Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Workplace Health, Safety and Compensation Review Division office in Mount Pearl, Newfoundland and Labrador on June 12, The worker attended the hearing and was represented by Mel Strong, Appeals Officer with the Government Members Office. 2. Neither the employer nor the Commission attended or participated in the hearing process. 3. The oral hearing in this matter was conducted by Review Commissioner Judy Manning on June 12, By the consent of the worker, the Chief Review Commissioner completed the review of the application by way of reference to the Case Description and the record of the hearing. Introduction 4. On September 22, 2009 the worker submitted a claim for industrial hearing loss which he related to his employment as a fire captain. Audiograms were conducted on September 16 and 22, The worker retired from his employment as a fire captain on March 31, On November 25, 2009 the Commission s audiology consultant reviewed the file. 6. A December 1, 2009 extended services adjudicator s decision denied the worker s claim for hearing loss. The worker appealed. 7. A February 18, 2010 decision denied the worker s claim for tinnitus. A March 10, 2010 internal review specialist s decision upheld the denial for hearing loss and tinnitus. 8. On April 29, 2010 the Commission s audiology consultant reviewed the file. A May 10, 2010 decision again denied the worker s claim. 9. On June 11, 2012 the worker submitted a new claim for industrial hearing loss with a copy of a June 6, 2012 audiogram. 1

2 10. On September 28, 2012 the Commission s medical consultant reviewed the file. 11. An October 10, 2012 intake adjudicator s decision denied the worker s claim. The worker appealed with a November 4, 2012 submission relating the worker s hearing loss to chemical exposure, as well as noise exposure. 12. A December 13, 2012 internal review decision referred the advisor s submission back to the intake adjudicator for review. Information regarding workplace chemicals was requested from the employer, but the employer was unable to provide same. 13. A May 15, 2013 intake adjudicator s decision denied the worker s claim for hearing loss related to chemical exposure. The worker appealed with a June 13, 2013 submission. 14. A July 25, 2013 internal review decision referred the claim back to the intake adjudicator for a more thorough review of the worker s occupation and possible workplace exposures to noise and chemicals. 15. On October 30, 2013 the Commission s medical consultant reviewed the June 6, 2012 audiogram. 16. The November 7, 2013 intake adjudicator s decision again, denied the claim. The worker appealed. 17. The January 31, 2014 internal review decision upheld the denial. It is this decision the worker is appealing before the Review Commissioner. Issue 18. The worker seeks a review of an Internal Review decision of the Commission dated January 31, 2014 and requests a finding that the Commission erred in denying this worker s claim for industrial hearing loss. Outcome 19. The Commission s decision of January 31, 2014, is set aside as it is not in accordance with the Act, regulations, and policy. 20. The claim is referred to the Commission for the appropriate considerations and adjudication in accordance with the complete direction of Policy EN-12: Hearing Loss and Sections 43, 19(4) and 60(1). The Commission is directed to further assess the claim with consideration given to the direction as provided in this Decision. 2

3 Legislation and Policy 21. The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26.(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a review commissioner 28.(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) notify the person seeking the review and the commission of the time and place set for the review; and 3

4 (b) review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 22. Also relevant and considered are Sections 19(4), 43, 90, and 60(1) of the Act, along with Policy EN-12: Hearing Loss. Relevant Submissions and Positions 23. At the outset of the hearing, Mr. Strong indicated he was representing the worker, however, he advised the worker preferred to actually present the argument himself. Mr. Strong provided closing commentary following the worker s presentation. 24. The hearing began with a clarification that there was a discrepancy in the date of the audiogram reports on the file. Throughout the file there are varying references to audiogram reports in 2010; however, the worker advised there were no audiograms for 2010 rather the only two audiograms earlier in the file are those dated September 16, 2009 and September 22, This created some confusion with the Commission s handling of the claim; the worker suggests, as the decision making appears to rely on an audiogram from 2009 and 2010 when in fact there was no 2010 audiogram. 25. The worker s argument is twofold. One is that he submits the Commission has failed to look at the circumstances of his work history, his occupation, the nature of his claim and the evidence of his treating specialist in the consideration of his claim under Policy EN-12: Hearing Loss. Secondly, he submits the extent of chemical exposure he experienced and its effects upon his hearing have not been considered by the Commission under Section 60(1) as required by the Act. Specifically, he submits much of the information the Commission required with respect to his chemical exposure is available and documented with the employer, however, the Commission has not put forth adequate efforts to obtain the information. 4

5 26. The worker began by addressing the file evidence in response to the decision of the internal review specialist. The worker took exception to the interpretation of the September 22 nd report provided by the Commission s audiology consultant; as the consultant referenced a 2010 report rather than the 2009 report and that there was no rationale outlined for the averages the consultant provided with respect to the hearing loss he concluded exists. 27. The worker submitted he has calculated the averages from the September 22, 2009 audiology report and he arrived at different averages than the Commission s consultant. The worker suggested his averages were 28 decibels in the right ear and decibels for the left ear. These averages, he submits, are consistent with the policy requirements for coverage. He questions the reliability of the consultant s interpretation of the audiogram. 28. During his presentation, the worker emphasized that the Commission was incorrect to automatically deny his claim because his hearing loss did not meet the 25 decibel loss in each ear in order for his hearing loss to be considered as compensable. He notes the Policy requires consideration of more than the actual audiogram. The worker submits the Policy requires consideration of a full work history and in this case, the worker contends the work history and the nature of the work have not been fully reflected in the file for consideration. He does note his previous representative s correspondence of February 22, 2010 where he stated the following: [The worker] was a firefighter for 30 years. This occupation does have documented hazardous workplace noise levels, which include noise from sirens, power tools, and heavy engines and pumps. It is also noted scientifically that exposure to chemicals and toxins may aid in the development of NIOHL and Tinnitus. He would have been exposed to various chemicals and toxins both on the fire ground and while working in close proximity to both gas and diesel engines. Policy EN-12 indicated that chemical and biological exposures may be considered where they arise out of and in the course of a workers employment. He has no family history or hearing loss as verified by [the physician] and since his retirement he has not been exposed to a hazardous noise environment. 29. With respect to the information relative to work history, the worker contends that the employer has consistently maintained records relating to hazardous workplace noise and chemical exposure. This information, the worker indicates, does exist and should be sought by the Commission. 30. Further, the worker testified that in his employment as a firefighter, which began in 1976, he and other firefighters did not have the benefits of hearing protection. In fact, he stated the nature of the work was such that ear plugs would impede his ability to do his job. He relied on his ability to hear to find victims and hear other sounds relative to his occupation. The worker stated he was a suppression firefighter which meant he was a front line firefighter meaning he worked rescue in confined spaces, climbed on roofs, etc. 31. The worker maintains that thirty years employment in this type of employment has contributed to his noise induced hearing loss and the condition of tinnitus. 5

6 32. Chemical exposure has also been submitted by the worker as contributing to his hearing loss and tinnitus. The worker notes the issue of chemical exposure was commented upon by the internal review specialist in his July 25, 2013 correspondence. The worker notes the following from the correspondence: [The worker], I have completed a preliminary review of your case and I note that you retired in March The most recent audiogram which is available on your case is for June I reference Section 60 (1) of the legislation which states: An issue related to a worker s entitlement to compensation shall be decided on a balance of probabilities and, where the evidence on each side of an issue is equally balanced, the issue shall be decided in favour of the worker. It is clear from this section of the legislation that the Commission does not require conclusive proof in order to determine an issue. The worker s entitlement to compensation is to be decided on the balance of probabilities. Given the above, I find it would be prudent for the adjudicator to complete a more in-depth review with respect to the occupation of firefighting and the possible exposures which might be possible in the occupation. From there, the adjudicator can then provide a further decision with respect to whether you would have entitlement for any possible hearing loss under the Commission s legislation and policies with respect to this issue. 33. The worker also notes the correspondence dated March 6, 2013 forwarded to the worker s employer with respect to chemical exposure. The reply of the employer is dated March 28, 2013 and states: [The worker] was a member of Suppression which could have exposed him to different chemicals but our Department do [sic] not have specific names. [The worker] was supplied and/or issued protective clothing and equipment for protection. 34. The worker expressed considerable frustration with this response. He submits there is considerable information available with the employer in relation to chemical exposure. For example, many of the fire stations had to undergo extensive renovations due to the presence of high levels of carbon monoxide, as well as mold. At one point, the worker submitted firefighters were moved around the various stations as a result of the carbon monoxide levels. This information and more, he submits is available from the employer but has not been considered. 35. The worker also indicated that it is noteworthy to recall the nature of the protective clothing and equipment the employer referenced. In 1976, when he began his employment, the worker states he was outfitted with a plastic helmet, fire gloves, knee length coat and rubber boots. This was the extent of his protective clothing for a long time. He described his 6

7 firefighting experience as being very intense, stating firefighters were often left with burns on their neck, hair singed, ears burnt, spent days coughing up black soot after a fire, etc. 36. During his early employment the equipment, he states was, for the most part, three sets of breathing apparatus shared sometimes between 22 men. Some men fought the fire from the street or outside while others were to go inside the structure. Many of these fires were in buildings containing asbestos and multiple other types of toxins. He recalled several fires; one he fought consistently for 8 hours in an older building full of asbestos and another where the floor he was on collapsed and he required four hours of oxygen due to his inhalation of smoke, chemicals and other toxins resulting from the fire. 37. The worker suggests there are numerous studies done on his occupation and the risks of firefighting and the Commission has not considered any of them. In fact, he states there are cancers related to his occupation and he has had a kidney removed due to cancer and now has a cancer spot on his lung. It appears to him, the only consideration for the Commission is whether he meets the 25 decibel threshold for a compensable hearing loss. The Commission, he submits, rather than consider his position has relied on a 2 ½ line reply from the employer on his exposure. The worker indicates it is very frustrating to be on the receiving end of these decisions from the Commission. 38. The worker referenced the Commission s Audiologist s Report, AR Form of September 22, 2009 noting the Comments as, results suggest occupational noise damage to hearing as least as contributor to total loss. He also referenced the assessing audiologist s report of September 22, 2009 as Configuration of loss with history of work in noise (fire chief) strongly suggest occupational noise induced hearing loss. 39. The worker also relied on the report of his treating ENT specialist dated January 4, 2010 wherein he stated: He is having terrible trouble with tinnitus as a result of his occupation noise exposure. He does have a classic noise induced type sensorineural hearing loss at 3 khz and I suggested that he get fitted with some hearing aids as maskers to help control his tinnitus. 40. The worker summarized by arguing the Commission has made judgments on his claim without the information they needed. He stated he was first denied because he did not meet the 25 decibel level, then denied because his latest audiogram was outside the five year time frame required, then denied without information on the chemical exposure. The worker maintains that throughout all of this, the Commission has never considered all the evidence on this claim appropriately, in relation to his claim for compensable hearing loss. 41. Mr. Strong concluded the presentation and emphasized the need to consider the submissions as provided by the Workers Advisor on this claim. He noted two pieces of correspondence from the Workers Advisor dated November 4, 2012 and June 13, 2013 and suggested these submissions clearly outline the worker s position. 7

8 42. Further, Mr. Strong submitted in this case there is no family history of hearing loss and it was not an inherited condition for the worker. Mr. Strong argued this case requires consideration of the exceptional circumstance provisions and argued there has been no demonstration of the required balance of probabilities analysis; particularly giving due consideration to the nature of the worker s 30 year employment history. 43. The position of the Commission is outlined in the decision of the internal review specialist dated January 31, Following a review of the sequence of events on this claim, the internal review specialist referenced the audiograms and the opinion of the medical consultant dated September 28, She concludes her decision as follows: [The worker s advisor] presents the argument that your claim should be accepted for industrial hearing loss due to your exposure to chemicals as a result of your employment as a Fire Fighter. However I note that your file had been reviewed previously on 2 occasions based on 2009 and 2010 audiograms but at that time you did not meet the levels for compensation benefits. The Intake Adjudicator notes that although it s possible that you were exposed to chemicals as a Fire Fighter you did not meet levels for compensable benefits based on the audiograms dated for 2009 and She notes that the audiogram dated June 2012 which was reviewed by the Commission s Medical Consultant you do meet the levels for compensable benefits, however she is unable to relate the progression of your hearing loss since the audiograms in 2009/2010 to chemical exposure in the workplace. She notes that have (sic) not worked since 2006., although you do meet the levels based upon the 2012 audiogram, I also note that you have not worked since The previous 2 audiograms which were completed closer to your employment, did not qualify you for industrial hearing loss as you were below the required levels. In review of Policy EN- 12, I note it is clear for those workers who are no longer exposed to hazardous noise levels in the workplace because they have either changed workplace locations or have left their employment, the Commission will consider an audiogram performed at the time of termination of exposure to hazardous noise levels or an audiological assessment performed within 5 years of the last exposure to hazardous noise. In your case, the 2 audiograms closest to your employment were reviewed (2009 and 2010) however you did not qualify for industrial hearing loss as your levels were below the required levels. Although the audiogram of 2012 does meet the required levels, I note that this is beyond the 5 years of your last exposure to hazardous noise as you retired in [The worker s advisor] has not presented any information indicating that your hearing loss (audiogram of June 2012) is a result of your chemical exposure in the workplace. As well, [the worker s advisor] submits that your tinnitus should be accepted as compensable. However Policy EN-12 does indicate that claims for tinnitus will be considered where a claim has been accepted for compensable noise induced hearing loss. As your claim has not been accepted for hearing loss, your tinnitus cannot be considered. Therefore from my review of all 8

9 information on your file taking into account [the worker advisor s] submission as well as the applicable legislation and policy, I will have to concur with the Intake Adjudicator that as your claim is documented, that I am unable to relate your current hearing loss to chemical exposure in the workplace. Therefore your request for coverage for industrial hearing loss remains denied. Analysis 44. I have reviewed the file and I have heard the worker s presentation as provided on June 12, The worker has been attempting since September, 2009 to have his entitlement to benefits for industrial hearing loss adjudicated in accordance with the policies and the Act. Despite his efforts and the significant efforts of others on his behalf, the Commission has failed to engage in a thorough review. 45. The reasons for this vary from decision to decision, however, it is clear that one of the internal review specialists did conclude that the worker s claim required further investigation, particularly on the question of chemical exposure, and the subsequent decisions appear to resist this direction from the Commission s own internal review specialist. This is not only highly unusual, but it has implications in this review. 46. I begin by clarifying the worker has had only three audiograms two in 2009 and another in Despite the Commission s multiple and continuing references to a 2010 audiogram and reliance on same, there is no 2010 audiogram in the file and I accept the worker s testimony that he did not have an audiogram in There are many different approaches that could be taken in this decision, as there are errors on different elements of the issue properly before the Commission. I will not comment extensively on all of them. The primary errors justify a remission to the Commission in order to properly investigate the claim, and I will comment on the others, as required, so as to provide the necessary direction. 48. In general, I find that the Commission has erred by doing the following; a) Failing to demonstrate that it has adequately reviewed the claim evidence in relation to the worker s claim of occupational hearing losses. I am not satisfied that all the relevant file evidence was carefully considered and taken into account, for reasons to follow; b) Rigidly applying Policy EN-12: Hearing Loss to the case without considering; - Whether there are special or unusual features evident in this case which would make the strict application of the Policy inappropriate; - Whether the Policy itself completely embraces all the circumstances of the case, or whether the Commission had to move beyond that and include considerations based on the general directions in the legislation; 9

10 c) Applying Policy EN-12: Hearing Loss incorrectly by failing to investigate and consider the worker s full employment history, as is required by the Policy. d) Failing to consider the worker s claim as chemically-induced hearing loss under Section 43 of the Act, and refusing to consider whether Section 90 of the Act could also be applicable to the question; e) Failing to comply with the internal review specialist s directive to investigate the worker s claim of chemically induced hearing loss, which directive I believe was justified in the circumstances of this case; f) Failing to provide a decision which is responsive to the case presented by the worker, which is a requirement of the Act, generally, and of Section 60(1) in particular. 49. As indicated, I could address each of these points extensively. However, it should suffice to say at this point that the Commission should have done, and now must do, the following; a) Consider the worker s full employment history under Policy EN-12: Hearing Loss, as it is required to do. It must also provide an analysis of all three audiograms, including the 2012 audiogram, and provide a new decision that analyzes the first two audiograms and explains the discrepancies between them. As part of this process, it must also address the worker s submission that he has averaged the figures himself and obtained an average that places him within the compensable range. Reasons are to be provided on all these points. b) The Commission must also explore whether the worker s tinnitus is caused by noise exposure, or could have a basis in chemical exposures, the latter of which may not be addressed within the confines of Policy EN-12: Hearing Loss. Reasons must be provided on this point as well. c) It must also fully explore the worker s submission and evidence that his hearing loss could be related to the occupational exposures he has provided. This involves obtaining further confirmation from the employer, as I am not convinced that the inquiry of the Commission or the response of the employer is adequate. This question must be performed in acknowledgement of Section 43 and/or Section 61, if applicable, and it must consider whether Section 90 is applicable to the situation. Again, reasons must be provided on these points. 50. This is a more detailed direction than normally is provided, but given that this claim has not been resolved for five years, and there is what appears to be a detectable resistance to engage the applicable principles even despite the rulings of the Commission s own internal review specialist, I find this specific direction is required at this stage. The Commission has the latitude to manage its claims processes, but I find that any subsequent adjudication that does not, at a minimum, address these points above, will not comply with the legislation and policies. 10

11 51. For clarity, I will explain the nature of the Commission s errors. With respect to the noise induced hearing loss claim, Policy EN-12: Hearing Loss sets out five conditions to be considered when assessing a hearing loss claim. It states: Hearing loss that develops slowly over a long period of exposure to continuous or intermittent hazardous noise levels is referred to as noise-induced hearing loss. The following conditions will be considered to determine entitlement to compensation for noise induced hearing loss caused by hazardous noise in the workplace: 1. A full work history is provided and actual or estimated noise level readings from one or more of the employments indicate that the worker has been exposed to hazardous noise levels. 2. Noise levels will be considered hazardous where there is evidence of: a continuous noise exposure for two years or more at eight hours per day at 85 db(a), or a threshold limit value with a 3 db(a) exchange rate for levels other than 85 db(a); or, b. intermittent noise exposure for a five year period at eight hours per day at 85 db(a), or a threshold limit value with a 3 db(a) exchange rate for levels other than 85 db(a). The threshold limit value is a guideline for noise exposure which incorporates sound pressure levels in db and duration of exposure to determine the hazard. The Occupational Health and Safety Regulation states that permissible noise levels in this province will be based on the standards issued by American Conference of Government Industrial Hygienists (ACGIH). A threshold limit value of 8 hours at 85 db(a) is hazardous and uses the 3 db exchange rate. Therefore, 88 db(a) is hazardous at 4 hours of exposure and 82 db(a) would be hazardous after 16 hours of exposure. 3. Hearing loss caused by exposure to occupational noise has been evaluated, by averaging the four speech frequencies, 500, 1000, 2000, and 3000 Hertz, in each ear separately, and the loss is 25 decibels or more in each ear. While noise induced hearing loss is typically bilateral, asymmetric sources of noise, such as sirens or gunshots, can produce asymmetric loss. When evaluating cases of asymmetric loss, a referral to rule out retro-cochlear lesion is first warranted before attributing the loss to noise. 4. Hearing loss entitlement decisions will be based on: a. An audiological assessment performed by an audiologist, using the standard reporting requirements established by the Commission, and the requirements outlined in 2(a) or (b) have been met; 11

12 b. For those workers who are no longer exposed to hazardous noise levels in the workplace because they have either changed workplace locations or have left their employment, the Commission will consider an audiogram performed at the time of termination of exposure to hazardous noise levels or an audiological assessment performed within five (5) years of the last exposure to hazardous noise. 5. Allowance for presbycusis is 0.5 db(a) reduction for each year over the age of I agree with the worker as regards the Commission s application of this Policy with respect to consideration of the full work history. Clearly, this did not occur on this claim despite the multiple suggestions and references by the Commission that it did occur. I refer specifically to the decision under review dated January 31, There is no reference to the worker s work history except to state he was employed as a firefighter. There is no demonstration of what was considered as work history, the nature of the employment, etc. There is a reference to the information that was provided by the employer; however, that evidence, or the sufficiency of it, was not addressed in the Reasoning portion of the decision. 53. As there is no consideration of that evidence in the decision of the internal review specialist, I referred to the decision of the intake adjudicator on the basis that it may have been addressed there and that the adjudicator s decision may inform the internal review specialist s reasoning, however, it too was absent such an analysis. I do not accept that the reference to the employer s brief statement and an acknowledgement of the worker s occupation constitute consideration of his full work history. 54. At this point, I am satisfied the decision of the Commission is not in accordance with the applicable Policy, EN-12: Hearing Loss and the decision is appropriately set aside for this reason alone. However, as I stated previously, there are other observations that I wish to make, as I conclude that I have to, refer this matter to the Commission for further review. I cannot conclude from the record whether the worker is entitled or is not entitled, but I find that the Commission cannot deny his claim based on the approach and reasoning it has provided to date. 55. I note the following: a. The decisions to deny the worker s request have included consideration of the Commission s audiology consultant s opinions. I note the opinions as follows: i. November 25, 2009: The consultant notes he is reviewing the September 16, 2009 audiogram resulting in an average hearing loss of 22.5dBHL in the right ear and and average hearing loss of 21.25dBHL in the left ear. ii. April 29, 2010: The consultant notes he is reviewing an audiogram of September 22, 2010 which is in fact, not 2010, it is a second 2009 report which was completed six days after the first report. In this second report, 12

13 conducted six days later, the recorded averages reflect different findings of 15dBHL in the right ear and an average loss of 21.25dBHL in the left ear. b. Given this discrepancy in the findings, and to ensure the reliability of the dates, I confirmed the WHSCC receipt date stamped the reports as being received as September 25, 2009 and October 15, As a result, I accept there is no 2010 report and the audiology consultant was in error to refer to same. Further, the continued reliance by the Commission s decision makers on a 2010 report further complicated the adjudication process in my view. It also persuaded me that the evidence was not considered carefully and that the opinions which are contained in the file need to be revisited, if for no other reason, to account for the discrepancies in the 2009 reports. c. Another audiology report was completed on June 22, The report was forwarded by the intake adjudicator to the Commission s medical consultant for review. The medical consultant reviewed the report and provided an opinion that as the worker had retired in 2006, with audiograms completed in 2009 and 2010, any progression since the 2009 audiogram would not be the result of occupational noise exposure. Further, he noted that as the worker was more than five years post retirement at the time of the June, 2012 audiogram, he had not calculated the current averages. This opinion introduced the five year time frame noted in 4(b) of the policy considerations, and then it erroneously became the sole reason for denial. Six years is the actual time frame between the report and the retirement and I note is simply one year outside the policy threshold. Further, the worker did provide the Commission with reports within the five year time frame. The first two reports are within three years of his retirement. This enables the Commission to investigate the question under Policy EN-12: Hearing Loss. The 2012 report provides further admissible information as to the profile of the worker s subsequent deterioration, and may have been relevant. There was nothing that stopped the Commission from looking at it except its own conclusion that it was six years old. Here I note that if the worker only had the 2012 report as his disposal, none of the reports would have been within the five year claim, and the Commission s refusal may have been valid. This also suggests to me that there was a selectively narrow view taken of the worker s evidence as it was provided. d. In the Commission s decision under review, I also note there is no reference to the direct evidence provided by the worker, his treating ENT specialist and the treating audiologist report. I note the ENT specialist states: He is having terrible trouble with tinnitus as a result of occupation (sic) noise exposure. The treating audiologist states results suggest occupational noise damage to hearing at least as contributor to total loss and configuration of loss with history of work in noise (fire chief) strongly suggest occupational noise induced hearing loss. This is evidence that links the worker s hearing loss to his employment and requires consideration in the weighing of evidence. e. I note the worker s previous representative introduced the argument with respect to chemical and toxin exposure in his correspondence of February 22, It was not until the issue was triggered by the December 13, 2012 internal review decision that 13

14 the question of chemical exposure was eventually considered by the Commission on March 15, Upon a further internal review of July 25, 2013, I note the internal review specialist referred the claim for the adjudicator or complete a more in-depth review with respect to the occupation of firefighting and the possible exposures which might be possible in the occupation. I note this was more than three years later, during which time the worker was denied benefits for failing to meet the 25 decibel loss in each ear and for failing to provide an acceptable audiogram indicating same within five years of leaving the employment. During this time, there was no consideration given to how the worker s chemical exposure may have contributed to his hearing loss or his tinnitus. f. One would expect, considering the claim circumstances at the point of the July 25, 2013 internal review direction, a full consideration would have been undertaken of the worker s exposure as a firefighter. The result, however, was the decision currently under review which again fails to consider the chemical exposure. g. Also, the Commission chose to rely on a very brief comment from the employer with respect to the worker s exposure to chemicals. as a member of Suppression which could have exposed him to different chemicals but our Department do not have specific names. Yet the worker s position to the Commission included information relative to exposure to solvents such as toluene, xylene, styrene and trichloroethylene and gases carbon monoxide and hydrogen cyanide, at least. The Workers Advisor submitted literature indicating These chemicals can damage the nervous system, including the auditory nerve which allows us to hear and information relative to noise and carbon monoxide exposure yet there is no reference to this literature or any other research that may have been considered in the Commission s decision. While general scientific studies and literature are not always definitive, this, in combination with the Commission s own acknowledgement that the question had to be investigated further, certainly established a credible base that the subsequent adjudicators had to pursue with an appropriate level of inquiry. The submissions provided by the Workers Advisor are comprehensive and deserving of adequate reply. I also note that this information was also not considered or weighed in the decision making process, nor were the Advisor s points of argument addressed, which itself is an error that is fatal to the Commission s decision, as it does not respond to the evidence and case presented. 56. I also note that there was no consideration to the fact that this may be a claim which, unlike most hearing loss claims, had to be considered under the general directions contained in Sections 19, 43, and 90 of the Act, and not confined only to Policy EN-12: Hearing Loss. The hearing loss policy is a guideline, and fits the majority of cases. However, this case has several unusual features as I have already noted. 57. This is not the situation in which a worker simply comes forward with a subjective theory, unsupported by any evidence, that his hearing loss is attributable to work. As I indicated previously, there were two professionals, the ENT specialist and the audiologist, who provided direct opinions supporting the worker s position that his exposure was workrelated and his hearing has been damaged. Also, the worker s theory as to chemical exposure may have at least some support in the general medical literature provided, and this 14

15 was certainly enough to warrant further investigation once the internal review specialist acknowledged that there may be an alternative basis for the worker s claim, and that it was not entirely noise-related. For example, the Commission s statement that the worker s hearing would not have been expected to deteriorate following retirement, makes sense if the only alleged cause is occupational noise. It is accepted that noise-induced hearing loss does not progress once the worker is removed from the source of the noise. However, what if the source of the damage was not noise related, but also had a chemical component? I am not finding that this is the case, but it serves to illustrate why the matter had to be investigated further, instead of terminated on the premise that the technical requirements of Policy EN-12: Hearing Loss decided the matter. 58. Given the features of this claim, the question has to be decided not only on a consideration of Policy EN-12: Hearing Loss, but also by considering Sections 43 and 90. It must be remembered that the overall test for compensability is whether the injury arose out of and in the course of employment. Policy EN-12: Hearing Loss structures this analysis but it cannot contradict the general test under the Act. Based on the evidence on record, it could not be concluded that this was a case that fit neatly within the parameters of Policy EN-12: Hearing Loss, at least not at the time the decision was made. 59. I also note that Section 90(3) of the Act, Industrial Disease, states: Where a worker referred to in subsection (1) at or immediately before the date of the disablement was employed in a prescribed process and the disease contracted is the prescribed disease associated with the description of the process, the disease shall be considered to have been due to the nature of that employment unless the contrary is proved. 60. This provision assumes that the exposure and the condition are both contained in the regulations and are associated with each other to create a presumptive entitlement. The Commission had to consider whether the worker s exposure and condition fit the presumptive provisions of the Act and the regulations. However, Section 90(4) also confirms that; Nothing in this section affects the right of a worker to compensation in respect of a disease to which this section does not apply where the disease is the result of an injury in respect of which he or she is entitled to compensation under this Act. 61. This confirms that the disease - assuming it is a disease - may still be compensable if it fits the general test for compensability under the Act, despite the fact that it does not fall under the prescribed processes in the regulations. This confirms that Section 43, and possibly Section 61, may be applicable if the case does not neatly fit the confines of a valid policy. 62. Overall, Section 90 of the Act does recognize a responsibility to accept a disease, due to the nature of the employment at, or immediately before the date of disablement. The management of this matter by the Commission to date shows it has not considered the evidence beyond the fact the worker s audiology reports in 2009 did not indicate the 15

16 required 25 decibel loss as per policy and the latter report of June, 2012 was completed outside the five-year time limit. I find the Commission has not given any consideration to the general entitlement provisions under the Act and I note Section 19(4) in particular. 63. In looking at Section 19(4) of the Act, it states, The decisions of the commission shall be upon the real merits and justice of the case and it is not bound to follow strict legal precedent. There is no demonstration in the decision of the Commission that this section has been considered. Similarly, Policy EN-12: Hearing Loss provides for Exceptional Circumstances as follows: In cases where the individual circumstances of a case are such that the provisions of this policy cannot be applied or to do so would result in an unfair or unintended result, the Commission will decide the case based on its individual merits and justice. Such a decision will be considered for that specific case only and will not be precedent setting. 64. Further, the totality of the relevant evidence must be weighed in accordance with Section 60(1) on the balance of probabilities. The Commission has also failed to engage in the correct analysis of the evidence. Section 60(1) states; An issue related to a worker's entitlement to compensation shall be decided on a balance of probabilities and, where the evidence on each side of an issue is equally balanced, the issue shall be decided in favour of the worker. 65. Before concluding, I must acknowledge that the Commission s decision rests heavily on the finding that the worker does not meet the recognized levels of hearing loss under the Policy, or at least did not meet them at the required time. This perhaps explains why much of the worker s argument about the cause of the hearing loss was not dealt with extensively. However, I have indicated that I do not place great weight on the findings with respect to the worker s levels because the reasoning refused to engage the worker s present (i.e. year 2012 and post-) level of hearing loss in the context of possible chemical exposures. In fact, the decision only dealt with the levels as of 2009, and I do not think this analysis was arrived at through a careful analysis of the evidence. Not only was there the obvious error with respect to the dates of the audiograms, there was no explanation of the averaging which the worker contends was incorrect anyway. The findings on the levels are affected by the facts underlying the opinion, to use the language of Policy EN-20: Weighing Evidence, and the calculation issues must be revisited as well, because I do not accept the existing findings on the levels are reliable. 66. To conclude, the Commission s decision does not demonstrate an awareness of the directions required by Policy EN-12: Hearing Loss, or how the Policy relates to the Act, and particularly Sections 19(4), 43, 90, or 60(1). As a result, the Commission s decision is in error. It must provide a new decision in accordance with the directions provided at the outset of the Analysis section, in paragraph 48 of this decision. 16

17 Decision 67. The Commission s decision of January 31, 2014, is set aside as it is not in accordance with the Act, regulations, and policy. 68. The claim is referred to the Commission for the appropriate considerations and adjudication in accordance with the complete direction of Policy EN-12: Hearing Loss and Sections 43, 19(4) and 60(1). The Commission is directed to further assess the claim with consideration given to the direction as provided in this Decision. Referred to WHSCC Marlene Hickey Chief Review Commissioner November 18, 2014 Date 17