SIGNED: S. Netten