WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 742/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 742/14 BEFORE: S. Ryan: Vice-Chair HEARING: April 16, 2014 at Toronto Oral DATE OF DECISION: April 23, 2014 NEUTRAL CITATION: 2014 ONWSIAT 886 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) D. Hart dated May 25, 2012 APPEARANCES: For the worker: For the employer: Interpreter: M. Cianfarani, Paralegal Human Resources (HR) manager 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. 742/14 REASONS (i) Introduction to the appeal proceedings [1] On May 29, 2007, the worker completed a Worker s Report Occupational Noise Induced Hearing Loss (NIHL) and attached some audiometry. He related his hearing loss to noise exposures at work. [2] In correspondence dated November 20, 2007, a Board Claims Adjudicator (CA) advised that the medical on file [was] inconsistent and that a decision respecting his entitlement to NIHL could not be reached. The Board made arrangements for the worker to undergo cortical testing which was conducted on February 19, 2008, at the Toronto General Hospital. [3] In a decision dated June 2, 2008, a Board NIHL Adjudicator determined that the worker was exposed to excessive noise levels during his employment and that he was entitled to a Non-Economic Loss (NEL) assessment. The worker was subsequently granted a 6% NEL award for his hearing loss and tinnitus with an accident date of February 19, [4] The worker objected, claiming that his hearing loss began in An audiogram in that year showed bilateral sensorineural hearing loss. [5] In a decision dated October 25, 2010, the NIHL Adjudicator determined that the pattern of hearing loss in audiometry conducted before 2008, was not consistent with occupational noise exposure. The accident date of February 19, 2008, was confirmed. [6] The worker appealed. In so doing, he also claimed that his recurrent ear infections and surgery for a perforated right eardrum resulted from his employment and the job requirement to wear dirty earplugs. [7] In a decision of dated May 25, 2012, the ARO: 1) denied the worker a change in the accident date from February 19, 2008 to June 1, 1987; and 2) denied him entitlement for recurrent ear infections and surgery to his right ear on September 5, [8] The ARO decision is now the subject of the worker s appeal to the Tribunal. (ii) The issues [9] I discussed the issue agenda with the representatives. Pursuant to that discussion, I accept that in this appeal the Tribunal must decide: 1) whether the accident date for the worker s NIHL should be changed from February 19, 2008 to June 1, 1987; and 2) whether the worker has entitlement for recurrent ear infections and surgery to his right ear on September 5, (iii) Background and testimony of the worker [10] The worker was born in [11] In 1978, he was hired by the accident employer, a manufacturer of automotive parts, as a welder. He performed welding duties on a production line for most of his career. In the last few years of his employment prior to his retirement on May 1, 2008, welding was automated. The worker confirmed information in the Case Record that indicates he was exposed to hazardous levels of noise produced by machinery and presses over the course of his career. His exposure to hazardous levels of noise is not contested in this case.

3 Page: 2 Decision No. 742/14 [12] The worker testified that the environment in the plant was dirty and smoky due to welding fumes. He stated that the floor was often covered with oil and that dust was placed over the oil to soak it up. [13] The worker testified that he wore various types of hearing protection over the years. Although he could not recall the specific time frames for each type of hearing protection, he recalled that he wore disposable foam ear plugs for the first several years of his employment. These were issued by a company nurse and workers were permitted only one pair per day. He testified that there was no opportunity to wash or clean these earplugs during the course of a shift even if they were dropped on the floor. He stated that if he dropped an earplug onto the floor, he simply picked it up and placed it back into his ear. [14] After several years, re-usable rubber earplugs were used. The worker recalled that these were attached to a string. Although these earplugs could be washed and re-used, he often did not have time to wash them due to the demands of the production line. [15] For a brief period of time, workers were provided with custom earplugs specifically molded for each worker. The worker testified, however, that these did not work well and were abandoned after a short period. The worker testified that he then resumed wearing the disposable foam earplugs. [16] The worker recalled that starting in the late 1980s, following an initiative by his union, access to disposable foam earplugs was not restricted to one pair per day. He stated that workers had unlimited access to the earplugs. However, he explained, they were kept in a box some distance away from his work area and it was not always practical to leave the production line to obtain a new pair of earplugs. [17] The worker testified that during the last few years of his employment, he wore ear muffs or external ear protection rather than earplugs. [18] The worker confirmed that all workers in the plant had their hearing assessed periodically by a third party recruited by the accident employer. [19] In a letter dated June 26, 1984, the accident employer advised the worker that a recent test conducted on the employer s premises indicated that he had some degree of hearing loss. It was recommended that he undergo further investigations with his family doctor. [20] On June 1, 1987, the worker underwent a hearing test at a medical clinic. In this test, the worker was found to have db and db loss in the right and left ear respectively. Subsequent hearing tests (discussed below) also found bilateral hearing loss. [21] Information in the Case Record indicates that the worker developed recurrent ear infections. At the hearing, the worker could not recall when these began. Clinical notes from his family doctor, Dr. K. D. Mohan, in the Case Record indicate that the worker experienced problems with excessive wax and a fungal element in 2003, 2006, 2007 and [22] On May 29, 2000, worker was seen by Dr. O. D. Smith, otolaryngologist. He advised that there had been no change for the last 13 years in his sensorineural hearing loss. However, the worker was bothered a whistling sound in his right ear which was caused by a small central dry perforation of the right eardrum. [23] On September 5, 2000, Dr. Smith performed a tympanoplasty on the worker s right ear.

4 Page: 3 Decision No. 742/14 [24] In a post-surgical follow-up report dated September 27, 2000, Dr. Smith advised that there was no evidence of an infection in the worker s right ear and that his anterior perforation had healed. [25] In a report dated December 19, 2000, Dr. Smith advised: he has bilateral low frequency sensory neuro hearing loss from mild to moderate degree in nature. I have informed him that no further improvement can possibly be expected from surgery. He is, however, happy with the improvement. I cleaned his ears of wax, which has built up. He tends to have this problem he tells me and I suggest that he return to see me in 3 months for further ear cleaning. [26] In a report dated April 1, 2001, Dr. Smith advised that he cleaned the worker s ears again. He advised that the worker inquired about auricular hygiene and was advised to use baby oil to clean his ears twice per week. [27] On March 21, 2003, the worker was seen by Dr. Smith again. Dr. Smith advised in a report of that date that the worker continued to experience infections on the left side. The worker s ears were cleaned again. [28] On August 8, 2004, the worker attended the Emergency Department of a local hospital where he was provisionally diagnosed with serious otitis media, peripheral vertigo and vasovagal syncope (fainting). At that time, Dr. Mohan completed a Short-Term Disability Physician s Statement for private insurance benefits. [29] In a report dated June 23, 2006, P. Millett, audiologist, commented on a hearing test conducted on that date: [The worker] reports occupational noise exposure and uses hearing protection routinely. Results indicated a mild, primarily low frequency sensorineural hearing loss for both ears, slightly poorer for the left ear. [The worker] has had chronic ear infections in the past. [30] On February 19, 2008, the worker underwent audiometry at the Toronto General Hospital. The audiometry indicated a hearing loss of 30 db and db in his right and left ears respectively. The results were reviewed by a Board audiologist on March 14, 2008, who opined: Pattern is not typical of a NIHL, but it could be compatible with one. [31] As noted above, in the decision dated June 2, 2008, a Board NIHL Adjudicator determined that the worker was exposed to excessive noise levels during his employment. She noted: A review of the cortical testing done at the Toronto General Hospital was conducted. Based on the review of the valid audiogram of February 19, 2008, you have a level of hearing loss of decibels in the right ear and decibels in the left ear. [32] In a report addressed to whom it may concern dated August 27, 2009, Dr. Mohan advised that the worker continued to be treated for longstanding noise-related bilateral sensorineural hearing loss and tinnitus which he stated was first detected on audiology in [33] In a report dated December 21, 2009, Dr. Smith advised that the results of an audiogram conducted on that date were unchanged since the previous audiogram. He advised that the worker suffered from tinnitus secondary to noise related hearing loss.

5 Page: 4 Decision No. 742/14 [34] On October 19, 2010, the Board audiologist reviewed the audiometry on file. These were as follows: June 1, db loss in right ear, db loss in left ear; November 11, db loss in right ear, 35 db loss in left ear May 15, db loss in right ear; db loss in left ear October 19, db loss in right ear; 30 db loss in left ear [35] The Board audiologist advised: A NIHL is a sensorineural hearing loss. The pattern of loss for a NIHL generally affects a person s hearing sensitivity in the higher frequencies. The symptoms of NIHL are usually presented equally in both ears. NIHL usually occurs initially at high frequencies (3K, 4K or 6 K hz) and then spreads to the low frequencies (0.5K, 1K, or 2K). A NIHL does not affect the lower frequencies prior to the higher frequencies. This pattern noted in the 1987 audiometric testing has a cookie bite configuration. This pattern is consistent with the history of chronic middle ear disease unfortunately experienced by [the worker]. It should be noted that the testing from 1987 also has the higher frequencies within the normal limits. In a NIHL, these frequencies are the ones affected, not the mid or low frequency range as noted in the testing. The pattern is not compatible with occupational noise damage. Audiometric testing from 1994 is flat and also not consistent with occupational noise damage. Later testing noted in the cortical from 2008 indicates a loss of hearing in the higher frequencies in addition to the mid- and lower ones. While the pattern of loss is reflective of the chronic middle ear disease and not consistent with a NIHL, it is possible that the loss at this stage has some association with occupational noise exposure. The history of otitis media (i.e. chronic middle ear disease), vertigo and vasovagal syncope are unrelated to occupational noise exposure. [36] In a report addressed to whom it may concern dated November 25, 2010, Dr. Smith advised: I have seen this patient for ear issues. He has worked in a dirty dusty environment for many years and required the use of ear plugs for sound protection. He has had to reuse ear plugs that were contaminated and dirty and believes that this was the cause of his ear infections. I began to see him following these infections and therefore there isn t any documentation I am aware of. However this clinic[al] picture isn t uncommon and has been know[n] to occur. I would request you review his application with this in mind. [37] In a report addressed to the Board dated August 29, 2011, Dr. Mohan advised that he had treated the worker since He noted that the worker was treated for ongoing complaints of hearing loss, tinnitus and associated symptoms of headaches, insomnia, dizziness, vertigo and stress. The family doctor advised that the worker had worked in a very noisy, dusty work environment from 1978 to 2008 and that audiometry conducted in 1987 questioned hearing loss. He advised that the worker s hearing loss was subsequently confirmed as mild bilateral symmetrical sensorineural hearing loss compatible with longstanding noise exposure. Dr. Mohan understood that the worker was required to reuse earplugs that were contaminated and dirty which led to recurrent ear infections requiring several courses of antibiotics each year between 1994 and 2000, when he was referred to Dr. Smith. The family doctor noted that the worker underwent surgery in 2000, but suffered ear infections again almost every year between

6 Page: 5 Decision No. 742/ and November He opined that the worker s history was compatible with the use of contaminated, dirty ear plugs in his dusty work environment. (iv) Submissions [38] On behalf of the worker, Mr. Cianfarani reviewed the medical evidence in the Case Record and testimony of the worker. He noted that the audiogram dated June 1, 1987, was conducted at the medical clinic where Dr. Mohan carried out his practice. He submitted that the audiogram was conducted at a reputable facility and ought to be used for the date of accident in this case. He submitted that each of the subsequent audiograms taken over the ensuing years also indicated significant bilateral hearing loss within the thresholds of entitlement under Board policy. The worker s representative noted the Board audiologist s opinion that although the pattern of hearing loss was not typical of noise-induced hearing loss, it could be. [39] With respect to the worker s recurrent ear infections, Mr. Cianfarani emphasized the worker s testimony about having to use dirty ear plugs in the course of his duties over many years. He cited the medical opinions of Drs. Mohan and Smith on the question of a causal relationship between the earplugs and ear infections. [40] On behalf of the employer, the HR manager submitted that the ARO was correct in denying the worker s request to change the date of accident to June 1, With respect to the worker s ear infections, the employer s representative noted the worker claimed short term disability benefits on three occasions between 2000 and 2007 and on each of these occasions Dr. Mohan expressly advised the private insurance carrier that the worker s condition was non work-related. The HR manager also noted that there was evidence that the worker continued suffer ear infections after his retirement. (v) Analysis and conclusions [41] I have carefully considered all of the available evidence in the Case Record, testimony of the worker and submissions of the representatives. (1) Should the date of accident for the worker s NIHL be changed from February 19, 2008 to June 1, 1987? [42] The accident date sought by the worker is Accordingly, the pre-1989 Workers Compensation Act (WCA) applies as amended by the Workplace Safety and Insurance Act (WSIA). The accident date determined by the Board is 2008 and the WSIA applies. [43] The outcome of this appeal is not affected by a determination on which statute applies because the definition of accident is not significantly different between the statutes. [44] The Board identified Operational Policy Manual (OPM) Document No , Determining the Date of Injury as an applicable policy in this appeal which states, in part: For a disablement or an occupational disease, the date of injury is the date the worker suffers the impairment (i.e. the date on which the worker experiences the disabling physical or functional abnormality or loss). [45] OPM Document No , Disablements Noise-Induced Hearing Loss, On/After January 2, 1990 states, in part:

7 Page: 6 Decision No. 742/14 Hearing loss in workers occupationally exposed to hazardous noise is an occupational disease (under s.2(1) and s.15 of the Workplace Safety and Insurance Act) which is peculiar to and characteristic of a process, trade or occupation involving exposure to hazardous noise in Ontario. Guidelines Description of the condition Noise-induced hearing loss (NIHL) is a permanent loss of hearing in both ears resulting from sensorineural (inner ear) damage due to prolonged, continuous, hazardous noise exposure. Entitlement Workers with occupational NIHL that is sufficient to cause a hearing impairment may be entitled to benefits. Entitlement to health care and rehabilitation benefits begins with a hearing loss of 22.5 db in each ear when the hearing loss in the 4 speech frequencies (500, 1000, 2000, and 3000 Hertz) are averaged. The following is persuasive evidence of work-relatedness in claims for sensorineural hearing loss continuous exposure to 90 db(a) of noise for 8 hours per day, for a minimum of 5 years, or the equivalent, and a pattern of hearing loss consistent with noise-induced sensorineural hearing loss. A presbycusis (aging) factor of 0.5 db is deducted from the measured hearing loss (averaged over the 500, 1000, 2000, and 3000 Hz frequencies) for every year the worker is over the age of 60 at the time of the audiogram. The hearing loss that remains after the presbycusis adjustment is then used to determine entitlement to benefits. Entitlement to health care and rehabilitation benefits is available when the adjusted hearing loss is at least 22.5 db in each ear. Equivalencies The minimum hazardous noise exposure of 90 db(a) for 8 hours per day for 5 years has the following equivalencies (1): 84 db(a) for 40 years 89 db(a) for 7 years 85 db(a) for 28 years 91 db(a) for 3.5years 86 db(a) for 20 years 92 db(a) for 2.5 years 87 db(a) for 14 years 93 db(a) for 1.8 years 88 db(a) for 10 years 94 db(a) for 1.25 years [46] OPM Document No , Disablements Noise-Induced Hearing Loss applies to NIHL claims prior to 1990 requires that the average hearing loss of the four speech frequency levels 500, 1,000, 2,000 and 3,000 Hertz in the American National Standards Institute (ANSI) or International Organization for Standardization (ISO) audiometer standards is 25 decibels in each ear. [47] I find that the Board was correct in denying the worker s request for an accident date prior to February 19, 2008.

8 Page: 7 Decision No. 742/14 [48] In reaching this conclusion, I acknowledge that the audiograms conducted on June 1, 1987, November 11, 1994, May 15, 2000 and October 19, 2005 were all conducted at the same medical clinic. However, I find the results of the audiometry conducted at the clinic unreliable because the measurements of hearing loss vary significantly between tests and actually suggest improvement in the worker s bilateral hearing loss between 1994 and [49] I am also persuaded by the medical evidence that indicates that the worker s primary hearing loss was at the low frequency range as reported by Dr. Smith and the pattern of hearing loss was not typical of NIHL as noted by the Board audiologist. He described the hearing loss pattern in 1987 as a cookie bite configuration consistent with chronic middle ear disease and subsequent hearing loss patterns as flat and not consistent with occupational noise damage. [50] I am satisfied that February 19, 2008, is the correct accident date in this case because, as noted by the Board s audiologist, the worker underwent cortical hearing loss testing which indicated loss of hearing in the higher frequencies in addition to the mid- and lower ones. The audiologist opined that it is possible that the loss at this stage has some association with occupational noise exposure. The Board granted the worker entitlement for NIHL on that possibility. (2) Does the worker have entitlement for chronic ear infections? [51] The worker relates his chronic ear infections to his employment as a welder and specifically his job requirement to wear hearing protection. It is the worker s belief that dirty earplugs caused his chronic ear infections. [52] I find, on a balance of probabilities, that the worker s employment and job requirement to wear earplugs did not significantly contribute to the development of his chronic ear infections. [53] In reaching this conclusion, I acknowledge the opinions of Drs. Mohan and Smith. In his report of August 29, 2011, Dr. Mohan opined that the worker s history of chronic ear infections was compatible with the use of contaminated, dirty ear plugs in his dusty work environment. In his report of November 25, 2010, Dr. Smith noted the worker s attribution of his chronic ear infections to his job requirement to wear earplugs. Dr. Smith could not comment on the etiology of the worker s infections because he started treating the worker years after their onset. He advised, however, that such a causal association has been know[n] to occur. [54] In finding, on a balance of probabilities, that the job requirement to wear dirty earplugs did not significantly contribute to the development of his chronic ear infections, I am persuaded primarily by a lack of a temporal relationship between his employment and the occurrences of ear infections. [55] I note that it is not contested that the worker began working for the accident employer in According to his own testimony, he began to wear various types of earplugs from that time. Although the worker could not recall when he began to experience ear infections, the medical reporting from Dr. Mohan places the onset in 1994 about 16 years after he began wearing dirty earplugs. A delay of 16 years between the time the worker began to use earplugs and the time he developed ear infections is not, in my view, supportive of a causal relationship between the two.

9 Page: 8 Decision No. 742/14 [56] I also note that despite changing his hearing protection to external ear muffs in the last few years of his employment and despite retiring in May 2008, and therefore ending his exposure to a dirty work environment, the worker continued to suffer from ear infections at least until November 2008 according to the medical reporting of Dr. Mohan. [57] The worker does not have entitlement for recurrent ear infections.

10 Page: 9 Decision No. 742/14 DISPOSITION [58] The worker s appeal is denied. DATED: April 23, 2014 SIGNED: S. Ryan