NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participant entitled to respond to this appeal: The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: [X] Form of Appeal: Oral hearing held at Stellarton, NS on May 21, 2009 WCB Claim No.: [X] Date of Decision: June 16, 2009 Decision: The appeal of the February 12, 2009 Board Hearing Officer decision is allowed in part, according to the reasons of Appeal Commissioner Brent Levy.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker was injured on June 23,1985 when a tank he was sandblasting exploded and struck him. The Worker sustained injuries to his ears and cervical spine. The Worker s left eardrum was perforated. As a result of the cervical spine injury, the Worker s C1-C2 vertebrae was fused on November 4, The Worker underwent a Permanent Medical Impairment [ PMI ] assessment on June 18, Pursuant to a decision dated August 21, 2008, the Worker was awarded a 15% PMI rating concerning his cervical spine effective as of October 29, Pursuant to a decision dated October 22, 2008, the Board concluded that the Worker s right-sided hearing loss was not attributable to his employment or compensable injury. The Board also concluded that there was insufficient evidence to render a decision concerning the Worker s left ear. A Hearing Officer Decision dated February 12, 2009 concluded that the Worker did not satisfy the eligibility criteria for noise-induced or traumatic hearing loss for either ear. The Hearing Officer also found that the Worker did not satisfy the eligibility criteria concerning noise-induced or traumatic tinnitus. The Worker appealed to the Tribunal. An oral hearing was held in Stellarton on May 21, The Worker was represented. The Worker filed an article entitled Compensable Tinnitus from Causes Other Than Noise, which was marked as Exhibit 1". The Worker seeks a finding that his hearing loss and tinnitus is compensable either as a result of trauma or noise-induced hearing loss. ISSUES AND OUTCOME: Does the Worker have an acceptable claim for traumatic hearing loss? No. The Worker s hearing loss following the compensable injury was not sufficiently severe to meet the eligibility criteria concerning traumatic hearing loss. Does the Worker have an acceptable claim for tinnitus caused by trauma? No. There is insufficient medical evidence corroborating the Worker s testimony that he has suffered from tinnitus on a continual basis subsequent to his compensable injury. This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 Does the Worker have an acceptable claim for occupational noise-induced hearing loss? Yes. The Worker is given the benefit of the doubt that his 1985 audiogram is most reflective of his hearing loss resulting from occupational noise exposure. The Worker s hearing loss in his right ear satisfies the applicable eligibility criteria while the hearing loss in his left ear does not. The Worker has an acceptable claim for occupational noise-induced hearing loss. The Worker, however, is not entitled to a PMI rating because his hearing loss is not sufficiently severe to satisfy the eligibility criteria. The Board is directed to reconsider the Worker s benefit entitlement given the finding that he has an acceptable claim for occupational noise-induced hearing loss. Is the Worker entitled to compensation for noise-induced tinnitus? Potentially. The Worker s claim concerning tinnitus should be re-evaluated given the finding that he has an acceptable claim for occupational noise-induced hearing loss. ANALYSIS: The Board s and the Tribunal s files have been reviewed, and the testimony from the oral hearing has been considered. The testimony and documentary evidence most relevant to my reasoning and conclusions shall be set out in this decision. The Workers Compensation Act, S.N.S , c.10, as amended [the Act ] applies to this appeal. Section 186 of the Act requires that this appeal be decided in accordance with the real merits and justice of the case. The Worker is also entitled to the benefit of the doubt on any issue involving compensation pursuant to Section 187 of the Act. Where there is doubt on an issue, and the disputed possibilities are evenly balanced, the issue must be resolved in the Worker s favour. Consideration is given to whether the compensability of the Worker s hearing loss may be considered on its merits or whether a new evidence analysis must be utilized. The Board s October 22, 2008 decision cited a September 26, 1985 decision, which concluded that the Worker was not entitled to a permanent disabilty award, and concluded that the subsequently provided information was insufficient to alter this decision. The Hearing Officer, however, considered the claim on its merits. The September 26, 1985 decision was authored by the Board s Director of Medical Services who expressed the opinion that there was insufficient hearing loss in either ear

4 4 to trigger entitlement to a permanent partial disability rating. The Director of Medical Services also stated that there was not a conductive defect or evidence of trauma. There is a lack of documentation confirming that such decision was conveyed to the Worker and that he was advised of his right to appeal. As a result, a finding is made that the compensability of the Worker s hearing loss may be considered on its merits. Board Policy 1.2.5R1 applies to occupational hearing loss injuries occurring prior to January 1, This policy applies to the Worker s appeal. The Guidelines for Assessment of Permanent Medical Impairment [the PMI Guidelines ] establish the eligibility criteria for traumatic and noise-induced hearing loss as well as tinnitus. Does the Worker have an acceptable claim for traumatic hearing loss? The PMI Guidelines indicate that traumatic hearing loss involves sudden deafness in one or both ears caused by a blast or head injury. The deafness may vary and tinnitus may be present. A worker must have a 30 decibel hearing loss in one of his or her ears in order to have an acceptable claim for traumatic hearing loss. The Worker s file contains an audiogram dated July 6, The Worker s file was reviewed by the Board s audiology consultant. Pursuant to a medical opinion dated October 21, 2008, he was unwilling to express an opinion concerning the Worker s left ear given the absence of certain information. For the right ear, the audiology consultant recommended using the 1985 audiogram results at 500 and 1000Hz to assess the Worker s hearing loss. At 2000Hz, however, the result from a November 21, 2007 audiogram was recommended given that there had been a significant improvement in the Worker s hearing in comparison to the 1985 audiogram. Given that hearing does not improve with the passage of time, the audiology consultant was of the view that the 2007 audiogram was most representative of the Worker s hearing loss at 2000Hz. Pursuant to Decision AD [September 26, 2003, NSWCAT], the Tribunal concluded that hearing loss does not progress once a worker is removed from occupational noise. This decision has been cited with approval in subsequent Tribunal decisions. It is accepted that hearing loss, whether of a gradual noise-induced or traumatic nature, does not progress following a worker s removal from occupational noise. The audiology consultant s preference for the 2007 audiogram result at 2000Hz, however, relies on an underlying inference that, at 2000Hz, the 2007 audiogram is reliable while the 1985 audiogram is not.

5 5 The audiology consultant did not articulate shortcomings with the 1985 audiogram. In contrast, the 1985 audiogram was considered reliable at 500 and 1000Hz. The 1985 audiogram has the advantage of being closer in time to the Worker s compensable injury and cessation of exposure to occupational noise. In addition, it is preferable to use a single audiogram whenever reasonably possible to assess a worker s hearing loss rather than mix and match the results at various frequencies from different audiograms. As a result, a finding is made that it is just as likely as not that the 1985 audiogram results at 2000Hz are an accurate reflection of the Worker s hearing loss. The audiology consultant noted that the 1985 audiogram did not measure the Worker s hearing at 3000Hz. As a result, the audiology consultant recommended that the Board use the 2007 audiogram result at 3000Hz. The 1985 audiogram possesses a dotted line at approximately 3000Hz over which the plot line for the audiogram runs. A decibel hearing loss can reasonably be extrapolated from the graphical depiction of the audiogram results. Such an approach, as noted above, allows the audiogram closest in time to the Worker s compensable injury, and occupational noise exposure, to be used to assess his benefit entitlement. A 35 decibel hearing loss at 3000 Hz shall be used to assess the Worker s benefit entitlement. Utilizing a 20 decibel hearing loss at 500Hz, a 15 decibel hearing loss at 1000Hz, a 35 decibel hearing loss at 2000Hz, and a 35 decibel hearing loss at 3000Hz results in an average decibel hearing loss of concerning the Worker s right ear. This falls below the average hearing loss of 30 decibels required for recognition of a claim concerning traumatic hearing loss. In the case of the Worker s left ear, the evidence reflects that his eardrum was perforated as a result of the injury. Consideration has been given to the weight that can be placed on the 1985 audiogram given that the Worker subsequently underwent surgery in June of A Report of Operation reflects that the surgical procedure was intended to remedy the Worker s perforation; however, no perforation was evident at the time of surgery. In addition, no fluid was observed in the Worker s middle ear. The Worker underwent a myringotomy to clean out debris in the ear. As a result, a finding is made that the 1985 audiogram may be relied upon to assess the Worker s benefit entitlement concerning his left ear. A small gap between air conduction and bone conduction was noted. The air conduction results, however, shall be utilized given the absence of medical evidence stating that the gap between air and bone conduction at that time was sufficiently great to warrant discounting the air conduction results.

6 6 A 25 decibel hearing loss was recorded at 500Hz, a 15 decibel hearing loss was measured at 1000Hz, and a 25 decibel hearing loss was noted at 2000Hz. A decibel hearing loss shall be extrapolated from the 1985 audiogram concerning the Worker s hearing loss at 3000Hz. The plot line trends downward between 2000 and 4000Hz and most closely equates to a 30 decibel hearing loss at 3000Hz. This equates to an average decibel hearing loss of across the four frequencies. As with the Worker s right ear, this decibel hearing loss does not satisfy the eligibility criteria for traumatic hearing loss. Does the Worker have an acceptable claim for tinnitus caused by trauma? The 1985 audiogram did not note complaints of tinnitus. Dr. Sekaran s September 10, 1985 report noted that following the explosion the Worker experienced deafness in his right ear along with some bleeding and tinnitus. Dr. Sekaran, however, did not note ongoing complaints of tinnitus. The Worker s 2008 PMI assessment considered, to a limited extent, the Worker s hearing. The Board Medical Officer did not note complaints concerning tinnitus. A February 7, 2008 report from Dr. Clifton, an Otolaryngology Consultant, noted the Worker s complaints of intermittent, bilateral high frequency tinnitus. The tinnitus was more pronounced in the left ear and was said to have been present for several years. The Worker testified that he developed tinnitus shortly after his workplace accident and that such tinnitus has never gone away. A finding is made that there is insufficient medical evidence to corroborate the Worker s testimony that he has experienced tinnitus on a continual basis subsequent to his compensable injury. As a result, a finding is made that there is insufficient evidence to conclude that the Worker developed trauma-induced tinnitus. Does the Worker have an acceptable claim for occupational noise-induced hearing loss? For noise-induced hearing loss, the PMI Guidelines require an average hearing loss of 25 decibels over the 500, 1000, 2000, and 3000Hz frequencies. In order to qualify for a PMI rating, the PMI Guidelines require an average hearing loss of 35 decibels in at least one ear over the four frequencies noted. The Worker has not been exposed to occupational noise subsequent to the compensable injury. In considering the Worker s occupational noise-induced hearing loss, the results of the 1985 audiogram have been utilized because such audiological testing is closer in time to the Worker s last occupational noise exposure. The decibel hearing loss of concerning the Worker s right ear exceeds the 25 decibel

7 7 eligibility threshold; however, the decibel loss concerning the Worker s left ear does not satisfy the eligibility criteria. On December 9, 2008, however, the Board s audiology consultant expressed the opinion that the Worker s hearing loss was not attributable to noise exposure. The audiology consultant cited several factors in support of this conclusion. Dr. Sekaran s 1985 report noted a healed right-ear perforation which was said to be suggestive of an old, healed ear infection. This was considered evidence of pre-existing middle ear difficulties. The evidence documenting notable hearing loss in 2007, and the development of a pronounced conductive hearing loss, was cited as evidence that factors other than noise had caused the Worker s hearing loss. The audiology consultant also noted that the Worker s high frequency hearing loss in 1985 was inconsistent with noise exposure. The Worker s daughter s hearing difficulties were cited as evidence of a familial history of hearing loss. The Worker testified that his daughter s hearing difficulties were limited to ear infections for which tubes were inserted. This was said to remedy his daughter s hearingrelated problems. The Worker testified that there are no hearing problems on his side of the family. Given that there is an absence of medical evidence documenting the existence of hearing difficulties on the Worker s side of the family, there is insufficient evidence to conclude that the Worker has a familial history of hearing loss. It is noted that the audiology consultant stated that the Worker s hearing loss was not definitely due to genetics, but that it would be consistent with a genetic hearing loss. There is also limited evidence supporting that the Worker had significant pre-existing hearing problems. The subsequent development of a conductive hearing loss suggests the progression, or development, of conductive hearing loss which is not considered by the Board to be attributable to the compensable injury or noise exposure. The Board s Director of Medical Services, however, concluded in 1985 that the Worker did not have a conductive hearing defect. The PMI Guidelines require that a worker be exposed to sufficient levels of noise for at least five years to establish a hearing loss claim. The Worker testified that he began working at his employer s production facility in It is noted that the Worker s exposure to occupational noise ceased when he was in his mid twenties. Given the limited evidence of pre-existing hearing problems, the limited evidence of a familial history of hearing loss, and the relative absence of conductive hearing loss in 1985, a finding is made that it is just as likely as not that the Worker s right-sided hearing loss is

8 8 due to occupational noise exposure notwithstanding his relatively young age when such noise exposure ceased. It is noted that neither Policy 1.2.5R1 nor the PMI Guidelines establish a minimum age threshold which a worker must satisfy in order to claim for noise-induced hearing loss. The Worker has an acceptable claim for noise-induced hearing loss concerning his right ear; however, the Worker does not satisfy the 35 decibel hearing loss threshold for the award of a PMI rating. Is the Worker entitled to compensation for noise-induced tinnitus? The PMI Guidelines require, among other things, that there is an acceptable claim for industrial noise-induced hearing loss. Pursuant to this decision, a finding is made that the Worker satisfies this requirement. As a result, the Worker s claim concerning tinnitus should be reconsidered in light of this decision. CONCLUSION: The Worker s appeal is allowed in part. The evidence does not warrant concluding that the Worker satisfies the eligibility criteria concerning the development of traumatic hearing loss or tinnitus. The Worker s right ear, however, satisfies the eligibility criteria concerning recognition of occupational noise-induced hearing loss while the Worker s left ear does not. The Worker does not satisfy the eligibility criteria concerning the award of a PMI rating. The Board is directed to reconsider the Worker s benefit entitlement, including his claim concerning noise-induced tinnitus, in light of this decision. th DATED AT HALIFAX, NOVA SCOTIA, THIS 16 day of June, Brent Levy Appeal Commissioner