Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: 16006 Marlene Hickey Chief Review Commissioner The Review Proceedings 1. The review of the worker s application was scheduled for November 30, 2015. The worker indicated she would not be participating in person and requested a review of the decision of WorkplaceNL in her absence. As well, neither WorkplaceNL nor the accident employer participated in the hearing process. 2. The matter was reviewed by way of a paper review conducted in accordance with Section 28(7) of the Workplace, Health Safety and Compensation Act, R.S.N. 1990. Introduction 3. The worker has been employed for nearly 30 years in a fish processing plant. During her employment she was exposed to hazardous noise which she claims has caused significant hearing loss. 4. An audiogram confirms bilateral hearing loss of 40 decibels. WorkplaceNL has determined the pattern of hearing loss, however, is not consistent with noise induced hearing loss and has denied the worker s request for hearing aids. 5. WorkplaceNL provided a final decision to the worker on April 17, 2015 outlining the reasons for the denial of her claim. The worker has requested a review of that decision. Issue 6. The worker has requested a review of a decision of WorkplaceNL dated April 17, 2015. The worker requests I find WorkplaceNL erred in determining her hearing loss is not work related. The worker requests hearing aids. 1
Outcome 7. The decision of WorkplaceNL dated April 17, 2015 is set aside. The claim is referred to WorkplaceNL for further review to provide a decision which reflects the analysis required under Section 60(1) of the Act. The worker is to receive a new decision on her claim. Legislation and Policy 8. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28. 9. Also relevant and considered in this case are Sections 19(4), 43, 59, 60(1) and 90 of the Act, along with Policy EN-12: Hearing Loss. Relevant Submissions and Positions 10. The worker s position is a straightforward one. She has worked for 30 years in a noisy environment; she has profound hearing loss which she alleges has arisen out of and in the course of that employment. 11. The position of WorkplaceNL is outlined in the decision of the internal review specialist dated April 17, 2015. Having referenced the relevant legislation and policy, the opinion of the medical consultant and noting her review of the audiology reports, the internal review specialist concluded with the following: In review of your file, I note that the Medical Consultant has written the ENT Specialist. He is requesting an assessment and comments on the likely etiology of her hearing on (sic) would be appreciated. It is noted that you have had significant noise exposure but the Medical Consultant felt that your audiogram was somewhat atypical. He requested that [the ENT Specialist] forward the report to the Commission. As policy outlines, a full work history indicating exposure to hazardous noise levels and an audiological assessment performed by a registered audiologist are reviewed to determine entitlement to compensation for industrial hearing loss. This information had been provided a reviewed (sic) in consultation with one of the Commission s Health Care Consultants. The Consultant reviewed the audiogram dated November 13, 2014. Although your work history confirms a history of significant noise exposure, the audiogram does not show a pattern typical of noise induced hearing loss. Therefore, the Intake Adjudicator denied your claim for coverage for industrial hearing loss. From my review of the audiological reports and audiogram as well as the Medical Consultant s comment, I would concur with the Intake Adjudicator s decision to deny your claim for industrial hearing loss. However, I note that it has been suggested that you be seen by an ENT Specialist regarding your hearing loss. A referral by the Commission s 2
Medical Consultant has been made on your behalf. Once you are seen by the ENT Specialist, this report should be forwarded to the Commission, at which time, a further review of your claim will be undertaken to determine whether or not this report impacts on the previous decision to deny your claim for entitlement for industrial hearing loss. However, as your claim is currently documented, I would uphold the Intake Adjudicator s decision to deny your claim for industrial hearing loss. Analysis 12. 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 noiseinduced 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 3dB 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 3
sources of noise, such as sirens or gunshots, can produce asymmetric loss. When evaluating cases of asymmetric loss, a referral to rule out retrocochlear 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; 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 75. 13. From the foregoing outline of policy criteria, it appears the worker meets many, if not all, the criteria outlined by the Policy for acceptance of her claim. I note the Policy provides a definition for hearing loss for the purposes of the Policy as: Hearing loss that develops slowly over a long period of exposure to continuous or intermittent hazardous noise levels is referred to as noiseinduced hearing loss. The evidence from the employer, in a letter to WorkplaceNL dated December 3, 2014 confirms the worker s employment since 1990 and the noise level readings are reported as hazardous at 92dB(A). In this case, the worker s exposure has been established. 14. I also note the Policy requires: 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. The medical consultant has indicated the hearing loss is of 40 decibels from 250 hertz up to 6000 hertz. This evidence confirms there is greater than a 25 decibel loss of hearing in each ear as the Policy requires. 15. The opinion of the medical consultant is outlined in a claim note dated December 24, 2014 as follows: I have reviewed [the worker s] file, claim #... [The worker] is a 50 year old employee of.that has been a plant worker for almost 30 years. There is a history of significant noise exposure. The audiogram dated 13-11-14 however does not have the pattern typical of noise induced hearing loss. The loss is constant across all frequencies rather than having a notch in the 4 KHz-6KHz range. I would suggest that a referral to ENT be arranged. (emphasis mine) 4
16. I note from the file a referral appointment as recommended by the medical consultant was arranged and scheduled for March 3, 2015. For the purposes of the referral the medical consultant provides correspondence dated January 7, 2015 to the ENT Specialist which I note states: Thank you very much for agreeing to see [the worker]. [The worker] is a year old lady who has worked in a fish plant for the past 29 years. [The worker] recently applied for hearing loss benefits from the Workplace Health, Safety and Compensation Commission. Very little medical history was provided with her application. [The worker] has been exposed to significant noise over the past almost 30 years. The position she currently works in has exposures up to 91 decibels. The audiogram undertaken on the 13 th of November 2014, however, reveals a pattern of loss atypical for noise induced deafness. She had a pretty well constant loss of 40 decibels from 250 hertz up to 6000 hertz Your assessment and comments on the likely etiology of her hearing loss will be greatly appreciated. She certainly has had significant noise exposure, but I do feel that her audiogram is somewhat atypical. 17. A claim note of February 20, 2015, however, confirms the ENT appointment has been cancelled. A reason for the cancellation is not noted and I cannot determine who cancelled it. However, the internal review decision appears to proceed on the basis this appointment is still pending. 18. The primary reason for the denial relates to the pattern of typical noise induced hearing loss as recorded on audiogram. The audiogram, as I understand it, must illustrate the presence of a notch pattern in order for the hearing loss to be noise induced and subsequently compensable. I note the Policy makes no reference to the presence of the noted notch. Further, there is no consideration given to the other evidence on the claim supporting the worker s position her hearing loss has arisen out of and in the course of her employment. It is denied solely on the absence of the notch. There is also no consideration of factors which may have contributed to the less that typical pattern. 19. As I review the final decision of WorkplaceNL, I find it appears from the concluding comments of the internal review specialist it has not yet been determined whether the worker s hearing loss is in fact related to her employment. The question, in my view, has not yet been answered. 20. Under Section 60(1), a worker has the responsibility to prove his or her claim. That may include supplying evidence to WorkplaceNL, or it may simply be by way of allowing WorkplaceNL to obtain evidence. In certain cases, especially where Section 61 applies, WorkplaceNL also has a responsibility to disprove a claim, when supporting evidence is provided by the worker. While Section 60(1) does not provide for a reverse onus, in this case, the worker has apparently met the Policy requirements for exposure and average decibel loss. A formal audiogram has also been submitted confirming the extent of loss which is significant. Under these circumstances, the worker has proven, from evidence, that she at least meets the stated requirements of the Policy for entitlement. Since Workplace NL concluded that the worker does not have a compensable claim, I find WorkplaceNL has an obligation to demonstrate its finding, also by way of evidence, that the worker s claim fails for reasons other than those which are contained in the Policy. As 5
noted, the worker s claim, on the face of things, is supported by evidence submitted by both the worker and her employer. 21. The basis of the denial is the absence of the notch pattern, which usually denotes that the readings are inconsistent with the type of occupational hearing loss compensable under the Act, but there is no explanation what the source of the loss is, despite there being evidence that the work conditions were both 1) hazardous and 2) capable of producing bilateral hearing loss, which is what the worker has. Where, as in this case, the existing evidence shows the conditions of the Policy are satisfied, WorkplaceNL has to provide a reasoned analysis, including contrary evidence, why the claim would still fail. I conclude this because it is apparent WorkplaceNL, at one point, was not convinced it could dismiss the claim solely due to the lack of a notch pattern, at least not without further investigation. 22. I recognize the referral by the medical consultant to the ENT Specialist appears to have been an attempt to further investigate this very question. The referral was made on January 7, 2015 yet the denial was issued on February 4, 2015, and upheld on April 17, 2015. There appears to have been no opportunity for the inquiry to be completed as the denial was prematurely issued. 23. The difficulty here is that WorkplaceNL, having recognized that further investigation was required, rendered a final decision without completing it. Workplace NL has a duty to investigate claims under Section 59 of the Act, but it also has a larger obligation to investigate claims in good faith, under Section 60(1) and the Act, generally. I note the following from the 2011 Iron Ore Company of Canada decision; [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 was entitled to assume that the Commission's investigation into his condition was being properly completed. (emphasis mine) 24. The decision seems to assume that the ENT appointment recommended and arranged by WorkplaceNL is still pending, but dismisses the claim subject to the proviso that the worker can reapply once the results are available. This suggests that WorkplaceNL anticipates the results may be relevant, which is presumably why the consult was arranged in the first place. However, if the consult has been cancelled, the premise of the decision is not accurate. I find that once WorkplaceNL decided the consultation was required, the consult had to take place once the issue could be finalized. As such, WorkplaceNL cannot make a compliant decision until it arranges this consult, reviews the results, and weighs it in a balanced analysis, as required by Section 60(1) of the Act, which requires that all relevant evidence be taken into account. 6
25. I also wish to note the internal review specialist indicates the November 13, 2014 audiogram was reviewed by a WorkplaceNL health care consultant. The file, however, does not contain any evidence such as a claim note or memo from a health care consultant other than the medical consultant. I do not believe from the context of the decision the reference was to the medical consultant s review. It might have been useful to have that evidence, which appears to have been considered by the internal review specialist included in the worker s file documentation. 26. I find WorkplaceNL has yet to make a compliant decision on this claim. A decision which demonstrates consideration of all the file evidence, viewed in accordance with Section 60(1) is required. Decision 27. The decision of WorkplaceNL dated April 17, 2015 is set aside. The claim is referred to WorkplaceNL for further review to provide a decision which reflects the analysis required under Section 60(1) of the Act. The worker is to receive a new decision on her claim. Referred to WorkplaceNL Marlene Hickey Chief Review Commissioner January 11, 2016 Date 7