Workplace Health, Safety & Compensation Review Division

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1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Review Division office in Mount Pearl, NL on May 7, The worker participated in the hearing and was represented by Ms. Ann Geehan of the International Brotherhood of Electrical Worker s, Local Mr. Bern Murphy, a retired member of the Union, also attended. 2. It was Ms. Geehan s intent to call Mr. Murphy as a witness, however, notice of Mr. Murphy s attendance had not been provided, nor had information relative to his likely evidence been provided to the Commission. Consequently, Mr. Murphy was not accepted as a witness. Ms. Geehan was provided with options on how she could proceed. Following a brief adjournment, Ms. Geehan indicated an intention to proceed with the hearing without Mr. Murphy s evidence. 3. The Commission participated in the hearing and was represented by Kathy Fry, Hearings Officer. A specific accident employer was not identified on the claim. Introduction 4. The worker was an electrician who worked in noisy environments for most of his working life. In July 1992 he retired and is currently experiencing hearing loss which he claims is related to his employment. 5. The most recent audiology assessment on the file is dated August 21, 2012, however, the worker indicates that he had an audiology assessment in The worker filed a claim with the Commission by way of submitting a Form 6HL, Worker s Report of Hearing Loss dated August 30, 2012 and an Audiologist s Report dated August 29, Upon receipt of the Form 6HL and the Audiologist s Report, the Commission advised the worker that compensation for hearing loss is only considered when the last exposure to noise in the work environment occurred within a five year time frame prior to testing. As the worker s last audiogram was in 2007, his application would not be considered. 1

2 Issue 8. The worker is requesting a review of the decision of the Commission dated November 14, The worker is requesting that I find that the Commission erred in denying his claim for industrial deafness. I find, however, that the issue properly before me is whether the Commission erred in refusing to consider his application due to his failure to meet the required time limits in relation to his Audiology Assessment. 9. Should I find the Commission erred, the worker requests acceptance of his application for an adjudication. Outcome 10. I find the Commission properly applied Policy EN-12: Hearing Loss. There is no change is the status of the worker s application for benefits in relation to his hearing loss. Legislation and Policy 11. 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 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. 2

3 Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) notify the person seeking the review and the commission of the time and place set for the review; and (b) review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) make a decision which is in accordance with this Act, regulations and policy; or (b) where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 12. Policy EN-12: Hearing Loss and Policy EN-20: Weighing Evidence are also considered in this matter, as is Section 60 of the Act. 3

4 Relevant Evidence and Submissions 13. On behalf of the worker, Ms. Geehan acknowledges that the actual issue under review relates to time limits. She submits the worker was unaware there was a time limit to file an application for a hearing loss claim. She states the worker was not aware of any rules or procedures around the filing provisions. 14. Ms. Geehan submits the worker s lack of knowledge should be viewed as an exceptional circumstance and his claim for hearing loss considered accordingly. 15. The worker indicates that he was in denial for quite some time with regard to his loss of hearing. He recalls his previous employment required a hearing test in 1991 and that the test, at that time, indicated hearing loss. He suggests if he had been told to get a hearing aid he would have gotten one. 16. Ms. Fry, on behalf of the Commission notes that Policy EN-12: Hearing Loss is the applicable policy for this claim. She notes that the Policy provisions are premised on the acceptance that occupational hearing loss requires continuing exposure to industrial noise; once the exposure to the industrial noise ends, so does the risk of further damage or deterioration due to occupational causes. 17. Ms. Fry notes the worker did not have an audiogram within five years from the date of employment termination as is required by Policy EN-12: Hearing Loss. She identifies other factors as likely contributors to ongoing hearing loss such family history, ear illness, aging, etc. To support this, Ms. Fry references the Audiologist s Report dated August 29, 2012 which notes the worker is occasionally off balance, has a family history of hearing loss, and has recurrent episodes where he has to have his ears syringed. 18. Ms. Fry acknowledges there may be an audiology report from 2007, but even that report is not within the five years from the termination of employment and would likely not qualify the worker for entitlement to benefits or services. 19. Ms. Fry submits there is no evidence submitted to confirm the worker suffered noise induced hearing loss. As a result, the Commission in unable to confirm compensability. Analysis 20. There is a need to clarify the circumstances in relation to several preliminary matters with respect to the following: a) Mr. Murphy s presence at the hearing: Having confirmed that notice was not provided of Mr. Murphy s attendance, Mr. Murphy was not accepted as a witness. However, Ms. Geehan indicated that she would arrange to have an Affidavit prepared of Mr. Murphy s testimony and forwarded to the Commission for further review. 4

5 b) A 2007 Audiology Report: The worker indicates he delivered the report to the Commission so as to have it included in these proceedings, however, the Commission refused to accept it. I note the 2007 report is not on the claim file, however, it is referenced as existing in the Internal Review Specialist s decision. c) Ms. Fry indicated that all new information could be reviewed by the Commission under Section 64. Ms. Geehan indicated that she would follow up with the Commission on the handling of the new evidence. As a result of the foregoing, the hearing proceeded on the basis of the information in the file at the time of the Commission s decision dated November 14, The worker suggests that his lack of knowledge about the time limits in the worker s compensation system should not be held against him with respect to his claim. The Commission, however, requires evidence on which to assess a claim for compensation entitlement. 22. Specifically, in this case, the evidence required is outlined by Policy EN-12: Hearing Loss. For workers who are no longer exposed to hazardous noise in the workplace, because they have left their employment, hearing loss entitlement is considered on the basis of an audiogram performed at the time of termination of exposure, or within five years of the last exposure. 23. I note the worker has not provided the necessary audiogram and his reason is simply he was unaware. It is reasonable to conclude, however, that had the worker been experiencing deteriorating hearing during his working life, or within the five years following his retirement, he would have sought treatment or consultation for a hearing aid. The evidence, however, confirms no such treatment or consultation was sought. 24. The worker also refutes the Commission s suggestion of family history as a contributor to his hearing loss. He indicates his brothers also experienced hearing loss due to their employment. This, however, does not address the issue under review at this time. The issue at this time is whether the Commission erred in refusing to consider his application due to his failure to meet the required time limits in relation to his Audiology Assessment. 25. The worker is presently 72 years old. There is an onus on him to produce medical evidence that links the employment history to his assertion that he is suffering from hearing loss related to his employment. His subjective view, that he is suffering from hearing loss, does not meet even the minimum requirements for entitlement consideration. 26. Further, the worker s representative requests consideration of exceptional circumstances. I find, however, exceptional circumstances do not exist in this case. There is no evidence to link the worker s employment, from which he retired from twenty years ago, to the hearing loss he suffers today. The evidence required by Policy EN-12 has not been provided to the Commission, and in the absence of any medical evidence from which a finding may be drawn, the claim cannot succeed under Policy EN-12. The audiogram referenced by the Internal Review Specialist was identified as dating from 2007, and, as such, can only speak 5

6 to the worker s condition at that time, fifteen years after the last exposure to occupational noise. It does not assist the Commission in determining his hearing loss at the date the industrial exposure ceased, which is what is contemplated by the Policy. 27. Policy EN-20 provides direction on medical evidence, generally, and includes the following statement; A statement by a lay witness on a medical question may be considered as evidence if it relates to matters recognizable by a lay person; but not if it relates to matters that can only be determined by a person with expertise in medical science. 28. The worker has testified that he noticed changes in his hearing, and was told in 1991 that he was experiencing hearing loss. The results of that test would be of significance for the purposes of Policy EN-12. However, just the worker s testimony, that he experienced hearing loss does not allow me to draw a medical conclusion, or for that matter, enable the Commission to draw a medical conclusion. While the worker s testimony is admissible for the purposes of indicating he experienced a sensation of decreased hearing, it does not quantify the loss of hearing, nor does it qualify as medical evidence as to the extent and cause of the hearing loss for the purposes of Policy EN What the Commission requires is a medical opinion on these issues, or at least data from the relevant time which would enable the Commission to obtain a medical opinion on the entitlement question. Neither exists in this case. There is only so much weight I can place on the worker s subjective evidence relative to the issue under review. Section 60 does not call for a finding in the worker s favour, because, as indicated in Miller v. Newfoundland (Workers' Compensation Commission) (2001), 199 Nfld & PEIR 186; It cannot have application where there is no direct evidence, or no circumstantial evidence from which a reasonable inference could be drawn, supporting the claim. If it did apply in such circumstances, it would have the effect of placing the burden on the Commission to disprove in every case the bare unsupported assertion that the injury arose out of or in the course of the worker s employment. That would be an unreasonable and irrational interpretation of the provision, given the structure of the Act. 30. Therefore, I cannot conclude that there is any exceptional feature in this case which would require that the application of Policy EN-12 be relaxed. The Act does not intend for a finding of entitlement in the absence of medical evidence relevant to the issue. 31. As a result, I find the Commission appropriately applied Policy EN-12: Hearing Loss. 6

7 Decision 32. The decision of the Commission dated November 14, 2012 is confirmed. There is no change in the status of the worker s application for coverage. Review Denied Marlene A. Hickey Chief Review Commissioner May 15, 2013 Date 7