WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 978/04

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 978/04 BEFORE: A. D. Levy : Vice-Chair J. J. Donaldson : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: Tuesday, February 14, 2006 at City of Kitchener Oral Post-hearing activity completed on October 30, 2006 DATE OF DECISION: June 4, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1446 DECISION(S) UNDER APPEAL: WSIB APPEALS OFFICER DECISION September 17, 1997 APPEARANCES: For the worker: For the employer: Interpreter: Joe Walsh, Office of Worker Adviser Did not participate 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. 978/04 REASONS (i) Introduction [1] The worker appeals the decision of Mr. B. J. Romano, Appeals Officer (AO), dated September 17, 1997, at the Workplace Safety and Insurance Board, issued without an oral hearing. That decision dealt with an alleged workplace disability (noise-induced hearing loss, or NIHL) which occurred during the period from 1963 to 1974, and concluded that entitlement for NIHL and tinnitus (noise or ringing in the ears) should be denied. [2] The appeal was heard by the Panel in the City of Kitchener on February 14, The worker appeared and was represented by Joe Walsh from the Office of the Worker Adviser. The employer was notified of the appeal but chose not to attend or participate. [3] The Panel had before it pre-filed documentation which was marked as exhibits at the hearing. At the hearing additional documents were filed as exhibits on behalf of the worker. In addition, we heard oral evidence from the worker and submissions from Mr. Walsh. [4] As a preliminary matter, Mr. Walsh pointed out that the audiogram (a graph which displays the results of a hearing test conducted on an audiometer, an instrument that measures hearing at different frequencies) submitted to the Board on behalf of the worker contains errors. At the worker s request the facility which conducted the testing (Dominion Hearing Aid Clinic) had produced a hand-made copy of the original test reports in its file (Exhibit 2, page 112 and Exhibit 5), because at the time of the request, Dominion s photocopier was not functioning. However, when the worker subsequently became aware of this, after a concern arose about the accuracy of the hand-made copy, a photocopy of the original was provided (Exhibit 2, pages 102 and 134, and Exhibit 6). The worker was concerned that the information contained in the handmade copy inaccurately reflected the actual test results. [5] The issue before us for determination is the worker s entitlement for noise-induced hearing loss (NIHL) and tinnitus. We must decide whether the worker s actual hearing loss reflects sufficient noise-induced hearing loss related to workplace exposure, in order to meet the Board s criteria laid down in policy. The controversies in this case focus on the level, pattern, cause and development of the worker s hearing loss, and the relationship (if any) of his tinnitus to workplace noise exposure in As is apparent from the discussion below, interpreting and applying Board policy to the unusual circumstances of this case involved considerable complexity. [6] Some of the basics of hearing loss and related terminology are explained in the following excerpt from Tribunal Decision No. 434/89A (1993) at pages 9-10: Sound is the pressure variation that the human ear can detect. Noise is loosely defined as unwanted sound. Noise interferes with the perception of unwanted sound. Sound is characterized by frequency and intensity. Frequency is the number of times one complete vibration cycle occurs in a given period of time. It is usually recorded in cycles per second or Hertz. The greater the frequency, the higher the pitch.

3 Page: 2 Decision No. 978/04 The decibel (db) is used to express the sound intensity (or loudness) associated with noise measurement. It is the measurement of the amplitude of a sound wave and it reflects the amount of pressure or energy existing in the sound wave. The greater the intensity, the louder the sound. At 140 db, the threshold of pain is reached. Decibels are not linear units but rather represent points in a sharply rising curve. The most common types of deafness are conductive deafness and neurosensory or sensorineural deafness. Conductive deafness occurs when sound waves are not transmitted effectively to the inner ear because of some interference. The simple example given by Dr. Alberti at the hearing was the effect of stuffing one s fingers in one s ears. Conductive deafness resulting from injury or disease of the middle ear may be grouped as follows: conductive deafness due to middle ear infection, conductive deafness due to trauma, and conductive deafness due to tumours or other diseases, for example, otosclerosis. Sensorineural hearing loss has various and complex causes. The cause of deafness is often in the cochlea, the organ of hearing in the skull bone. Sensorineural deafness can be congenital or familial, caused early in life. Certain drugs also damage the hair cells. Viruses including measles and mumps can also cause very severe, irreversible deafness. Trauma due to skull fracture or severe concussion can also result in permanent deafness. The most common cause of nerve deafness is advancing age, known as presbycusis. Finally, sensorineural deafness can be caused by habitual exposure to excessive noise which damages the hair cells in the cochlea. Damage to hearing is characterized by a decreased ability to hear sounds of low intensity. Excessive noise exposure can temporarily reduce hearing ability, causing a temporary threshold shift (TTS). This reduction in hearing ability is reversed after a period of quiet. A permanent threshold shift (PTS) is a permanent reduction in hearing ability and can be caused by either acute acoustic trauma or prolonged exposure to excessive noise. In general, the range of human hearing extends from 16 to 20,000 Hertz, with maximum acuity between 1,000 and 4,000 Hertz. The selection of frequencies used in the assessment of hearing loss is significant and a source of some disagreement. Studies dealing with speech discrimination favour including frequencies of 3,000 and 4,000 Hertz, in addition to 1,000 and 2,000 Hertz, and excluding 500 Hertz. Studies suggest that hearing acuity above 2K is critical for speech discrimination in noisy conditions. (ii) Background [7] The worker is 64 years of age and commenced working at the accident employer s paper mill in 1963, when he was 20 years of age. He worked there until January He was part of the labour pool and worked in various positions, mostly as a tow-motor (lift-truck) operator inside and outside the plant. Five tow-motors in total were operated at the facility. At that time, noise protection equipment was not made available to employees, and it was not mandatory for them to wear it. [8] During this period the plant operated with five large and extremely noisy paper machines as well as other loud equipment. No testing is available from that period, but a subsequent investigation conducted by the Board in located the results of tests undertaken by the company in May 1988 (Exhibit 2, page 65) although by this time there might have been fewer machines in operation and reduced production. Test scores reveal an overall average noise reading for the mill of 83.5 dba (A-weighted decibels). Particularly high scores were noted for the operating floor (90.7 to 93.2), basement (89.3 to 97.8), pump alley (93), pump area (95.7) and box shop (93). The noise level tended to be constant, as the paper machines (for example)

4 Page: 3 Decision No. 978/04 operated continuously. The intense noise level was confirmed by the investigation conducted by the Board. [9] The worker claimed that he did not have a hearing problem when he began working for the employer, and had suffered no accidents, which might account for the hearing loss. Since then he has worked primarily in residential and commercial construction, which involves occasional but brief use of electric saws and drills. In 1995 his employer (a municipality) supplied noise readings for construction equipment used by the worker. For the equipment that is used more often, scores range from 98.5 db (circular saw) to 99.4 (hammer drill). For many years he has used hearing protection while operating such equipment. [10] In November 1981, at the urging of his family, he sought out testing for his hearing. This led to his acquiring a hearing aid that year for his left ear, and subsequently for both ears. Copies of the test reports from the initial and subsequent testing were made available to the Board. A compensation claim for NIHL and tinnitus was filed by the worker in February 1995, and in his claim form the worker commented as follows (Exhibit 2, page 78): I worked in an extremely noisy area (machine room, beater room & broke hole), hearing protection was not provided or mandatory at that time. The machine room & broke hole were the noisiest areas & when I left shift my ears would ring for hours. When I started at the mill I did not have a hearing problem and there is no hearing loss in my family history. My sisters and brother have excellent hearing, as well as my mother & father who is deceased. [11] Many years later he was examined and tested by an ENT (ears, nose and throat) specialist, Dr. David Haldenby. His first report (January 1995) notes that the worker experiences a tinkling noise in his ears when his environment is quiet (Exhibit 2, page 99). The report states that audiometry testing reveals a quite severe sensorineural hearing loss bilaterally that is a little greater on the left side, and includes the opinion that this high frequency sensorineural hearing loss certainly could be related to the noise he has worked in. [12] With respect to the noise experienced in his ears (tinnitus), Dr. Haldenby s second report (October 1995) noted that the worker finds the tinnitus louder at night and it is disturbing his sleep (Exhibit 2, page 100). The worker also explained to him that it is so loud that he is amazed his wife does not hear it. [13] A reassessment was subsequently conducted by Dr. Haldenby at the request of the worker, and his third report (July 1996) includes, among other things, the following comments (Exhibit 2, page 95): Tinnitus is a constant problem in both ears. The tinnitus sounds like an electric motor which is high-pitched and is steady. It does not disturb his sleep as much as it has in the past. [He] works in noise as a carpenter and is very careful to wear ear protection at work, and also at home when using any noisy equipment. [He] brought along a letter from a Dr. Mastrilli at the Workers Compensation Board and Dr. Mastrilli feels that the pattern of hearing loss is not compatible with exposure to hazardous occupational noise.

5 Page: 4 Decision No. 978/04 I agree with Dr. Mastrilli that the pattern in the lower frequencies is more in keeping with a congenital sensorineural hearing loss, but certainly the drop in the higher tones could be partially related to noise exposure. However, whether enough of the high frequency sensorineural hearing drop can be attributed to noise exposure to warrant WCB benefits, is another problem that may develop over the next years. [14] In February 1995, at age 52, the worker filed a claim form with the Board (Exhibit 2, page 77). His claim for health care benefits was accepted initially by the Board in a decision letter dated February 26, 1996 (page 145). The claim for residual permanent partial impairment was denied on the basis that the degree of hearing loss was not enough to qualify for an award under Board policy. Average hearing loss was determined by the Board to be 30 db in the left ear and in the right (Exhibit 2, page 36). [15] Initial entitlement was subsequently reversed and denied, and payment of hearing aid expenses was refused. In a decision letter in May 1996 (Exhibit 2, page 138), the Claims Adjudicator acknowledged receipt of further medical reports from the worker and an opinion from a Board medical consultant (Dr. Mastrilli). The letter states, in part, as follows: The consultant indicates that in fact the documentation on file, the results of the audiograms show that the pattern of hearing loss is not characteristic of noise-induced hearing loss. Having taken into account the medical reports received and the opinion of the medical consultant, your claim is now denied in total for noise-induced hearing loss. [16] At the worker s request the permanent impairment denial (and subsequently the refusal of initial entitlement) was reviewed and confirmed in a number of decision letters: March 1996 (Exhibit 2, page 140), May 1996 (page 138) and March 1997 (page 136). Entitlement for tinnitus was also denied. In order to qualify for tinnitus, the Adjudicator indicated that there would have to be trauma, such as a work-place head injury, or a finding of permanent NIHL. In an Objection Form the worker states that his tinnitus is quite severe and continuous and affecting every aspect of his life (Exhibit 2, page 124). [17] Dr. Mastrilli made the following comment in a May 1996 memorandum in the file (Exhibit 2, page 28): I think that I should have made it clear from the beginning that even if the threshold hearing values were sufficient for permanent disability benefits, the pattern of hearing loss is not compatible with exposure to hazardous occupational noise. Noise induced hearing loss is typically maximal at or around 4 khz. [18] On appeal the AO decision rejected the worker s objection and refused entitlement for NIHL or tinnitus because the configuration in audiograms has shown mainly a congenital sensorineural hearing loss rather than one resulting from his employment exposure (Exhibit 2, page 11). The AO had obtained an opinion from a Board ENT consultant (Dr. D. Snell) whose August 1997 memorandum states, in part, as follows (page 18): Dr. Haldenby felt that [the worker] had a congenital sensorineural loss because of the configuration of the audiogram. The most recent audiogram done in July 1996, showed an average hearing loss of in both ears. However, I think this is an atypical audiogram and probably represents, largely, a congenital hearing loss. While there may

6 Page: 5 Decision No. 978/04 be some noise induced component, it is almost impossible to decide on the degree. I would, therefore, deny this claim. [19] We note that the excerpt from Dr. Haldenby s report, reproduced above, does not appear to state what Dr. Snell s memorandum claims that it said. As noted previously Dr. Haldenby had indicated that the hearing loss in the higher frequency tones could be partially related to noise exposure (Exhibit 2, page 95). (iii) Law and policy [20] Pursuant to section 126(1) of the Workplace Safety and Insurance Act, 1997 (WSIA), the Tribunal is required to apply Board policies when making decisions. Pursuant to section 126(2) the Board has identified certain policies as applicable to this appeal (Exhibit 3 commencing at page 25). We have considered these policies, where necessary, in arriving at our decision. In particular, we note Document No from the Board s Operational Policy Manual, entitled Occupational Noise-Induced Hearing Loss (July 1989) and No , entitled Tinnitus, Pre-January 2, 1990 (July 1994). [21] In view of the date of the alleged disablement, the pre-1985 version of the Workers Compensation Act (WCA), as amended, otherwise applies to the determination of this appeal. OPM Document No refers to section 122 of the WCA, which deals with industrial diseases. [22] The above-noted hearing loss policy ( ) of the Board directs that in the worst ear the average hearing loss for four speech frequency levels (500, 1000, 2000 and 3000 Hertz) must be at least 35 db, and 25 db or more for the better ear; alternatively, the loss in the better ear can be less than 25 db provided that the pattern of hearing loss is clearly consistent with occupational noise exposure (Exhibit 3, page 42); if there is a non-compensable hearing loss in addition to one that is work-related, the compensable degree of hearing loss will be estimated based on the test results (page 43). (iv) Evidence and submissions [23] The worker testified that he had no hearing problems before he went to work for the employer. After he left in 1974 he gradually began to realize, at the prompting of others, that his hearing capacity was limited. Finally in 1981, when he had the money to purchase a hearing aid, he went to Dominion to be tested. The accurate copy of the audiogram from that test, the closest in time to the period of exposure (1963 to 1974), was the subject of comment by the worker during his testimony, and submissions by Mr. Walsh. [24] Subsequent test reports were prepared over time, up until 1996, and are in the exhibit material. Other reports which appear to be from Dominion are included in Exhibit 2 at page 103 (undated), pages 111 and 113 (1991), and pages 104 and 118 (date appears to be 91 ). The worker s understanding is that there is always considerable variance in the results of audiogram testing, due to such factors as the individual tester, the machine being used, and the calibration of the machine. He indicated, for example, that there is a 20% fluctuation between the test results in two of the examinations by Dr. Haldenby.

7 Page: 6 Decision No. 978/04 [25] The file includes test reports for hearing loss from Dr. Haldenby in January and October 1995 (Exhibit 2, page 101) and July 1996 (page 97). The first two contain notations indicating average loss for the left ear in January and October of 60 db and 52 db respectively, and for the right ear 50 db and 47 db. The last of the three reports does not contain a notation of this type. [26] The photocopies of the 1981 audiogram in the record (Exhibit 2, pages 102 and 134) contain notations made by the worker. He explained that he asked a technician at Dominion (Steve Papilion) to calculate from the audiogram the hearing loss for the four frequencies addressed by the Board s hearing loss policy. The worker wrote these numbers on the copy and then calculated the average based on them. This appears to have been done on different occasions because at page 102 the averages noted by the worker on the report are 38 for the left ear and 25 for the right. By contrast, on page 134 the numbers are 48 for the left ear and 29 for the right. [27] Exhibit 6 was filed during the hearing by Mr. Walsh, and purports to be an accurate photocopy of the 1981 test report. It also contains the worker s notation of the readings for the four frequencies, but these differ from those mentioned above. The averages noted on this document are 36 for the left ear and 27 for the right. However, it appears that the left ear reading for 1000 Hz was not identified here or included in the average. [28] Dr. Mastrilli s memorandum in February 1996 states that the average loss for the four frequencies was 30 db in the left ear, and db in the right (Exhibit 2, page 128). The concern of the worker with these numbers is that the Board was relying on the hand-made and inaccurate copy of the 1981 test report (page 114). [29] During the hearing we expressed concern about the different sets of notations and the accuracy of the calculations. It appeared to us after examining the graph in the 1981 test report that the average loss for the four frequencies identified in the NIHL policy (500, 1000, 2000 and 3000 Hz) might be closer to approximately 34 db for the left ear (based on our estimate of 10, 34, 40 and 50 Hz for the four frequencies) and 28 for the right ear (based on an estimate of 10, 45, 31 and 24 Hz respectively). The worker and his representative did not disagree with this concern, other than to explain that the numbers jotted by the worker beside the audiogram were selected by an experienced tester at Dominion. The fact that each of the three different photocopies of the 1981 test report contained somewhat different numbers and averages was not explained. [30] In his memorandum, Dr. Mastrilli stated that the 1981 audiogram should be used as the basis for determining this claim (Exhibit 2, page 128). Mr. Walsh cited Tribunal Decision No. 1460/05, which dealt with multiple hearing tests over time, and the question as to which one should be relied upon. In that case, the first test was conducted three months before the worker retired in 1998, the second occurred in 1999 about nine months after retirement, and the other two took place in 2001 and The 1999 testing was considered by the Board to be more precise than the previous one, but it also produced a result which was insufficient to qualify for permanent impairment. The Board relied on this test, rather than the earlier one, and on that basis denied entitlement.

8 Page: 7 Decision No. 978/04 [31] On appeal, the decision by the Tribunal made reference to a WSIAT medical discussion paper on hearing loss, which indicates that once the exposure to noise is discontinued, there is no substantial further worsening of hearing as a result of noise unless other causes occur (paragraph 19). This paper, written in 2003 by Dr. John Rutka and entitled Hearing Loss and Tinnitus, was also included in the appeal material in the case before us (Exhibit 4, page 10). [32] Currently, Dr. Rutka (an otolaryngologist) is a sub-specialist in neurotology (disorders of dizziness, imbalance and hearing loss) at the University Health Network (Toronto) and an Associate Professor in the Department of Otolaryngology at the University of Toronto. [33] The Vice-Chair in Decision No. 1460/05 held, among other things, as follows: The 2001 and 2004 tests were too late in time to be considered the most reliable evidence of the worker s noise-related hearing loss at the time he left exposure, given the earlier test results (page 4, paragraph 27). The results of the earliest audiogram (1998) should have been accepted. The reason for this conclusion is contained in paragraph 33 of the decision: In this case, the 1998 audiogram is the audiogram carried out closest in time to the worker s leaving work. There is no information on file suggesting it is insufficiently reliable to form a basis for entitlement. Despite the later test results, I find that entitlement is to be based on the 1998 audiogram. [34] In the worker s case, the Board also took the view that the test results did not reveal a pattern of hearing loss which would be characteristic of NIHL, because it is typically maximal around 4000 Hz. In this regard, Dr. Mastrilli referred to the seemingly anomalous reading at 4 khz (left) (Exhibit 2, page 128). As noted previously, Dr. Haldenby s was of the opinion that the pattern in the lower frequencies is more in keeping with a congenital sensorineural hearing loss, but certainly the drop in the higher tones could be partially related to noise exposure. [35] The Board s hearing loss policy is prescriptive of the degree of NIHL required in order to qualify for entitlement, but notably it does not contain any reference to or requirement about hearing loss being accentuated at about 4000 Hz. On the other hand, the medical discussion paper on hearing loss states that generally NIHL usually demonstrates a 4000 Hz dip (Exhibit 4, page 14). The paper also notes (at pages 15-16) that with NIHL: the amount of hearing loss will vary from person to person; there is less effect on lower frequencies; the range of 3 to 6 khz is first affected; the greatest change occurs in the early years of exposure (a decelerating process ); after exposure is discontinued the hearing loss should not deteriorate further, unless there is some other cause; continuous noise is more damaging than interrupted exposure ( which permits the ear to have a rest period )..

9 Page: 8 Decision No. 978/04 [36] Hearing loss due to advancing age (presbycusis) occasionally begins around age 40, but at years hearing loss tends to increase more quickly (Exhibit 4, page 16). With respect to differences in hearing loss when comparing the two ears (asymmetry), the paper states as follows (page 14): It [NIHL] should also be symmetric bilaterally. Whether one ear is more resilient to noise in the same individual (the so-called tough vs. tender ear argument) while of academic curiosity is not based on any known pathologic basis to date. Nevertheless some individuals exposed to noise not infrequently demonstrate some asymmetry to their hearing loss. This is however usually related to the fact that one ear receives a greater exposure to the noise than another. [37] The paper includes illustrations of an audiogram for NIHL (Exhibit 4, page 27) which is dissimilar to the graph in the 1981 audiogram. The paper also notes that the graph for each ear should be relatively symmetric, which is not the situation here. The illustrations for agerelated hearing loss (page 28) are also symmetrical but appear very different from the worker s audiogram for either ear. [38] The 1981 audiogram indicates maximal loss in the left ear (almost 60 db) at 4000 Hz, although the greatest loss for the right ear was at 1000 Hz. The worker raised this issue in the Objection Form he filed in response to the Adjudicator s decision (Exhibit 2, pages 122, 124 and 129), although the AO decision did not subsequently address it: My hearing loss is maximal at 4 khz in the audiogram 13 Nov.81. This loss at 4 khz is repeated on every audiogram after this date. How can it be dismissed as anomalous? What audiogram could Dr. Mastrilli be referring to when he states the pattern of hearing loss is not compatible with exposure to noise? [39] In his submissions Mr. Walsh conceded that a component of the worker s hearing loss may be congenital, however he relies on Dr. Haldenby s opinion that some of the high frequency loss could be related to the noise he has worked in (Exhibit 2, page 115). At the least, he claimed the worker should be entitled to the benefit of the doubt, as provided by the legislation and Board policy. [40] The worker s claim for entitlement with respect to tinnitus must be measured against Board policy in OPM Document No Its requirements included acceptance of an NIHL claim, at least two years of continuous and severe tinnitus, and confirmation by a specialist with facilities for testing tinnitus (Exhibit 3, page 46). Entitlement to compensation for tinnitus may be retroactive to the date of change in Board policy (June 3, 1988) or the date of the disability, whichever is later in time. Mr. Walsh submitted that the date of the injury, relied upon by the Board, was November [41] The medical discussion paper of Dr. Rutka also deals with tinnitus (Exhibit 4, pages 31-32) and notes that it is difficult to quantify objectively, or to determine how it affects a person s well-being. [42] The worker testified that his symptoms of tinnitus have gradually become worse over the years, and creates a constant noise when he is in a quiet environment. His ears would ring for

10 Page: 9 Decision No. 978/04 hours after each shift when working for the accident employer. After he left that employment, the noise in his ears continued and worsened. It varies at times but interferes with his sleep, and he has found it psychologically difficult to live with. In a quiet room, without his hearing aids, it sounds like a high pitched, screaming, electric motor, just like the loud noise from the paper machines at the mill. When his hearing aids are operating, other sound is picked up and this helps to drown out the tinnitus. [43] He has made some effort to try to get rid of it but he has had no success in this regard. For example, he sought treatment for it in the past, including the use of an herbal remedy (Ginkgo biloba) for two years (as recommended by a doctor). No medical documentation has been filed with respect to this treatment. [44] Recognizing that 34 and 28 db are very close to meeting the minimum level of hearing loss required by the NIHL policy (35 and 25 db for the bad and better ears respectively), it became apparent during the hearing that the opinion of an independent medical assessor might be useful in interpreting the test reports, their reliability and accuracy, and resolving any confusion which might exist in this regard. The worker and Mr. Walsh agreed. Staff in the Tribunal s Medical Liaison Office (MLO) selected Dr. John Rutka (the same otolaryngologist who authored the discussion paper discussed above) as an appropriate assessor and provided him with documentation from the file and a list of questions which we prepared (Exhibit 7, page 4: Post-Hearing Addendum #1). [45] After his review of the material, Dr. Rutka submitted a report in July 2006 to the MLO (Exhibit 7, page 25). A copy was then forwarded to Mr. Walsh for review, and his written submissions were received by Tribunal staff at the end of October (Exhibit 8, page 11: Post-Hearing Addendum #2). The following excerpt is from the summary section of Dr. Rutka s assessment report (Exhibit 7, page 31): There is reasonable evidence to support that [the worker] had a bilateral sensorineural hearing loss that was present in It has remained essentially stable since While it is possible some of this loss could be occupationally related to his exposure the audiometric configuration suggests that other cause(s) were present additionally. From the documentation reviewed there is mention of his having a congenital hearing loss for example. Unfortunately I cannot begin to apportion the amount of hearing loss that would be solely occupational from the information available. If pressed however I would think it unlikely that the majority of hearing loss from Hz would be occupationally related and is due to some other cause(s). [His] tinnitus is stated to be bothersome additionally. In general terms tinnitus is associated with a sensorineural hearing loss and if there had been any loss due to occupational noise exposure it could have played a role in its genesis. A stronger claim for occupational noise exposure being causative solely for his tinnitus could have been made if the onset of his tinnitus was more closely associated temporally with the occupational exposure from [46] In addition to the above, the report includes (among other things) the following details, comments and opinions:

11 Page: 10 Decision No. 978/04 It was certain that the worker did not appear to have a progressive degeneration of inner ear hearing that is age related or due to another recognizable pathology (page 35, item 8). He noted that hearing ability remained relatively stable between 1989 and Most of the audiograms in the file would be sub-optimal for WSIB purposes of quantification as they lack corroborative bone conduction thresholds and/or testing for a threshold value at 3000 Hz (page 28). With respect to the accuracy of the audiograms, he had no information about the standards of the testing facility, machine calibration, or the tester s skills. However, he indicated that in general terms it was more likely for hearing loss to be overestimated rather than underestimated in the audiometer testing in 1981 (page 33, item 2). His ability to assess accuracy would have been enhanced if some standard tests had been performed at the time (i.e. bone conduction thresholds, impedance audiometry including tympanometry, and speech recognition thresholds). Dr. Rutka was unable to provide a definitive answer as to the etiology of the 1981 hearing loss because there was no documentation of the worker s hearing capacity at the start or conclusion of employment at the paper mill (page 28). On the other hand, he indicated that he could accept with reasonable medical certainty that some of this loss could be occupationally related, although it was not possible to apportion between that and the non-work component (page 30). He could say with certainty that the configuration to [the worker s] hearing loss (a moderate broadened sensorineural hearing loss with predominant involvement of the middle frequencies ( Hz) is atypical for noise induced hearing loss on its own (pages 28-29). This is due to a greater than expected loss of hearing in the lower frequencies (page 30). It is possible that the hearing loss preceded the employment at the paper mill and could have been congenital in part (page 35, item 8). In his opinion, the 1981 audiogram could not be used to calculate the average loss in each ear for the four frequencies identified in the NIHL policy (500, 1000, 2000 and 3000 Hz). This is due to the failure to measure the presence of any conductive hearing loss (which is not due to loud noise exposure), and the failure to test hearing at 3000 Hz (page 34, items 4, 5). Tinnitus is usually associated with a sensorineural hearing loss (page 36, item 13). However, the 12-year gap between the end of employment at the mill and the onset of tinnitus in 1986 limits the strength of the claim that it was related to the sensorineural hearing loss (page 30). [47] In his written response to Dr. Rutka s assessment report, Mr. Walsh submitted that it is reasonable to conclude that the worker s noise exposure at the paper mill was a significant contributing factor in the development of bilateral sensorineural hearing loss and tinnitus (Exhibit 8, page 11). He conferred with the worker and noted that neither he nor any member of his family is aware of the presence of congenital hearing problems. Although he did some motor bike racing, the bikes had noise mufflers which were tested before every race.

12 Page: 11 Decision No. 978/04 (v) Analysis and findings [48] We have reviewed and considered the documentary evidence (totalling almost 400 pages), the testimony given at the hearing and submissions made by the worker s representative, and relevant provisions of the applicable legislation and policies of the Board. [49] In view of the denial of entitlement on the basis of level and pattern of hearing loss, the focus in this appeal is not on whether the worker had sufficient exposure to loud ( hazardous ) noise at the work place in order to comply with the exposure criteria in the Board s hearing loss policy (OPM Document No ). Rather, the issue to be determined by us is whether the amount of hearing loss caused by workplace exposure is sufficient for any entitlement (i.e., benefits for health care, permanent disability or tinnitus). For the reasons discussed below, we have concluded that entitlement should be denied and the appeal dismissed. Hearing Loss [50] The NIHL policy requires that average hearing loss (based on hearing loss at the 500, 1000, 2000 and 3000 Hz frequency levels) for the worker s worse (left) ear to be at least 35 db, and 25 db for the better (right) ear. Or if hearing loss for the better ear is less than 25 db, then there must be a finding that the pattern of hearing loss is clearly consistent with occupational noise exposure (Exhibit 3, page 42). In addition, where there is a non-compensable component of the hearing loss, the compensable degree of hearing loss will be estimated based on the test results (page 43). [51] On close reading we have interpreted this version of the Board s NIHL policy as follows: In the Policy section the Exposure Criteria include a requirement of average hearing loss for the four speech frequency levels of at least 25 db in each ear (Exhibit 3, page 41). The Guidelines section (page 42) indicates that meeting this requirement is necessary for entitlement. However, in order to be entitled to health care and/or permanent disability benefits, the Guidelines section also requires a higher threshold, namely a minimum hearing loss of 35/25 db (worse/better ear), or less than 25 db in the better ear when the pattern of hearing loss is clearly consistent with occupational noise exposure (page 42). This would suggest that a pattern of hearing loss would be acceptable in a 35/25 db scenario, even though the pattern is inconsistent with occupational noise exposure. This result would be surprising in view of the fact that the policy generally requires NIHL to result from workplace exposure to hazardous noise. In addition, this is at odds with the comment from Dr. Mastrilli (Board medical adviser), noted above, that the pattern of hearing loss in this case was not compatible with occupational exposure even if the threshold hearing values were sufficient for permanent disability benefits (Exhibit 2, page 28). It appears then that the requirement of a hearing loss of 25/25 db is part of the Exposure Criteria in this policy, but 35/25 db is nevertheless necessary under the Guidelines for the award of any benefits.

13 Page: 12 Decision No. 978/04 An exception to exposure criteria has been included in the NIHL policy. It is found in the Policy section and appears to allow for initial entitlement in individual cases even if the exposure criteria, such as 25/25 db hearing loss, have not been met (Exhibit 3, page 41): Since individual susceptibility to noise varies, claims which do not meet the exposure criteria set out above are individually judged on their own merit, having regard to the nature of the occupation, the extent of exposure, and any other factors peculiar to the individual case. Other Tribunal decisions have determined that this exception pertains only to exposure criteria, and not to the hearing loss of 35/25 db required for a permanent disability award. See for example Decision No. 624/06. [52] Although our decision does not turn on this point, it appears that the Guidelines section of the NIHL policy establishes the same criteria for both types of benefits. The Adjudicator interpreted the policy to mean that 25/25 db was required for health care benefits only (e.g. provision of a hearing aid), but 35/25 db was needed for health care benefits plus a permanent disability award (Exhibit 2, page 140). This interpretation is not supported by the wording of the policy in the Guidelines section, which indicates that the threshold is 35/25 db for health care and/or permanent disability benefits (Exhibit 3, page 42, emphasis added). [53] After reviewing the key documentation and testing data in this file, it is our understanding that Dr. Rutka was unable to state whether the 1981 test results met the criteria for entitlement in Board policy. Missing was test data which might identify conductive loss, and changes occurring between the start and finish of employment at the paper mill. According to his report, a congenital (i.e. non-compensable) component of the worker s hearing loss appears to be present, as indicated elsewhere. However the report states that with the limited information available for the 1981 testing, he could not calculate the average work-related hearing loss in each ear for the four frequencies. Nor could he even begin to apportion the loss attributable to workplace exposure rather than other causes. If pressed to do this, however, he indicated that most of the hearing loss in the Hz range would seem to be due to a cause other than occupational exposure. [54] Dr. Rutka s assessment of the 1981 test results would appear to indicate that they cannot be relied upon to demonstrate compliance with Board policy, considering his concerns about the existence and extent of non-compensable hearing loss, no measurement taken for the 3000 Hz frequency level, and inability to calculate the four-frequency average hearing loss. In light of this, we considered Mr. Walsh s submission that Dr. Rutka s report supports the worker s position that noise exposure at the paper mill was a significant contributing factor in the development of his bilateral sensorineural hearing loss, and his tinnitus (Exhibit 8, page 11). [55] Although the significant contributing factor is the test generally used by the Tribunal with respect to the issue of causality, it must be recognized that the NIHL policy specifically seeks to identify any non-compensable hearing loss, and estimate/quantify only the compensable degree of hearing loss in calculating the permanent disability award. The result is that the policy requires the non-compensable portion of hearing loss to be factored out of a permanent disability award.

14 Page: 13 Decision No. 978/04 [56] In Tribunal Decision No. 774/93, the numerical level of hearing loss recorded from testing was adjusted downward to exclude non-compensable factors. The remaining compensable portion of hearing loss was insufficient to meet the numerical criteria in the policy and the worker s appeal was therefore dismissed. See also Decision No. 917/96. We consider this approach to be appropriate, although we recognize that in at least one other decision of the Tribunal (Decision No. 195/90) the issue of the non-compensable (pre-existing) component of hearing loss was referred back to the Board to determine and apportion. [57] We now turn to the question of whether the results of any of the hearing tests after 1981 should be considered in making a determination as to entitlement. The Adjudicator s explanation for not considering the subsequent tests is reproduced below (Exhibit 2, page 141): Please note that as you were no longer exposed to hazardous noise in the workplace after 1974, we must use the earliest audiogram possible to determine your entitlement to compensation benefits. The earliest audiogram was dated November 13, 1981 and this is the audiogram that is used in the calculations. The audiograms submitted after that date are not applicable as they are recording changes in hearing while not exposed to hazardous noise in the workplace. [58] The following is a compilation of the post-1981 test results: Figures are listed in a chart from testing conducted by a subsequent employer of the worker in September 1989 (Exhibit 2, page 107). They indicate a four-frequency average, according to our calculation, of 38 db for the left ear and 40 db for the right. Follow-up testing in March 1990 by that employer indicated a four-frequency average, according to our calculation, of 43 db for the left ear and 40 db for the right (page 108). A form report from Dominion Hearing Aid Service in July 1991 contains an audiogram which does not contain a measurement at the 3000 Hz frequency (page 111). Our examination of it indicates a four-frequency average, according to our calculation, of approximately 50 db for the left ear (assuming a 55 db loss at 3000 Hz) and 44 db for the right (assuming a 40 db loss at 3000 Hz). A form report (which also appears to be from Dominion Hearing Aid Service) in August of that year (1991) contains an audiogram which, once again, does not contain a measurement at the 3000 Hz frequency (page 118). Our examination of it indicates a four-frequency average, according to our calculation, of approximately 51 db for the left ear (assuming a 60 db loss at 3000 Hz) and 45 db for the right (assuming a 45 db loss at 3000 Hz). Dr. Haldenby s first report (January 1995) indicated quite severe sensorineural hearing loss bilaterally that is a little greater on the left side (Exhibit 2, page 99). An examination of the audiogram prepared at that time indicates a four-frequency average, according to our calculation, of approximately 56 db for the left ear, and 51 db for the right (page 101). Located under the graph in a different hand-writing, is a notation of the average loss being 60 and 50 db respectively. Dr. Haldenby s second report (October 1995) indicates significant bilateral hearing loss and tinnitus (page 100). An examination of the audiogram prepared at that time indicates a four-frequency average, according to our calculation, of approximately 50 db for the left

15 Page: 14 Decision No. 978/04 ear and 49 db for the right (page 101). Located under the graph in a different hand-writing, is a notation of the average loss being 52 and 47 db respectively. Dr. Haldenby s third report (July 1996) indicates that hearing is still quite decreased bilaterally, with tinnitus a constant problem in both ears (page 95). An examination of the audiogram prepared at that time indicates a four-frequency average, according to our calculation, of approximately 46 db for each ear (page 97). [59] The estimates noted above for the post-1981 tests (with the exception of the most recent test in July 1996) are relatively similar to those cited in the worker s letter to the Board in April 1996 (Exhibit 2, page 98). The range of fluctuation, for the averages noted above, are db for the left ear, and db for the right. Dr. Rutka s report indicated that in general terms the worker s hearing remained relatively stable during the period (Exhibit 7, page 35, item 8). [60] Keeping in mind that neither version of the 1981 audiogram includes a measurement at 3000 Hz, we calculated the approximate four-frequency averages for test scores recorded at that time by examining the two versions of this audiogram. The purpose of this exercise was to assist us in comparing the different scores put forward by the worker and the Board. Our calculations are as follows: The photocopied version of the 1981 audiogram (Exhibit 6) indicates a four-frequency average, according to our calculation, of approximately 36 db for the left ear (assuming a 50 db loss at 3000 Hz) and 26 db for the right (assuming a 20 db loss at 3000 Hz). We note that these estimates are quite different from the numbers which the worker noted on the copy of the audiogram contained in the record (Exhibit 2, page 134), namely 48 db for the left ear and 29 db for the right. He maintained that these numbers were determined after consulting with the technician at Dominion, but could not otherwise explain the discrepancy with the above-noted calculations. The hand-copied version of the 1981 audiogram made by Dominion staff (Exhibit 5 and Exhibit 2, pages 112 and 114), which the worker claims is not totally accurate, indicates a four-frequency average, according to our calculation, of approximately 35 db for the left ear (assuming a 50 db loss at 3000 Hz) and 26 db for the right (assuming a 20 db loss at 3000 Hz). By contrast, the average hearing loss determined by the Board was 30 db in the left ear and 26 db in the right (Exhibit 2, page 145). These figures were put forward in a 1996 memorandum from Dr. Mastrilli (page 36). [61] Regardless of which calculations are considered, the increase in hearing loss between 1981 and the subsequent test results appears to be significant, and loss in the right ear continues to be somewhat less than with the left. As noted above, the MLO paper indicates that hearing loss should not deteriorate after exposure is discontinued, unless there is some other cause to explain it. In response to questions from the Panel, the worker indicated that some of the hearing decline since 1981 could be due to aging. However, he felt that it would not be as bad if he had not been exposed to the constant and high level of noise at the paper mill. Nor did he believe that other noise-related activities since leaving the paper mill (construction work, hunting and motor bike riding) had contributed to his hearing loss.

16 Page: 15 Decision No. 978/04 [62] In our view, the subsequent (post-1981) test results raise two concerns. The first is that they continue to demonstrate to physicians, according to opinions in the file, a pattern of hearing loss that is not characteristic (at least in part) of NIHL. In other words, the pattern indicates a lack of causal connection between workplace exposure and hearing loss, which is a barrier to entitlement. [63] The second concern relates to the issue of delay. The worker was 30 years of age when he left his employment in the paper mill (January 1974); 38 when he was first tested for hearing loss (November 1981); and 52 when he applied to the Board for benefits. No reason was given by him to explain why he did not apply for compensation when he was working at the paper mill, or when he left. A memorandum from the Board s investigator indicates that the compensation claim was being filed at this point because he now desires to purchase a hearing aid for both ears and is therefore finally submitting his claim (Exhibit 2, page 48). Elsewhere, the notes of the Board s investigator from an interview with the worker in September 1995 indicated the worker s belief that his hearing loss was caused by working in the paper mill as he was having difficulty with his hearing following employment there (Exhibit 2, page 87). Elsewhere the report notes that the hearing problem was severe when he left this job. [64] He indicated that he waited to obtain testing until he had enough money to buy a hearing aid. However, he also indicated that his hearing had deteriorated during this period. He told the investigator that his hearing worsened and worsened during this period (Exhibit 2, page 87). One would expect that this lack of money would have been an additional reason to apply for compensation benefits at that time. Even after the test in 1981 demonstrated hearing loss, he waited at least another 13 years before applying for compensation. Once again, this additional delay was not explained by the worker. The subsequent test results revealed that his hearing had deteriorated further during the passing years. [65] The delay of 21 years (between leaving the paper mill and applying to the Board) suggests to us a few possibilities: the worker might not have been experiencing any hearing loss in 1974 when he left that employment; his hearing loss was minimal at that point; or he did not previously attribute his hearing loss to noise exposure at the mill. He applied for compensation at age 52, a stage at which the ageing process can affect hearing acuity, and after decades of noise exposure from various jobs and recreational activities. [66] In any event, the decision to delay his compensation application denied the Board (and the accident employer) the opportunity to investigate in a timely manner, and undertake prompt and comprehensive medical testing and inquiry. It appears that the testing in 1981 was not undertaken in contemplation of a compensation claim, and was considered inadequate for that purpose by Dr. Rutka and others. This is particularly important given the fact that the worker s work elsewhere and recreational activities (involving such things as power tools, motorbikes and hunting rifles) created additional exposure to periodic high noise levels. Unfortunately, the delay in seeking comprehensive testing by Dr. Haldenby and filing a compensation claim has put the worker s case at a considerable disadvantage. [67] Whatever the reason for the deterioration in hearing after 1981, we agree with Dr. Mastrilli s assertion that the 1981 test results should be the primary tool used to measure the extent of the worker s earlier hearing loss (Exhibit 2, page 36). This is consistent with the