WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1949/06 BEFORE: J.P. Moore : Vice-Chair HEARING: October 12, 2006 at Toronto Written DATE OF DECISION: October 19, 2006 NEUTRAL CITATION: 2006 ONWSIAT 2345 DECISION UNDER APPEAL: WSIB ARO decision dated November 29, 2005 APPEARANCES: For the worker: For the employer: Interpreter: M. Blythe, a Consultant Not participating None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2
Decision No. 1949/06 REASONS (i) Introduction [1] In December 2003, the worker filed a claim for benefits for hearing loss that he attributed to workplace noise exposure. The Board accepted that the worker likely had exposure to hazardous noise in the course of his employment as a mechanic. However, the Board concluded that the nature of the worker s hearing loss made it unlikely that it was, in fact, noise-related. [2] The worker objected to that decision. His objection was denied by the ARO in the decision under appeal. The worker now appeals to the Tribunal. (ii) The issue [3] The issue in this appeal is whether the worker has initial entitlement to benefits for noiseinduced hearing loss ( NIHL ). (iii) The decision [4] I am persuaded by the evidence and submissions presented to me that the worker does not have NIHL and is not, therefore, entitled to benefits out of the Insurance Plan. (iv) Analysis [5] In the decision under appeal, the ARO denied the worker initial entitlement for NIHL on the basis of a medical opinion from a Board Unit Medical Consultant, Dr. Walker. In a memorandum dated March 5, 2004, Dr. Walker noted the results of audiometric tests done on October 30, 2003 and December 15, 2003. He concluded that the audiograms were equally atypical for NIHL. The ARO relied on that opinion in denying entitlement. The ARO also noted indications in the worker s medical history of prior audiological problems associated with chronic middle ear infection. [6] The submissions filed by the worker s representative, Mr. Blythe, in support of the worker s appeal, relied heavily on a medical report prepared by R. Wong, an occupational physician working with Occupational Health Clinics for Ontario Workers Inc. In a report dated July 13, 2005, Dr. Wong expressed the opinion that the earlier of the two audiograms cited by Dr. Walker was likely inaccurate. He further indicated that the second of the two audiograms, done on December 15, 2003, likely better reflected the nature of the worker s hearing impairment. In the view of Dr. Wong, that test showed, in the right ear, the pattern of hearing loss typical for NIHL. He further suggested that, although the findings in the left ear appeared not to be typical for NIHL, the typical pattern can be confounded where there has been very intense and severe noise exposure. Dr. Wong also noted the apparent absence of a history of other causes for the worker s significant hearing loss. [7] The materials before me included a Discussion Paper prepared for the Tribunal by Dr. J. Rutka in February 2003. Dr. Rutka is an associate professor of otolaryngology at the University of Toronto. According to that Paper, a typical presentation of NIHL will include a notch or dip in the degree of hearing loss at the 4000 Hz frequency level. Dr. Wong s opinion addressed this phenomenon and noted that the typical notch was not present in the
Page: 2 Decision No. 1949/06 audiogram done on October 30, 2003 but appeared to be present in one ear in the audiogram done on December 15, 2003. Dr. Wong concluded that the October 1993 audiogram was likely unreliable and that the December 2003 audiogram suggested bilateral NIHL. [8] As I noted above, the Board s Unit Medical Consultant took a different view and found that neither audiogram presented a pattern typical of NIHL. [9] It could be said, therefore, that the audiogram evidence is equivocal with respect to the question of whether the worker, in fact, has NIHL. What tips the balance, in my opinion, against a finding that the worker has NIHL is that the worker was seen and treated by two different otolaryngologists, neither of whom suggested that the worker had NIHL. In April 1999 he saw Dr. A. Shuren. In October 2003, he saw Dr. S. Oleksiuk. Each of those physicians assessed the worker s hearing loss and came to the conclusion that the worker was experiencing bilateral sensori-neural hearing loss. What is significant is that, notwithstanding the fact that the worker apparently worked in a noisy environment, there is no indication in their reports of a diagnosis of NIHL. And neither of these specialists included an opinion in their reports indicating that the worker s hearing loss was related to occupational noise exposure. [10] I note, in particular, that Dr. Oleksiuk, in a report dated October 30, 2003, stated explicitly that the worker was employed in a very noise work environment. Nonetheless, Dr. Oleksiuk declined to provide an opinion that the worker s hearing loss was related to noise exposure, even though the worker apparently asked the doctor to do so. In my view, that is a very significant evidentiary point and one that appears to support Dr. Morgan s view that the results of the audiograms done in October and December 2003 were atypical for NIHL. [11] Although Dr. Wong considers the October 2003 audiogram authorized by Dr. Oleksiuk to have been unreliable, the fact is that Dr. Oleksiuk, a specialist in otolaryngology, reviewed the test results, noted the worker s history, and nonetheless provided no opinion supporting the worker s claim that he had occupationally related NIHL. [12] Consequently, the only evidence that stands in support of the worker s claim is the opinion of Dr. Wong, who is not an otolaryngologist, that the findings in one ear in one of two audiograms is consistent with NIHL. On the basis of that limited evidence, Dr. Wong is propelled to the conclusion that the worker s hearing loss is occupationally related. I am not persuaded, however, that Dr. Wong s opinion can stand in the face of the other evidence presented to me. [13] I think it worth noting, in this regard, that, according to a letter written by the worker to the Board on December 15, 2003, the worker used some form of ear protection throughout his employment. According to the worker, he used cotton in the early years of his employment. He further stated that, throughout the 1990s, the employer supplied inner ear plugs and outer ear muffs starting in approximately 2001. So it is questionable, in my view, that the worker had full exposure to the noise in his environment throughout the full period of his employment. [14] However, even if one accepts that the worker did have sufficient exposure to noise to meet the Board s threshold test, I am persuaded on a balance of probabilities by the evidence presented to me that the nature of the worker s hearing loss is not typical of NIHL, and that there
Page: 3 Decision No. 1949/06 is insufficient medical evidence to support a contrary conclusion. On the basis of that finding I agree with the Board that the worker s hearing loss is not likely related to his employment. [15] For these reasons, I deny the worker s appeal.
Page: 4 Decision No. 1949/06 DISPOSITION [16] The worker s appeal is denied. DATED: October 19, 2006 SIGNED: J.P. Moore