NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participant entitled to respond to the appeal: Workers Compensation Board of Nova Scotia (Board) S.251 REFERRAL TO HEARING OFFICER Referral to: Representative: Form of Appeal: WCB Claim No.: Peter Egan, Hearing Officer [X] Written Submissions [X] Date of Decision: July 24, 2009 Decision Summary: The appeal of the April 28, 2009 Board Hearing Officer decision is referred back to the Hearing Officer for reconsideration, according to the reasons of Appeal Commissioner Glen Johnson.
2 WCAT # 2009-385- RTH CLAIM HISTORY AND APPEAL PROCEEDINGS: This is an appeal from an April 28, 2008 Hearing Officer decision. The Hearing Officer determined that the Worker s claim for occupational noise induced hearing loss was barred by operation of section 83 (6) of the Workers Compensation Act, S.N.S. 1994-95, c. 10, as amended [the Act ]. In particular, the Hearing Officer determined that the claim for occupational noise induced hearing loss would have been triggered in May 1998, and therefore the Worker s claim was filed out of time. Audiogram tests were performed respecting the Worker in May 1998, May 2001, January 21, 2004, and January 9, 2009. The Worker filed a claim form dated January 11, 2009 with the Board respecting occupational noise induced hearing loss, which was received at the Board on January 15, 2009. A March 13, 2009 Benefits Administrator decision denied the Worker s claim for occupational noise induced hearing loss. The Benefits Administrator found that the Worker was aware that he suffered from hearing loss caused by occupational noise since 1998, and therefore his claim was filed out of time pursuant to section 83 of the Act. The Worker appealed the Benefits Administrator decision by means of a Notice of Appeal to Hearing Officer dated April 1, 2009. That appeal led to the April 28, 2009 Hearing Officer decision which forms the subject matter of this appeal. This appeal was commenced by the Workers Representative s filing of a Notice of Appeal dated May 27, 2009 with the Workers Compensation Appeals Tribunal [the Tribunal ]. This appeal proceeded by way of written submissions. The Workers Representative filed submissions dated June 23, 2009. No other participant filed additional evidence or submissions directly with the Tribunal in this appeal. ISSUES AND OUTCOME: At issue is whether the Worker s claim for occupational noise induced hearing loss is barred by operation of section 83 of the Act. In addition, issues flowing therefrom involve whether the Worker is entitled to medical aid and/or a permanent impairment benefit in connection with occupational noise induced hearing loss. This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.
3 This matter is referred to the Hearing Officer for reconsideration, for the reasons set out below. In particular, the referral would provide an opportunity for the Hearing Officer to consider (and procure medical opinion evidence concerning) the effect of the difference between air conduction and bone conduction testing revealed in the May 14, 2001 audiogram results; this difference could impact on whether the Worker was entitled to workers compensation benefits in 2001, and could consequently impact on when time began to run concerning the limitation period found in section 83 of the Act. AUTHORITY FOR REFERRAL: The Act applies to this appeal. Subsection 251(1) of the Act permits this Tribunal to refer appeals back to Board Hearing Officers. The Tribunal may refer an appeal back when the quantity or nature of new or additional evidence, or the disposition of the appeal, merits the referral. A section 251 referral requires a Hearing Officer to reconsider some or all of the issues that have been appealed to the Tribunal. The referral does not decide the issues on appeal. However, it brings the appeal before the Tribunal to an end. If the Hearing Officer's reconsidered decision is appealed, that appeal shall be heard in priority to any appeal commenced after the date of the referral of the first appeal back to the Hearing Officer. REASONS FOR REFERRAL: I have reviewed the materials in the Board and Tribunal files. I will set out only those portions of the evidence and submissions most relevant to this referral. In the Notice of Appeal to Hearing Officer, the Worker indicated he was not told that it was possible to file a workers compensation claim by the audiologist who performed the 1998, 2001 and 2004 audiograms. In his June 23, 2009 submissions, the Workers Representative argued that there could be no obligation to file a claim unless a compensable claim existed, which in this instance required a level of hearing loss which would entitle the Worker to benefits. The 1998 audiogram results did not reveal a level of hearing loss which entitled the Worker to benefits, and therefore the time for filing a claim did not begin to run in 1998. With respect to the 2001 audiogram results, the Workers Representative accepted that the audiogram results revealed a compensable level of hearing loss. However, he argued that no one advised the Worker in 2001 that workers compensation benefits were available, and therefore the five-year limitation period found in section 83 (6) of the Act should not apply. Briefly, I accept the Workers Representative s argument that the limitation period should not run from the date of audiogram results which do not reveal a level of hearing loss entitling a worker to benefits. I fail to see how the Worker would be under a duty to file a claim forthwith with the Board with respect to occupational noise induced hearing loss, pursuant to section 82 of the Act, when the filing of such a claim would be futile given that the degree of hearing loss would not entitle him to benefits. I also do not see any
4 reasonable basis to prejudice a worker for not filing a futile claim, the filing of which would serve only to impose needless adjudicative costs on the Board and the Accident Fund. On the other hand, the fact that the Worker was unaware of the possibility of filing a workers compensation claim does not prevent the limitation period from running. See, for example, my previous reasoning in Decision 2008-622-AD (January 28, 2009, NSWCAT). Thus, given the Worker s awareness that his hearing loss was work-related, and if the 2001 audiogram results did indeed reveal a level of hearing loss which would entitle the Worker to compensation, I opine the limitation period would indeed run from that time. With respect to the May 14, 2001 audiogram results, I have noted a potentially material difference between the air conduction and the bone conduction audiogram results concerning the right ear. The air conduction results revealed 20 db of hearing loss at 500 MHz, 20 db of hearing loss at 1000 MHz, 15 db at 2000 MHz, and 50 db at 3000 MHz, for total hearing loss in the right ear of 105 MHz. The air conduction results in the left ear (there were no bone conduction results) revealed 90 db of hearing loss at the pertinent megahertz levels. The 2001 air conduction results would not give rise to an entitlement to a permanent medical impairment [ PMI ] rating, though they would apparently entitle the Worker to a hearing aid concerning the right ear, per Policy 1.2.5AR, section 6. On the other hand, when one looks at the bone conduction results from May 14, 2001 respecting the right ear, the level of hearing loss would not have entitled the Worker to benefits. In particular, the bone conduction results reveal 5 db hearing loss at 500 MHz, 10 db at 1000 MHz, 5 db at 2000 MHz and 45 db at 3000 MHz, for a total hearing loss of 65 db. This result would not have entitled the Worker to either a PMI rating or a hearing aid with respect to the right ear. If the bone conduction results govern, then the limitation period would not begin to run on May 14, 2001. The next audiogram results on file date from January 21, 2004, and they show 115 db at the relevant levels in the right ear, and 90 db in the left ear. In 2004, there are only air conduction results shown, and apparently bone conduction testing was not performed. I note that the January 21, 2004 test results were performed within five years of the filing of the Worker s claim on January 15, 2009, though they are well outside the ordinary oneyear limitation period found in section 83 (2) of the Act; in other words, the Board would have to exercise its discretion pursuant to section 83 (5) of the Act to allow the claim to proceed if the limitation period runs from September 21, 2004. Finally, in the January 9, 2009 audiogram results, both the air conduction and the bone conduction results reveal compensable levels of hearing loss in both the right and left ears. Interestingly, the bone conduction results in 2009 show a more severe level of hearing loss than do the air conduction tests, whereas the opposite result revealed itself in 2001.
5 I refer this matter to the Hearing Officer because the difference between the air conduction and bone conduction results in 2001 respecting the right ear was not addressed by any decision-maker or by the Workers Representative. Moreover, this difference was not commented upon by a Board Medical Advisor, particularly whether it would be more appropriate to use the bone conduction or air conduction results from 2001, in connection with the right ear. I reviewed previous Board Medical Advisor references to air conduction and bone conduction testing reproduced in Decision 2007-814-AD (April 23, 2008, NSWCAT) and Decision 2007-753-AD (January 29, 2008, NSWCAT). In this connection, I note that there existed a 15 db difference between air conduction and bone conduction results respecting the right ear at the 500 MHz level in 2001. However, to resolve the instant appeal, it would be more appropriate to procure an opinion from a Board Medical Advisor or an audiologist specific to this matter. In short, I refer this matter to the Hearing Officer for reconsideration, particularly to provide an opportunity for a Board Medical Advisor or an audiologist to consider the difference between the air conduction and bone conduction results respecting the right ear, found in the 2001 audiogram results. The opinion of the Board Medical Advisor could possibly impact on whether the limitation period runs from May 2001, and consequently whether the claim is statute-barred. Further, a referral would provide an opportunity for the Hearing Officer to address any new issues arising from this matter, and provide an opportunity for the Workers Representative to file submissions concerning any issues arising. Nothing in this referral limits the Hearing Officer s discretion to conduct the hearing on reconsideration in the manner he considers appropriate. It is open to the Hearing Officer to refer any or all matters arising from this referral to the first level of Board decisionmaking. CONCLUSION: This matter is referred to the Hearing Officer for reconsideration, for the reasons set out above. In particular, the referral would provide an opportunity for the Hearing Officer to consider (and procure medical opinion evidence concerning) the effect of the difference between air conduction and bone conduction testing revealed in the May 14, 2001 audiogram results; this difference could impact on whether the Worker was entitled to workers compensation benefits in 2001, and could consequently impact on when time began to run concerning the limitation period found in section 83 of the Act. TH DATED AT HALIFAX, NOVA SCOTIA, this 24 DAY OF JULY 2009. Glen Johnson Appeal Commissioner