WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: CASE ID # [personal information] THE WORKER APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION # 34 Worker: Represented by: Himself Respondent: Represented by: Geoffrey Connolly Stewart McKelvey Stirling Scales Place and Date of Hearing: Best Western Charlottetown - MacLauchlans 238 Grafton St. Charlottetown, PEI Date: March 14, 2005 Date of Decision: August 30, 2005
1 Facts: 1. The worker was employed as a Stationary Engineer at the Heating Plant from May 1977 to October 1990. He claims that during the years 1986 through 1990, he was exposed to noise levels of 100 decibels and higher, which gave rise to his current noise-induced hearing loss. 2. The worker filed a Workers Report of accident dated February 17, 2003, stating the date of accident to be between September 1986 and September 1990. He described what happened to cause the injury as working with extreme high level noise 100 decibels+. 3. The worker further stated on his Hearing Loss Questionnaire that he was exposed to those noise levels for 12-hour shifts over a period of 4 years. 4. The worker s physician, Dr. Charles Cron, Halifax, Nova Scotia, in a letter to Dr. Machel dated January 14, 2003, stated the following: There is a history of noise induced hearing loss. This is a history of noise exposure 100dB, 12 hours a day for about four years while working he put in 40 hours per week He noted his ears would be ringing when he went home after a shift. He did have sound protection provided but he did not use the sound protective devices as he found that he was unable to communicate with his co-workers while using the hearing protection There is no previous history of hunting or other exposure to noise The findings are consistent with a bilateral otitis externa His audiograms shows a bilateral sensorineural deafness dropping down to about 75 db at 6K in the right ear and to 75 db at 4K in the left ear For all intents and purposes, his hearing is socially adequate but he does have a tone nerve deafness, most likely secondary to noise exposure. 5. The worker was again seen by Dr. Charles Cron on March 23, 2003 and on April 24, 2003, at which time his physician reported The ear canals are now normal in appearance. There has been no recurrence of problems and the tympanic membranes are normal and the canal skin is now normal. There is a bilateral noise induced hearing loss.
2 6. Dr. Cron submitted a report also dated April 24, 2003 to the Workers Compensation Board which stated: [The worker] has a long exposure to noise levels of 100 db, 12-hours per day for at least four years He reported his ears would be ringing after he went home after shifts. He did not use sound protection as he found he was unable to communicate with his co-workers when he used sound protection. He has been cautioned in regards to any further exposure to loud noises and cautioned to use sound protection whenever working in these conditions. 7. The Employer failed to submit an Employers Report of Accident despite several requests from the Board to do so. 8. The Employer did confirm We have no records of decibel noise levels on file [at its work-site]. 9. The Client Services Division of the Workers Compensation Board issued a decision letter dated July 18, 2003, which stated: At this time, your claim has been denied as the current level of hearing loss does not meet the eligibility requirements of the Board s Hearing Loss Policy Number POL 04-10. As per this Policy, hearing loss is determined by averaging the loss of hearing at four audio frequencies (500, 1000, 2000, 3000 Hz). The average hearing loss must be 35 decibels or greater in one ear in order to be eligible for medical aid, including a hearing aid. When the average of the above four frequencies was done on your claim, they were 22.5 in the right ear and 23.75 in the left ear 10. The worker requested to be compensated through an anatomical loss award. He argued: I received permanent hearing loss due to work (over 100 decibels) between September 1986 and September 1990. This should be treated as on the job injury.
3 11. The IRO conducted a Paper File Review on October 16, 2003. 12. In his decision the IRO accepted the workers claim in part but found that the hearing loss did not meet the requirements of existing Board Policy, which provides compensation benefits - if certain levels of hearing loss have been confirmed. The IRO held: 2.1 Reconsideration request is Accepted - in Part. 2.2 I find the worker has a right to an approval of claim recognition, but due to his level (rating) of noise induced bilateral hearing loss not meeting the minimum threshold requirements for actual compensation benefits entitlement, he is not eligible for compensation benefits under the Workers Compensation Act for the reasons identified herein. 2.3 This matter is referred back to the jurisdiction of the Board s Client Services Division to establish claim recognition for this case. Notice of Appeal In his Notice of Appeal to this Tribunal, the worker stated: I feel your decision from my Audiogram test were from average readings and no consideration given for damage to hearing loss from noise induced areas where permanent damage has resulted in hearing loss. Subsequent to this Notice, the worker also filed his March 8/05 letter with the Appeals Tribunal in support of his claim, in which the following is stated: My appeal is the level of 35 decibels as a Book Mark, and to point out thte effects of hearing loss from (noise-induced hearing loss) from + 100 db for 12-hour shifts and how it controls my every day life Dr. Cron claims I have a bilateral high tone sensorineural hearing loss which is high tone nerve deafness (can`t hear tones like crickets, door bell, etc). I also have an overall speech reception threshold of 15 db in both ears. And Dr. Cron states that hearing aids would be of no help as damage is permanent. I am requesting Compensation Benefits. The Issue:
4 Is the worker entitled to Compensation? The IRO stated the issue to be as follows: Is the worker entitled to worker s compensation benefits for current-day hearing loss which he sates is a result of his employment between September 1986 and September 1990? He then broke the issue down into two components: 1. Firstly, the worker is seeking recognition by the Workers Compensation Board for his bilateral hearing loss claim request as being caused by his employment. 2. Secondly, upon recognition of his claim request, the worker is requesting he be provided what ever benefits he is entitled through the compensation program. Analysis: At the Hearing, the worker, who was accompanied by his spouse, confirmed to a large extent, what has been set out (in the Respondent s Factum and in the decision of the IRO) as the Facts in this case. At his place of employment he was exposed to noise levels - that caused him to have ringing in his ears and headaches. Much of his twelve (12) hour shift work exposed him to loud noises from a part of the heating system, a boiler. The worker did indicate that with some regularity, he was required to have his hearing tested while employed in the province when he encountered hearing problems. He confirmed that the results of these tests were never revealed or made known to him. There is no reason to doubt that fact. The employer apparently has no record of any such tests. The worker also indicated that certain tones and background noises give him some problems to the point that it is difficult to carry on a conversation with his spouse if a radio or TV is turned on in the
5 same room. He confirmed that the diagnosis from the specialist Dr. Charles Cron is that his hearing impairment is permanent and that a hearing aid will not help. The Board has filed as part of the record Guidelines to the Evaluation of Permanent Impairment, published by the American Medical Association. The Board has adopted these guidelines and incorporated same into its Policy on Hearing Loss. Some pertinent excerpts from these AMA guidelines are: _ The following criteria have been adapted from information provided by the American Academy of Otolaryngology-Head and Neck Surgery. Impairment of an individual s hearing is determined according to evaluation of the individual s binaural hearing impairment. _ Permanent hearing impairment: This is reduced hearing sensitivity that is outside the range of normal. _ Permanent binaural hearing impairment: This is a binaural hearing loss that interferes with the individual s ability to carry out the activities of daily living. _ Intensity: This is measured in decibels (db). _ Hearing threshold level for pure tones: This is defined as the number of decibels above a standard audiometric zero level for a given frequency at which the listener s
6 threshold of hearing lies. It is the reading on the hearing level (HL) dial of an audiometer that is calibrated according to American National Standards Institute (ANSI) audiometer specifications S3.6-1989. _ Evaluation of monaural hearing impairment: If the average of the hearing levels at 500, 1000, 2000, and 3000 Hz is 25 db or less, according to 1989 ANSI standards, no impairment is considered to exist in the ability to hear everyday sounds under everyday listening conditions (Table 1, p.225). At the other extreme, if the average of the hearing levels at 500, 1000, 2000, and 3000 Hz is over 91.7 db, the impairment for hearing everyday speech is considered to be total, that is, 100%. _ Evaluation of binaural hearing impairment: The evaluation of binaural hearing impairment in adults is derived from the pure-tone audiogram and is always based on the functioning of both ears. On the first question, the IRO found in favour of the worker; and referred the matter back to the Client Services Decision. The IRO held that: 9.5 The worker did incur a bilateral noise induced hearing loss caused by employment. However, this was only part of the relief sought by the worker, whose claim was for compensation for his hearing loss. Is the worker entitled to Compensation at this time? With respect to the issue of whether or not compensation must be paid to the worker the IRO turned
7 to the Board Policy which sets out the Criterion that must be met in order to qualify for medical aid and/or compensation. Tests in both ears showed that the worker did not meet the requirements for compensation. In applying the average readings to both the left and the right ear the Case Manager noted that in the right ear the reading was 22.5, and in the left ear it was 23.75, which fell short of the levels that would support an entitlement to compensation. The Board Policy, adopting the AMA Guidelines, requires that before a claim for compensation can be accepted the average reading must be 35 decibels or greater in one ear: For medical aid only (ie. Hearing aid), the average must be 25 decibels in one ear. Section 32 of the Act States: 32.(1) Subject to section 56, the Board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Act and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the Board; and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any court, and no proceedings by or before the Board shall be restrained by injunction. (2) Without limiting the generality of subsection (1) the decisions and finding of the Board upon all questions of law and fact are final and conclusive, and in particular, the following shall be deemed to be questions of fact: (a) whether any injury or death in respect of which compensation is claimed was caused by an accident within the meaning of this Part; (b) the question whether an injury has arisen out of or in the course of an employment within the scope of this Part; (c) the existence and degree of disability by reason of any injury; (d) the permanence of disability by reason of any injury; (e) the existence and degree of an impairment and whether it is the result of an accident;
8 (f) the amount of loss of earning capacity by reason of any injury; (g) the amount of average earnings; (h) the existence of the relationship of a member of the family; (i) the existence of dependency; (j) whether or not the employer s undertaking or any part, branch or department of an employer s undertaking is in an industry within the scope of this Part, and the class, sub-class, group or sub-group to which an employer s undertaking or any part, branch or deparment thereof should be assigned; (k) whether or not any worker in any industry within the scope of this Part is himself or herself within the scope of this Part and entitled to compensation thereunder; (l) whether any particular disease is peculiar to or characteristic of any particular industrial process, trade or occupation, to which this Part applies; (m) the costs for the year for a class, sub-class, group, sub-group or undertaking. (3) Where an action in respect of an injury is brought against an employer or a worker of an employer by a worker or legal personal representative or a dependant of the worker, the Board has jurisdiction, on the application of a party to the action, to adjudicate and determine whether the right of action is removed by this Act; and the adjudication and determination is final and conclusive, and if the Board so determines, the right of action is removed by this Act. (4) The Board may of its own motion state a case in writing for the opinion of the Appeal Division of the Supreme Court upon any question which in the opinion of the Board is a question of law. (5) The Appeal Division of the Supreme Court shall hear and determine the questions of law arising thereon and remit the matter to the Board, with the opinion of the court thereon. 1994, c.67,s.32. Section 56(7) states: 56(7) There is hereby established an Appeal Tribunal consisting of a chairperson, one or more vice-chairpersons and as many members, equal in number, representative of employers and workers respectively as the Lieutenant Governor in Council may determine, all of whom shall be appointed by and shall hold office at the pleasure of the Lieutenant Governor in Council. There is no doubt that the issue of entitlement to compensation is a question of Fact. The PEI Court of Appeal in Re Fraser clearly stated that the Board has the last word in such a determination as was
9 in issue in that case. Speaking for the Court, Justice McQuaid held: The Appellant challenges the August 14, 1993 decision of the respondent denying him benefits under the Workers Compensation Act, RSPEI 1988, Cap. W-7 because it found that his capacity to earn had not been diminished by the injury he sustained. The appeal against this ruling must be dismissed because s.32(1)(d) of the Workers Compensation Act deems such a finding a question of fact, and that being the case, no right of appeal exists. Section 32(2) provides for appeals respecting questions of law and jurisdiction, but not fact. According to subsection 32(1), findings of fact are final and conclusive. No question of law or jurisdiction arises with respect to the finding in this case because the respondent had evidence before it from which it could reasonably have reached the conclusion it did. The fact that this Court might disagree with the Board s decision or that it might have reached a different one is really immaterial. The Legislature obviously wanted the Board to have the last word on such matters. It is true that s. 17 requires the respondent to give an applicant the benefit of the doubt. However, it does not appear that the evidence left the Baord any doubt. Obviously, the Board was satisfied that the weight of the evidence overcome any presumption created in favour of the appellant through the operation of s. 17. (emphasis added) This Tribunal is aware of the worker s claim that the level of 35 decibels as a Book Mark" [apparently is not good criterion upon which compensation should be based]. However, the Act permits the Board to have certain policies in place; and, by the adoption of the AMA Guidelines, the IRO was bound to apply, as was the Case Worker, the Policy on Hearing Loss. This then, is sufficient to dispose of the worker s claim for compensation and his appeal of the decision of the IRO. Having said that, the Fraser case applies in any event; and in the absence of any evidence that the decision of the IRO was either wrong or unreasonable, this Tribunal cannot overturn the decision of the IRO unless there is clear evidence of an error in law and/or evidence of
10 some error that would or did deprive the IRO of jurisdiction - no such evidence was addressed by the worker or found in the record. In addition to the foregoing, the Appeals Tribunal is strictly, by the Statute (The Act) bound by Board Policy. In short, even if there was some question as to whether the issue involved a question of fact, the Board, and in this case the IRO has the last word on Board Policy. In conclusion, while everyone has a right to appeal the decision of the IRO, there are some cases where the Appeals Tribunal cannot provide the remedy sought by the Appellant (worker). This is one of those cases, as the Appeal Tribunal cannot overturn, in the absence of proof of an error in law and/or jurisdiction on the part of the IRO, the decision of the IRO when it is based entirely, or for the most part, on Board Policy. This is especially so when that Policy adopts well recognized medical findings and/or literature that has gained wide-acceptance by the practitioners involved with the worker and the Board. The Appeal is therefore dismissed. -11- Dated this 30th day of August, A.D. 2005.
Allen J. MacPhee, Q.C. Chair of the Appeal Tribunal Scott Dawson Tribunal Member Jamie Matthews Tribunal Member
WORKERS COMENSATION APPEAL TRIBUNAL BETWEEN: WORKER APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION # 34 Prepared by: Allen J. MacPhee, Q.C. P.O. Box 238 Souris, PEI C0A 2B0 Word/workersCompensation.Decision34