NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim No.: [X] Oral hearing held on February 7, 2012 at Halifax, NS [X] Date of Decision: February 23, 2012 Decision: The appeal of the September 27, 2011 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner Brent Levy.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker filed an application with the Board concerning occupational noise induced hearing loss on June 22, The Board s May 24, 2011 decision denied the Worker s claim. This decision was upheld pursuant to a Hearing Officer s decision dated September 27, The Worker appealed to the Tribunal and he is represented by counsel. The Worker s appeal proceeded via an oral hearing. On January 31, 2012, the Tribunal received a medical legal report from Dr. Balys, an otolaryngologist. ISSUE AND OUTCOME: Does the Worker have an acceptable claim for occupational noise induced hearing loss? Yes. The Board is directed to reconsider the Worker s benefit entitlement, including his complaints of tinnitus, in light of this decision. ANALYSIS: The Worker, now retired, was employed in a federal undertaking, and as a result, his claim falls under the authority of the Government Employees Compensation Act, R.S.C. 1985, c. G 8 [ GECA ]. The general scheme of GECA is that it defers questions of entitlement and compensation to the laws of a particular province unless there is a conflict between such legislation. Subject to the provisions of GECA, the Workers Compensation Act, S.N.S , c.10, as amended [the Act ] applies to this appeal. Section 186 requires that the Worker s appeal be decided in accordance with the real merits and justice of the case. Section 187 of the Act gives the Worker the benefit of the doubt on any issue involving compensation. As a consequence of section 187, the Worker s burden of proof is on an as likely as not basis. Board Policy 1.2.5AR applies to hearing loss claims occurring after January 1, Pursuant to section 183 of the Act, policies adopted by the Board are binding on the Tribunal provided they are consistent with the Act. Policy 1.2.5AR requires that a worker making a claim for gradual noise induced hearing loss satisfy the following criteria: This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 1. That noise exposure is a characteristic of, or peculiar to, a worker s industry or occupation; 2. That the particular noise exposure exceeded the acceptable noise exposure levels set out in Policy 1.2.6R; 3. That there is audiogram evidence that measures hearing loss at 500, 1000, 2000 and 3000 hertz; and, 4. That the audiogram exhibit a pattern consistent with noise induced hearing loss. On June 16, 2010, the Worker s hearing was tested at a hearing and speech centre. The Worker was 59 years of age when this test was performed. The hearing loss thresholds were 105 for the Worker s right ear and 60 for his left ear. The audiologist completed a report dated June 30, In this report, the audiologist noted the Worker s complaint of hearing loss which gradually developed along with constant bilateral tinnitus. The audiologist stated that the Worker had normal sloping to severe sensorineural hearing loss in his right ear with normal sloping to mild sensorineural hearing loss in his left ear. The Board requested an opinion from its audiology consultant, who issued a report dated May 17, The audiology consultant accepted that the Worker was employed in situations that could have potentially damaged his hearing. The audiology consultant reviewed the 2010 diagnostic audiogram as well as seven screening audiograms performed between 1971 and The audiology consultant identified the criteria that an acceptable hearing loss claim must meet. In addition to sufficient exposure to work related noise, and hearing loss of at least 100 decibels in an ear, the audiology consultant stated that the hearing loss must display a configuration and pattern of deterioration that is consistent with a hearing loss due to prolonged exposure to excessive noise. The audiology consultant stated that the leading and most widespread research, which the audiology consultant footnoted, indicates that noise induced hearing loss will be symmetrical. The audiology consultant allowed that the research also demonstrates that an asymmetry of 10 decibels is acceptable. Greater degrees of asymmetry, however, were said to be attributable to causes other than noise exposure. The audiology consultant reviewed the screening audiograms and concluded that the Worker s hearing was essentially normal for approximately 17 years. There was no

4 4 deterioration between 1978 and 1989 and there was even some slight improvement at a couple of frequencies. The audiology consultant suggested that the Worker s occupational noise exposure had little effect on his hearing. The audiology consultant concluded that the asymmetrical hearing loss observed in 2010 was not related to the Worker s employment and was due to other causes. The audiology consultant recommended that the Board use the hearing loss thresholds for the left ear to assess the Worker s entitlement to compensation. The audiology consultant stated that cardiovascular disease and presbycusis are several well known causes of hearing loss. The audiology consultant noted that the Worker has been treated for cardiovascular disease. The audiology consultant stated that presbycusis accelerates after age 50, and the Worker, as noted, was 59 years old when the 2010 audiogram was performed. Policy 1.2.5AR, however, does not contemplate an automatic deduction for presbycusis until a worker is 60 years old. The Board accepted the audiology consultant s recommendation. The Board s May 24, 2011 decision concluded that the Worker s degree of asymmetry was beyond that which was acceptable and that the pattern of hearing loss was not consistent with deterioration caused by noise. As a result, the hearing loss threshold for the right ear was disregarded. Given that the hearing loss threshold for the left ear only totalled 60 decibels, the Worker s claim was denied. The Worker was also examined by Dr. Balys, an otolaryngologist, on March 30, Dr. Balys noted the Worker s occupational noise exposure and described his expose to artillery fire, without hearing protection, when a door unexpectedly opened on a firing range. Dr. Balys recited that there was at least one occasion when such exposure caused physical pain in the Worker s ears which lasted several hours. Dr. Balys noted the Worker s non occupational noise exposures, including the purchase of a firearm in his youth and his more recent attendance at car races. The Worker was said to wear hearing protection at such events. Dr. Balys also noted the Worker s medications and his medical history, which included high blood pressure and cholesterol. The Worker s hearing was tested and Dr. Balys stated that there was bilateral sensorineural hearing loss consistent with noise exposure. The hearing loss was considered borderline severe in the right ear and moderate in the left ear. Dr. Balys stated that the Worker had noise induced hearing loss and that his only source of noise exposure was in the workplace. Dr. Balys also stated that he did not see evidence of presbycusis. The penultimate paragraph of Dr. Balys report reads as follows:

5 5 Although the hearing loss is somewhat asymmetrical, the pattern is certainly consistent with noise exposure. As well his history, was at least one extremely loud noise exposure resulting in unilateral ear pain, could easily account for the mild asymmetry. (Errors in original) The Worker s counsel obtained a medical legal report from Dr. Balys dated December 28, At the outset of the medical legal report, Dr. Balys affirmed the contents of his consultation report. Dr. Balys also stated that he had reviewed the audiology consultant s opinion. Dr. Balys stated that the audiology consultant had considered chronic daily noise exposure but had not considered the Worker s report of at least two episodes of sudden noise trauma. Dr. Balys noted that such exposures occurred when the door to a firing range was opened on two occasions. Dr. Balys reiterated that the Worker s pattern of hearing loss was consistent with noise exposure and his report reads, in part, as follows: The pattern of hearing loss in [the Worker s] audiogram is consistent with noise exposure. The evidence provided by Michael Sharpe deals with chronic daily exposure and does not consider that, according to [the Worker s] history, there was at least 2 episodes that he reported to me of sudden noise trauma...[the Worker] was not wearing any protection at these times and the exposure resulted in immediate symptoms. Not only would this account for his continued hearing decline when working in the quieter environment but it would also account for the asymmetry of the hearing loss. [The Worker] has a history of hypertension and hypercholestrolemia controlled with medications. I find the argument that this contributed to a hearing loss from 4 to 6 khz, weak and I struggle to believe there is any literature which would support this argument. I am not able to account for this patients hearing loss from causes other than his noise exposure. His history gives adequate explanation for the reason of the asymmetry of the hearing loss and the progression of loss after he began working in a quieter environment. Blast injury would certainly affect one ear more than the other and account for his hearing loss. I did not elicit any source of unprotected noise exposure. The Worker testified that he was employed as a weapons mechanic/technician from approximately 1971 to The Worker stated that he was an apprenticed technician from 1971 to From 1973 to 1983, the Worker worked as a trained weapons mechanic/technician. While employed as a weapons technician, the Worker described actually working inside

6 6 the guns onboard ship or working on the guns in a shop facility. The Worker stated that he would go on live fire tests at sea and, as noted by Dr. Balys, was exposed to gunfire at a firing range. The Worker testified that from approximately 1983/1984 until 2006 he was employed as a planner. The Worker stated that his main responsibility was going onboard ships to estimate job requirements and prepare the associated paperwork. While this was viewed as a quieter occupation by the Board and Dr. Balys, the Worker testified that his exposure to occupational noise continued because he was frequently onboard the ships while other technicians were working. The Worker testified that he wore hearing protection at work. The Worker stated that in the 1970s he primarily wore earmuffs. The Worker stated that in the 1980s foam earplugs became more readily available, and he preferred this form of hearing protection. The Worker also addressed his traumatic noise exposure. The Worker stated that on at least two occasions the door to the firing range opened and exposed him to blasts from guns with a three inch bore. The Worker was not able to recall with any degree of certainty when these events happened. The Worker s best recollection was that they occurred in the late 1980s or early 1990s. The Worker was able to recall the circumstances surrounding one of the incidents. The Worker could not recall which ear was affected, but he recalled that one of his ears hurt instantly when he was exposed to the blast. The Worker stated that his ear hurt as he drove away from the range and he recalled it still ringing that evening while he lay in bed. The Worker acknowledged that he did not seek medical treatment because of such noise exposure. The Worker testified that he experienced a similar exposure on at least one other occasion, but this incident was not as bad as the incident he described in detail. The Board s decision to discount the 2010 audiogram results for the right ear was based, as noted, on the audiology consultant s recommendation. The audiology consultant had concluded that the pattern and progression of hearing loss was not consistent with occupational noise exposure. This analysis relied on screening audiograms. The audiology consultant addressed the reliability of the screening audiograms. The 1988 screening audiogram was said to have been performed by Michael Comeau, an audiologist with the Nova Scotia Hearing and Speech Centre. The audiology consultant stated that there was no significant difference between the 1988 and 1989 screening audiograms. Given that these tests were conducted approximately

7 7 one year apart, and produced similar results, the audiology consultant concluded that there was high reliability. In Decision AD (January 25, 2011, NSWCAT), a panel of Appeal Commissioners reviewed prior decisions concerning the reliability of screening audiograms. This review noted that the Tribunal has generally not considered screening audiograms to be reliable enough to entitle or dis entitle a worker to compensation. Some of the concerns typically identified relate to whether the audiogram was performed by a qualified audiologist, performed in a facility that was soundproof, or used equipment which may not have been properly calibrated. Decision AD (April 28, 2010, NSWCAT) was also considered by the panel. This decision appears to carve out an exception to the Tribunal s general position concerning the reliability of screening audiograms. This decision accepted that screening audiograms can be somewhat probative, particularly if they are highly consistent with more reliable tests. In the present appeal, the Worker testified that the screening audiograms were conducted in a booth. The audiology consultant noted that the 1988 audiogram was performed by an audiologist. There is, however, no indication in the audiology consultant s report that the other screening audiograms were performed by qualified audiologists. The other concerns about the reliability of the screening audiograms, such as the reliability of the test equipment, remain. The exception carved out by the Tribunal envisaged the consistency of the screening audiograms with more reliable, ie. pure tone audiograms, rather than consistency between screening audiograms. As a result, limited evidentiary weight has been accorded the screening audiograms and the analysis based on such audiograms. In Decision AD, cited previously, the Tribunal also considered the notion that a worker must demonstrate a pattern of deterioration consistent with hearing loss. The Tribunal concluded that Policy 1.2.5AR only requires that the shape of the audiogram be consistent with noise induced hearing loss and that there is not a policy requirement concerning the pattern of deterioration. I adopt this analysis in the present appeal. Dr. Balys stated in his medical legal report that the Worker s pattern of hearing loss...is consistent with noise exposure. I accept that this satisfies the requirements of Policy 1.2.5AR. The audiology consultant stated that research supports that no more than 10 decibels of asymmetry is acceptable and that greater degrees of asymmetry are not attributable to occupational noise. Dr. Balys characterized the Worker s hearing loss as somewhat

8 8 asymmetrical. Dr. Balys stated that the Worker s hearing loss was consistent with noise exposure and that the degree of asymmetry was likely explained by the traumatic noise exposure on the firing range. Policy pertains to the weighing of conflicting medical evidence. The Worker testified that Dr. Balys questioned him thoroughly. The Worker stated that he disclosed his use of hearing protection at work and fully disclosed his medical conditions and non work related noise exposures. Dr. Balys March 30, 2011 assessment corroborates the Worker s testimony. Dr. Balys described the Worker s occupational and non occupational noise exposures as well as his medical conditions and associated medications. As a result, I accept that Dr. Balys had a full understanding of the Worker s medical condition and noise exposures when his opinion was provided. The Board s audiology consultant is an audiologist and he did not examine the Worker. In contrast, Dr. Balys is an otolaryngologist and he examined the Worker. Given Dr. Balys expertise and direct examination of the Worker, I prefer his opinions to those of the Board s audiology consultant. Although the Worker could not recall which ear was unilaterally affected by the gunfire on the artillery range, he was a credible witness who testified in a straightforward manner. Given the Worker s testimony, and the opinions of Dr. Balys, I accept that it is as likely as not that the Worker s right sided hearing loss was primarily caused by his occupational noise exposure. I also accept that the hearing loss thresholds for the right ear accurately assessed the Worker s hearing loss. The hearing loss thresholds for the right ear, which totalled 105, satisfy the policy criteria concerning the degree of hearing loss that is required. The Board is directed to reconsider the Worker s benefit entitlement, including the compensability of his tinnitus, in light of this decision. CONCLUSION: The Worker s appeal is allowed. There is sufficient evidence to conclude on an as likely as not basis that the Worker s hearing loss in his right ear is attributable to occupational noise exposure. The Board is directed to reconsider the Worker s benefit entitlement.

9 DATED AT HALIFAX, NOVA SCOTIA, THIS 23 rd day of February, Brent Levy Appeal Commissioner