SUMMARY DECISION NO. 1018/97 Permanent impairment (degree of impairment) (hearing loss). The worker appealed a decision of the Senior NEL Adjudicator granting a 5% NEL award for hearing loss and a 2% award for tinnitus. An audiogram in 1994 showed a total hearing loss at four frequencies of 145 decibels, producing an average of 35 decibels. The worker was 63 years old in 1994. Applying the presbycusis factor, the hearing loss was 139 decibels, rounded up to 140 decibels, still producing an average of 35 decibels. Applying the AMA Guides, this resulted in a 15% hearing impairment, which corresponds to a 5% impairment of the whole person. The award for tinnitus was also correctly calculated. The appeal was dismissed. [6 pages] PANEL: Keil; Anderson; Young DATE: 29/09/97
WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 1018/97 [1] This appeal was heard in Toronto on September 18, 1997, by a Tribunal Panel consisting of: M.F. Keil : Vice-Chair, B.M. Young: Member representative of employers, J. Anderson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker is appealing the decision of Senior NEL Adjudicator K. Kersey, dated November 5, 1996. That decision confirmed the worker's Non-Economic Loss (NEL) award of 5% for his noise induced hearing loss and 2% for tinnitus. [3] The appeal was considered on the basis of written submissions by the worker. Although the employer was notified of the proceedings, it chose not to participate. THE EVIDENCE [4] The Panel had before it as exhibits the Case Record and one Addendum prepared by Tribunal Counsel Office. The worker's submissions were contained on the Case Record and were dated December 11, 1996. THE ISSUES [5] The Panel must determine whether the worker's permanent impairment for his noise induced hearing loss and tinnitus have been correctly calculated. THE PANEL S REASONS (i) Background [6] The worker was born in 1931 and served in the army for three years, starting in 1953. From 1963 until 1986, he worked for the accident employer as a millman. In this capacity, he would work on the milling machines which crushed, ground and fed rubber throughout the production processes. There is general agreement that the worker was exposed to hazardous levels of noise during his employment and that he did not wear hearing protection. [7] In 1986, the plant closed and the worker took early retirement; he has not worked since that time. The worker had an audiogram done in August of 1994 which demonstrated a bilateral hearing loss of 145 db. (the sum of the loss at four frequencies). This would produce an averaged hearing loss of 35 db. Dr. W. Vankerk, an ear, nose and throat specialist, wrote in his report of October 3, 1994, that
Page: 2 Decision No. 1018/97 the worker had a bilateral sensorineural hearing loss, maximum in the high frequencies, in keeping with noise damage. The worker was also identified as having bilateral tinnitus. [8] The worker's claim for noise induced hearing loss and tinnitus was accepted by the Board and he was seen for a NEL assessment by Dr. J. McLean on September 8, 1995. The specialist reported that the worker's audiogram showed a nerve loss in both ears, down in the high frequencies, probably related to noise trauma, there may be a mild loss due to presbycusis. [9] In calculating the worker's NEL award, the oldest audiogram on file was used, the one from August of 1994, as this was the one closest to the time of exposure to the workplace noise. In 1994, the worker was 63 years of age. Accordingly, in keeping with Board policy,.5 db was subtracted for each year over 60 from each frequency measured. As there were four frequencies and the worker was three years over 60, the total subtracted was 6 (3 x 4 x.5). This resulted in a hearing loss of 139, rounded up to 140 (or an averaged hearing loss of 35 db). The worker's hearing loss was calculated to be 5% and he was awarded 2% for tinnitus. His total NEL award was found to be 7%. [10] Dr. Vankerk last wrote to the Board on December 16, 1996, to advise that the worker was having ongoing problems with skin intolerance to the material of his hearing aids. The doctor suggested that the Board authorize the use of the Dahlberg hearing aid, as that was the only one to which the worker did not react adversely. (ii) Relevant law and policy [11] The relevant section of the current Workers' Compensation Act dealing with NEL awards states as follows: 42(1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act. (2) The compensation for a worker's non-economic loss from an injury is determined by multiplying, (a) the percentage of the worker's permanent impairment arising from the injury as determined by the Board; and (b) $45,000,. (i) (ii) plus $1,000 for each year of age of the worker under forty-five years at the time of the injury, to a maximum of $20,000, or minus $1,000 for each year of age of the worker over forty-five years at the time of the injury, to a maximum of $20,000. (5) The Board shall determine in accordance with the prescribed rating schedule and having regard to medical assessments conducted under this section the degree of a worker's permanent impairment expressed as a percentage of total permanent impairment. [12] Board Operational Policy Document #04-03-10, entitled Noise Induced Hearing Loss, On/After January 2, 1990, states that workers with occupational noise induced hearing loss that is sufficient to cause a hearing impairment may be entitled to benefits when there is a hearing loss of 22.5 2
Page: 3 Decision No. 1018/97 db in each ear when the hearing loss in the four speech frequencies (500, 1000, 2000, and 300 Hertz) are averaged. The Board accepts the following as persuasive evidence of work-relatedness in claims for sensorineural hearing loss: continuous exposure to 90 db(a) of noise for 8 hours per day, for a minimum of 5 years, or the equivalent; and a pattern of hearing loss consistent with noise induced sensorineural hearing loss. [13] The policy goes on to note that a presbycusis (aging) factor of 0.5 db is deducted for the measured hearing loss (averaged over the 500, 1000, 2000, and 3000 Hz frequencies) for every year the worker is over the age of 60 at the time of the audiogram. The hearing loss that remains after the presbycusis adjustment is then used to determine entitlement to benefits. [14] Entitlement criteria for post-1990 tinnitus claims are set out in Board Operational Policy Document #04-03-11. It states that the Board accepts entitlement for occupational noise induced tinnitus if it is the result of exposure to hazardous noise through employment in Ontario and if all the following circumstances exist: there is an accepted claim for occupational noise-induced hearing loss and there is a clear and adequate history of 2 or more years of continuous and severe tinnitus and the condition has been confirmed by a specialist with facilities for testing tinnitus. [15] The policy goes on to state that permanent impairment from tinnitus is assessed using the rating schedule prescribed in Regulation 1102, section 15(1), R.R.O. 1990. According to the prescribed rating schedule, tinnitus is not measurable, and therefore, the physician should assign a degree of impairment that is based on severity and importance, and is consistent with established values. A permanent impairment of 2% for tinnitus is judged to be consistent with established values. Permanent impairment ratings for NIHL and tinnitus are added using the AMA combined values chart. The policy concludes by advising that claims not meeting the above circumstances will be adjudicated on the real merits and justice of the case. (iii) The worker's submissions [16] The worker submitted that he should be compensated for the pain and suffering he incurred from the earaches, infections and constant itching that has resulted from his wearing hearing aids. He did not believe his award accurately reflected his condition. (iv) The Panel's findings [17] In calculating NEL permanent impairment awards for accidents occurring on or after January of 1990, the Board is obliged to follow the American Medical Association s Guides to the Evaluation of Permanent Impairment, Third Edition (Revised). At page 175, under the section entitled Objective Techniques to Determine Hearing Impairment, the Guides note that one adds the hearing loss in each ear at the four measured frequencies and then one proceeds to Table 3: Computation of Binaural 3
Page: 4 Decision No. 1018/97 Hearing Impairment. At this point one sees how the intersection of the two measurements is tabulated. In this case, when one intersects 140 and 140 (the worker's hearing figures), the table produces a 15% hearing impairment. One then turns to Table 4: The Relationship of Binaural Hearing Impairment to Impairment of the Whole Person. In this table, a 15% hearing impairment produces a 5% impairment of the whole person. [18] This is, in fact, the award which the worker received. The calculation for arriving at this amount is essentially a mathematical one and the Panel can discover no error in the process. The tables from the Guides have been correctly followed, as has the Board policy on presbycusis deduction. The worker also receives a 2% award for tinnitus as set out in Board policy. [19] The Panel notes the worker's concerns regarding ear infections and other side effects from the wearing of hearing aids. In this regard, the Panel would observe that the most recent report from Dr. Vankerk indicated that the specialist had found a hearing aid to which the worker did not have an adverse reaction. Accordingly, we would expect that the Board has authorized payment for this hearing aid and that the problems have been resolved. Therefore, there is no medical evidence to support a conclusion that the worker's adverse reaction to his hearing aids is permanent in nature. Consequently, at this time, there is no suggestion that the worker's permanent impairment resulting from his noise induced hearing loss and tinnitus is greater than that reflected by his 7% NEL award. 4
Page: 5 Decision No. 1018/97 THE DECISION [20] The appeal is denied. DATED: September 29, 1997 SIGNED: M.F. Keil, B.M. Young, J. Anderson 5