Workplace Health, Safety & Compensation Review Division WHSCRD Case No: 13220-10 WHSCC Claim No: 649960 Decision Number: 14074 Lloyd Piercey Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Glynmill Inn in Corner Brook, NL on March 6, 2014. The worker participated in the hearing via teleconference and was represented by Mel Strong, Appeals Officer with the Government Members Office, who also participated via teleconference. 2. Neither the employer nor the Commission participated in the hearing process. Introduction 3. On June 3, 2013 the worker had an Audiogram completed prior to applying to the Commission for industrial hearing loss. 4. On June 4, 2013 the worker submitted a Form 6HL, Worker s Report of Hearing Loss. At that time, he provided the June 3, 2013 Audiogram, as well as information relative to his work history. 5. On June 17, 2013 the Intake Adjudicator advised the worker, in written correspondence, that he did not meet the requirements to be eligible for industrial hearing loss benefits. 6. The worker appealed this decision and, on September 12, 2013, the Internal Review Specialist rendered a decision that upheld the June 17, 2013 decision by the Intake Adjudicator. 7. The worker appealed the September 12, 2013 decision and it is that decision that is before the Review Division. 1
Issue 8. The worker seeks a review of an Internal Review decision of the Commission dated September 12, 2013. The worker is requesting that I find the Commission erred in denying his claim for industrial hearing loss and overturn the September 12, 2013 decision. Outcome 9. The Commission s decision is set aside. The Commission is directed to examine the data contained in the June 3, 2013 Audiogram for its relevance to the claim. As a part of the decision making process, the Commission will seek an opinion from its Audiology Consultant on the merits of the June 3, 2013 Audiogram. 10. Furthermore, the Commission is directed to obtain noise levels from the worker s place of employment to determine the effect it might have had on the worker s hearing loss. I emphasize that this task is not to be deferred to the worker. After all available information has been vetted for its relevance, if the Commission should find a timing issue still defeats the claim, as per Policy EN-12, Hearing Loss, it must provide an explanation, including reasons as to why the claim, upon examination of the June 3, 2013 Audiogram, and the workplace noise level readings, would or would not merit acceptance, depending on the weight of the evidence. Legislation and Policy 11. 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 IV. 2
(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 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 (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) make a decision which is in accordance with this Act, regulations and policy; or 3
(b) 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. 12. Also relevant and considered are Sections 2(1)(o), 19(1) and 60(1) of the Act, along with Policy EN-12: Hearing Loss and Policy EN-20: Weighing Evidence. Relevant Submissions and Positions 13. Mr. Strong noted that the worker has worked for over 40 years, mostly in the Province of Newfoundland and Labrador, in the construction industry. He stated that the worker, now nearly 63 years of age, began work in 1972 and continues at present to be employed. 14. Mr. Strong stated that the file information indicates that the worker had an Audiogram completed in 1997 and, again, in June, 2013. 15. Mr. Strong noted that it was the Commission s position that the worker did not meet the criteria set out in Policy EN-12: Hearing Loss, because he did not have constant or intermittent exposure to workplace noise for the required periods. Mr. Strong contended that the worker s employment history would indicate otherwise. 16. Mr. Strong submitted that work available in construction was seasonal and the worker went where the jobs were available and because of this, he contended that the policy works against seasonal workers, since they cannot argue constant and continuous exposure to workplace noise. 17. Mr. Strong is of the opinion that the worker s claim should be approved under an exceptional circumstance consideration. 18. The Internal Review Specialist noted that Policy EN-12: Hearing Loss requires that the worker would be exposed to workplace noise and the exposure would 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, b) intermittent noise exposure for a five year period at eight hours per day at 85dB(A) 19. The Internal Review Specialist noted the worker s employment history, as outlined in the Form 6HL, Worker s Report of Hearing Loss, from the period beginning July 3, 2006 to September 14, 2012. 20. The Internal Review Specialist submitted that the history of employment for the worker does not indicate continuous noise exposure for two years or more, at eight hours per day, at 85 decibels. 21. The Internal Review Specialist further submitted, because of the seasonal nature of the worker s employment history, the worker was not exposed, intermittently, to noise in the workplace for a five-year period, at eight hours per day, at 85 decibels. 4
22. The Internal Review Specialist concurred with the decision by the Intake Adjudicator that the file evidence would support that the worker did not meet the criteria for industrial hearing loss as outlined in Policy EN-12: Hearing Loss, based on his work history. Analysis 23. It is the position of the worker that his hearing loss has been caused by the hazardous noise environment in which he worked, as a Welder, for over 40 years. 24. The Commission submitted that the worker s employment history does not meet the criteria set out in Policy EN-12: Hearing Loss, for entitlement to industrial hearing loss, particularly in that, he did not have either continuous or intermittent exposure to noise levels that is required by this policy for the necessary periods of time. 25. I note that Procedure 21.01 states, in part: 21.01 - Hearing Loss Claim Adjudication Process When a claim is received for noise-induced hearing loss, the decision maker will obtain a full work history from the worker. Noise level readings will be obtained from the employer(s), where available. All available audiograms should be obtained. Where the hearing loss claim includes tinnitus, the decision maker should ensure that the audiological assessment has confirmed the presence of tinnitus, including the severity, laterality (unilateral versus bilateral), and persistence (intermittent versus constant). When considering a claim for hearing loss, or for a hearing loss impairment award, an audiological assessment performed by an audiologist will be required, accompanied by the Commission s Audiologist Reporting Form and an audiogram. Where a worker has left the workforce, or is no longer exposed to hazardous workplace noise, an exit audiogram performed by the employer will also be considered acceptable within the timeframe outlined in Policy EN-12. When all available information has been received, the decision maker will refer the claim to a Medical Officer. Within 10 days of receiving the referral, the Medical Officer will determine the average hearing loss based on the compensable frequencies outlined in Policy EN-12 unless, upon review of the documentation, the cause of a worker s hearing loss is not clearly evident. In such cases, a report from an E.N.T. specialist may be required before the claim can be adjudicated. The worker will have to arrange the necessary referral through his/her family doctor. 5
Once all available information has been reviewed, at the discretion of the Medical Officer, the file may be referred to the Commission s Consulting Audiologist for further review. The opinion of the Medical Officer will be referred back to the decision maker who will render a decision on entitlement and send written communication to the worker within 10 days. 26. The file information indicates that the worker had an Audiogram completed on November 10, 1997. The worker subsequently submitted a claim to WHSCC for noise induced hearing loss. A memo from the Commission s Medical Consultant, dated October 9, 1998 noted she had reviewed the Audiogram and the data indicated bilateral hearing losses of 11.25 decibels. The Medical Officer wrote This degree of hearing loss is below the 35 dba average in both ears that is required to award a PFF rating 27. The file indicates that the Commission s Pension Adjudicator wrote to the worker on October 26, 1998 noting that the worker s claim was reviewed for industrial deafness in consultation with its Medical Officer. It was stated that the hearing tests showed that the average loss in each ear was 11.25 decibels which was below the 35 decibel average required in each ear to award a PFI rating. The Pensions Adjudicator further stated, in part: Also, in order for the Commission to approve the cost of hearing aid(s), the average loss in each ear would have to be at least 25 decibels. As your hearing loss has not reached these frequencies, we cannot accept any costs on your file 28. The worker then had another Audiogram completed on June 3, 2013 and submitted it to the Commission, along with a Form 6HL, Worker s Report of Hearing Loss, on June 4, 2013, seeking entitlement to industrial hearing loss benefits. 29. The Claim Note dated June 17, 2013 noted that the worker s claim for industrial hearing loss was denied. It stated: Worker submitted claim for reassessment, previously reviewed in 1998 but below minimum requirements for compensable benefits. Worker now submitting claim but in the 5 years prior to application hasn t demonstrated 5 years of intermittent exposure in NL or 2 years continuous exposure in NL. Letter completed/sent. 30. The letter to the worker from the Intake Adjudicator, dated June 17, 2013, stated, in part: having reviewed your work history as you have provided I note you have not met the requirements for further review or consideration at this time. Your work history does not demonstrate in the last 5 years (prior to your date of application, June 2013) either 2 years of continuous noise exposure (two years of employment with 8 hours per day of exposure), or 5 years of intermittent noise exposure (5 years of employment with 8 hours per day of exposure) in this province. 6
Based on the information presently on file, the Commission is unable to accept that your hearing loss problems are related to your employment within the province on [sic] Newfoundland and Labrador. 31. In my review of the file, I find that, unlike in the adjudication of the worker s 1997 claim for industrial hearing loss, when the Commission s Medical Officer did review the file, particularly the November 10, 1997 Audiogram, the most recent application from the worker has not been given due process. I particularly find that the Commission has not complied with its own procedures and guidelines in that, the following was not done: Noise reading levels were not obtained from the workplace The claim was not referred to a Medical Officer for an opinion The file and relevant documents, particularly the most recent Audiogram, dated June 3, 2013, was not referred to the Commission s Audiology Consultant for analysis and relevance to this claim. 32. Relative to the actual or estimated noise level readings from the workplace, I note that the Commission will usually defer this responsibility to the worker. However, it is my finding that the Commission has the obligation not only to adjudicate a claim, but in doing so, ensure that an appropriate level of inquiry has been carried out. The file information suggests that the Commission has been remiss in this aspect of the decision making process. I refer to the following and find it applicable and appropriate to this claim: Iron Ore Company of Canada v. Newfoundland & Labrador (Workplace Health, Safety and Compensation Review Division) et al 2011 NLTD(G) 103 (CanLII) [71] This process is unlike that of a court where the judicial adjudicator undertakes no independent investigation but relies solely on the parties to provide the evidentiary base for making the decision. The active role undertaken by Commission adjudicators is consistent with one of the underlying purposes of the Act, which is to provide an efficient and inexpensive method of resolving compensation claims for workers who may not be able to bear the cost of undertaking their own claim investigation and submission. [72] In undertaking such an investigation, the Commission staff must of course be fair to the claimant as well as to their duty to protect the public purse from false claims. That requires them to follow up, once they have determined that certain information is relevant and have asked for it, to ensure that that information is provided. In the circumstances of this case, therefore, having decided to obtain further information from Mr. Hammond s treating physicians, it does not lie in IOC s mouth to say that the burden falls completely on Mr. Hammond to ensure that information was provided. He 7
was entitled to assume that the Commission s investigation into his condition was being properly completed. (Emphasis added) 33. The worker in this case is still working. This means that, when he submitted the Audiogram dated June 3, 2013, he satisfied the time requirement to produce an audiological assessment. He provided one while he was still in the workplace, so he was not outside the time requirement noted in Section 4(a) of Policy EN-12: Hearing Loss. Section 4(a) also requires that the requirements of Section 2(a) or (b) must be satisfied, and this is the core of the issue in this case. 34. Section 2(a) states that noise levels will be considered hazardous when there is, 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). 35. Section 2(b), which is an alternate to the section above, states that noise levels will be considered hazardous when there is, 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). 36. The Commission s conclusion was that the worker did not satisfy either 2(a) or 2(b). It noted the worker s position that he had been working throughout his lengthy career in noisy environments, either on a seasonal or part time basis. It acknowledged that the worker s last four jobs in the Province were between 2006 and 2013. However, it then concluded that the worker had neither continuous noise exposure for two years, nor had intermittent noise exposure for a five year period. The Internal Review Specialist confirms the reasoning of the Intake Adjudicator that the five years intermittent exposure must take place in the last five years immediately prior to the application. 37. There is no requirement that the exposure must take place within the last five years prior to the application. This would deprive the provision of any meaning in the cases of most longterm workers. I also do not see where such a requirement exists in Policy EN-12: Hearing Loss. The Commission seems to have been influenced by the time limits required for the production of an Audiogram in Section 4 of the Policy, which requires that an Audiogram be provided as of the date of termination of exposure to hazardous noise, or, failing that, within five years of the last exposure. However, this requirement does not apply to this case because the worker is still working. Therefore, the requirements of Section 4 do not affect the worker s claim, and it is difficult to see how they could apply because the Commission had no basis to make an assumption that the worker is still not exposed to hazardous noise. That could not have been established without reviewing the evidence. However, the main point is that nothing in Section 4 imposes a requirement that only the last 5 years worth of employment exposure can be considered under Section 2. This alone requires that the matter be remitted to the Commission for further review. 38. In addition, the Commission seems to be suggesting that the worker must have been continuously employed for that full five years. The fact that the worker provided a work history that showed him to be employed for 44 of the last 60 months seems to have been considered fatal to his claim. The Commission never references the decibel-level requirement, so I presume it was the combined length of employment within the last five 8
years that influenced its decision. However, I note that, since the date of the last Audiogram in 1997, the worker had at least a further 16 months worth of employment within the Province, which constitutes five years of potential noise exposure, and on an intermittent basis. I cannot see where any consideration was given to this fact. I also note that the Commission s reasons are so brief and provide so little explanation that the basis of its decision is not transparent, and this alone would justify setting the decision aside. 39. In summary, the Commission s interpretation of Policy EN-12: Hearing Loss cannot be supported. The evidence does not support an assumption that the worker does not have at least five years worth of exposure to hazardous noise in the Province, on an intermittent basis. The question of whether the noise level was hazardous is for the Commission to determine on a review of all the evidence, in accordance with the Policy, but it must at least review the evidence. I cannot determine any basis for the Commission s apparent conclusion that the worker did not meet the time requirements for potential exposure, and it was an error for the Commission to deny his claim on that basis alone, which is what they apparently did. 40. I find it particularly significant that the June 3, 2013 Audiogram is not given any weight at all in the Commission s decision to deny the claim. Furthermore, I find to rigidly apply a timeframe has, in this instance, prevented the worker from having his claim reviewed on the real merits and justice of the case. The lack of analysis of the worker s June 3, 2013 Audiogram has not afforded the worker the opportunity to have his claim adjudicated as would be expected under Section 60(1) of the Act. I find the Commission should have, at least, considered the contents of the Audiogram in order to determine if the minimal hearing loss levels had been met. 41. I find it would have been within reason for the worker to have expected the Commission to refer the file, particularly the Audiogram of June 3, 2013, to its Audiology Consultant for further examination of the evidence, notwithstanding the application of the five-year and two-year timeframes the Commission considered relevant to this claim. I acknowledge that it may not be inappropriate to rely on the timeframes in many cases, or to even consider whether the individual claim has features which make the application of the time limit inappropriate. However, there has to be at least some weighing of the potential merits of the claim against the technical requirements of the policy. I find that this is particularly important in this case since, as far back as February 17, 1998, the attending Ear, Nose and Throat (ENT) Specialist wrote, after examining the worker and reviewing a CT scan, that At this point, it seems clear that the cause of his problem is noise induced hearing loss. One could reasonably conclude that nearly 16 years later, with the worker having continued to work in the same types of environments, his exposure to workplace noise might have contributed to his hearing loss. This question should have been explored further. 42. In summary, I find the following factors to be significant to this claim: I find it was in error to deny the worker s claim solely based on the finding that he did not meet the required time of exposure under Policy EN-12: Hearing Loss. Further, to disregard the actual claim evidence in this fashion was not conducive to the direction in Section 19(4) of the Act which states that each case will be judged on its own merits. 9
Section 60 of the Act, and Policy EN-20: Weighing Evidence, requires that all evidence must be weighed in the decision making process. In my review of the file, I cannot find evidence to support that the Commission has vetted the entire file for relevant information. In failing to do so, it has prejudiced the worker s right to a fair adjudication of his claim. The Commission is in violation of its own guidelines, particularly Procedure 21.01, in not engaging its Audiology Consultant in the process and seeking an opinion on the June 3, 2013 Audiogram. The Commission, in its failure to analyze and give weight to the June 3, 2013 Audiogram, has prejudiced the worker s ability to pursue a reasonable appeal. In this instance, I find the Commission has not offered the worker a rationale as to why the June 3, 2013 Audiogram was of little value and given no weight in the Commission s decision to deny the claim. 43. I find the following passage from Porter v. Workers' Compensation Review Division (Nfld.), 1997 CanLII to be applicable and appropriate to this file: [39] It seems to me that, implicit in the direction that the Commission decide in accordance with the Act, Regulations and policy, is the requirement that, on review of a Commission decision, the review commissioner must consider all the relevant evidence placed before him or her, and must be satisfied that, in reaching his determination, the Commission had available to it, and at least considered, such relevant evidence. While it may well be within the Commission's authority to reject (e.g.) medical evidence, a fair determination as contemplated by the Act requires that the evidence be carefully considered and assessed in accordance with s. 60(1). [40] The Commissioner's conclusion cannot be supported. By failing to satisfy himself that the Commission considered all relevant evidence - even if that meant referring the matter back to the Commission - the Commissioner failed to complete the task entrusted to him. He was reviewing a decision made on incomplete information and compounded the difficulties by drawing his own conclusions which misstated the evidence before him. (Emphasis mine) Decision 44. The Commission s decision is set aside. The Commission is directed to examine the data contained in the June 3, 2013 Audiogram for its relevance to the claim. As a part of the decision making process, the Commission will seek an opinion from its Audiology Consultant on the merits of the June 3, 2013 Audiogram. 10
45. Furthermore, the Commission is directed to obtain noise levels from the worker s place of employment to determine the effect it might have had on the worker s hearing loss. I emphasize that this task is not to be deferred to the worker. After all available information has been vetted for its relevance, if the Commission should find a timing issue still defeats the claim, as per Policy EN-12, Hearing Loss, it must provide an explanation, including reasons as to why the claim, upon examination of the June 3, 2013 Audiogram, and the workplace noise level readings, would or would not merit acceptance, depending on the weight of the evidence. Referred to WHSCC Lloyd Piercey Review Commissioner March 28, 2014 Date 11