NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL. Participant entitled to Workers Compensation Board of Nova Scotia (Board)

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1 WCAT # AD-RTH NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participant entitled to respond to the appeal: Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION AND S.251 REFERRAL TO HEARING OFFICER Representatives: [X] Form of Appeal: Oral hearing at Bridgewater, NS, on March 2, 2010 WCB Claim No.: [X] Date of Decision: May 7, 2010 Decision Summary: The appeal of the July 30, 2009 Board Hearing Officer decision is in part denied and in part referred back to the Hearing Officer for reconsideration according to the reasons of Appeal Commissioner Sandy MacIntosh.

2 2 WCAT # AD- RTH CLAIM HISTORY AND APPEAL PROCEEDINGS: On August 20, 2007, the Worker filed an Occupational Noise-induced Hearing Loss claim form with the Board. In addition to hearing loss, the form indicated that the Worker had ringing in the ears. On October 30, 2007, a Board Administrator found that the Worker did not have an acceptable claim for hearing loss or tinnitus. The Administrator found that on retirement, the Worker s hearing loss was not severe enough to accept his claim. As he did not have an acceptable hearing loss claim, the Administrator found that he did not have an acceptable tinnitus claim. She also noted that the tinnitus was a long-standing problem. On July 30, 2009, a Board Hearing Officer confirmed the Administrator s decision. Amongst other things, the Hearing Officer considered whether more recent evidence would allow the Board to accept the Worker s claim. This decision addresses the Worker s appeal of the Hearing Officer s decision. The Worker s representative argues that the current science supports the conclusion that noise-induced hearing loss continues to deteriorate following removal from the noise source. She argues that noise-induced tinnitus can be accepted without an acceptable claim for noise-induced hearing loss. In the alternate, she argues that a hearing loss claim need not solely arise from workplace exposures. Such a claim can be accepted and benefits apportioned according to Board policy. The representative filed a report from Dr. Ruddy, ENT surgeon, in support of her arguments. The Board s representative relies on the findings of this Tribunal in Decision AD (September 26, 2003). In that decision, the Tribunal considered a considerable volume of medical evidence and heard expert testimony. It concluded that there was insufficient evidence to conclude that hearing loss continues to deteriorate following removal from a noise source. Further, the Board s representative relies on Tribunal Decision AD (February 8, 2010). In that decision, the Tribunal found that Board policy requiring an acceptable claim for noise-induced hearing loss before a noise-induced tinnitus claim can be accepted is lawful. 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 3 WCAT # AD- RTH ISSUES AND OUTCOME: Can compensation be provided for hearing loss-related tinnitus in the absence of an acceptable claim for hearing loss? No. Binding Board policy requires acceptance of a hearing loss claim before compensation can be paid for tinnitus. Should the Board reconsider whether the Worker has an acceptable claim for hearing loss? Yes. Dr. Ruddy s February 25, 2010 report contains new evidence meriting a referral. Additionally, it is appropriate for a hearing officer to consider the application of the apportionment policy to the acceptance of the Worker s claim. ANALYSIS: Can compensation be provided for hearing loss-related tinnitus in the absence of an acceptable claim for hearing loss? Board policy 1.2.5AR requires an acceptable claim for hearing loss before noise induced tinnitus can be compensated. The Worker s representative noted that Dr. Ruddy took issue with the policy requirement that there be an acceptable claim for hearing loss before noise-induced tinnitus can be compensated. In his February 25, 2010 opinion letter, Dr. Ruddy indicated that many other jurisdictions adjudicate tinnitus independent of an acceptable claim for hearing loss. He stated that the Department of Veterans Affairs had adopted that approach and is now re-adjudicating all claims that had been denied on the basis of insufficient hearing loss. He expressed the view the noise-induced tinnitus can arise without significant noise-induced hearing loss. As noted by the Board s representative, the Tribunal has recently addressed this legal issue. In Decision AD the tribunal considered whether the policy requirement of an acceptable claim for hearing loss in order to compensate for tinnitus was lawful. It concluded that the policy was lawful. I agree with the reasoning in Decision AD. Policy 1.2.5AR is a valid policy. Other statutory compensation systems may well take a different approach than policy

4 1.2.5AR, but that does not determine the lawfulness of the policy. 4 WCAT # AD-RTH The Worker can only be considered for compensation for tinnitus if he establishes an acceptable claim for noise-induced hearing loss. As an aside, it may be timely for the WCB Board of Directors to consider whether the current policy framework for compensation of hearing loss and tinnitus remains appropriate. Increasingly, the Tribunal is being presented with evidence that challenges the apparent assumptions that underlie the policy framework. The complexity of the evidence being presented to decision-makers in hearing loss claims is increasing. In addition, questions concerning fairness and lawfulness of the Board traditional approach to apportionment and hearing loss are being raised. These issues all arise within the context of an aging workforce and the Board s duty to manage the Accident Fund. Should the Board reconsider whether the Worker has an acceptable claim for hearing loss? Subsection 251(1) of the Workers Compensation 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, the appeal will receive priority over other appeals filed with the Tribunal. There are two reasons why I find it appropriate for a hearing officer to reconsider this appeal. First, Dr. Ruddy s February 25, 2010 report contains new evidence that merits a referral. Institutionally, the Board has long taken the position that hearing loss due to noise does not progress once the exposure to noise has discontinued. In Decision AD a Panel of Appeal Commissioners examined conflicting evidence on this point, including hearing from experts on both sides of the issue. It concluded that most scientific evidence did not support the theory of progressive hearing loss. However, it was an emerging theory for which there was preliminary and suggestive evidence. The American College of Occupational and Environmental Medicine is a large umbrella group representing many physicians and specialists with an interest in occupational medicine. As such, it has credibility when it states current scientific views. It released a position statement on noise-induced hearing loss in This included a statement that

5 5 WCAT # AD-RTH most scientific evidence does not support continuing hearing loss after removal from the noise source. It did indicate that this was a priority area for more study. This position statement has often been relied upon by Board decision-makers and was an important piece of evidence in Decision AD. Dr. Ruddy expressed the view that the 2002 position statement has been seriously undermined by new evidence and should no longer be used without a fuller discussion of the current evidence base. He cited several studies in support of this position. Further, Dr. Ruddy expressed the view that audiogram results for persons with tinnitus can be falsely elevated at times. He noted that the Worker had a long history of complaining bitterly about tinnitus. As a result, the Worker s audiogram results may report greater hearing ability than in fact exists. This type of opinion evidence was never considered by the Hearing Officer. Second, the Worker s representative argues that where (1) hearing loss is sufficient to amount to a permanent medical impairment; and (2) the cause is a combination of compensable noise exposure and non-compensable causes, then the Board should accept the claim and apply its apportionment policy to determine compensation (policy ). The Hearing Officer s decision does not address this argument. The disposition of this appeal merits a referral to a hearing officer to consider the application of policy to this appeal. Should the hearing officer find that the Worker has an acceptable claim for noise-induced hearing loss, then it is appropriate for the hearing officer to determine whether the Worker has an acceptable claim for tinnitus. CONCLUSION: The appeal is denied in part, and in part referred to a hearing officer for reconsideration. th DATED AT HALIFAX, NOVA SCOTIA, this 7 DAY OF MAY, Sandy MacIntosh Appeal Commissioner

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