Workplace Health, Safety & Compensation Review Division WHSCRD Case No: 13111-04 WHSCC Claim No: 832088 Decision Number: 14017 Margaret Blackmore Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Mount Peyton Hotel in Grand Falls- Windsor, NL on October 16, 2013. The worker attended the hearing and was represented by Mel Strong, Appeals Officer with the Government Members office, via teleconference. 2. Neither the employer nor the Commission attended or participated in the hearing process. Introduction 3. In December, 2010 the worker submitted a Form 6HL, Worker s Report of Hearing Loss. On May 12, 2011, the Extended Services Adjudicator denied the claim. 4. The worker appealed and on July 19, 2011, the Internal Review Division upheld the decision of the Extended Services Adjudicator and states, in part: From my review of Claim # 832088 I am unable to locate any audiological evidence or audiogram confirming noise induced hearing loss.... 5. On August 8, 2012, the worker submitted additional information, being Audiological reports from 1999, 2002, and 2012. His claim for hearing loss was reviewed a second time. On January 18, 2013, the Extended Services Adjudicator denied the claim. 6. The worker appealed and on March 27, 2013, the Internal Review Specialist upheld the decision of the Extended Services Adjudicator. She found that the Audiogram dated September 18, 1999 did not confirm bilateral hearing loss of at least 25 db, which is what Policy EN-12: Hearing Loss requires before a worker is entitled to compensation for hearing loss. The Internal Review Specialist concluded: I have also considered the arguments that you put forward in your request for internal review. You have requested that your claim be considered under exceptional circumstances and consideration be given to Policies EN-19 and EN-20. From my review of your submission, and of the 1
relevant Commission Policies and Legislations, I find that there is nothing exceptional in your circumstances toward acceptance of your claim to compensation. The audiogram of 1999 does not meet the criteria for entitlement to compensation for industrial hearing loss nor for the provision of hearing aids nor for a Permanent Functional Impairment (PFI) award. 7. On April 29, 2013, the worker appealed this decision claiming that the Commission: (1) should have considered this audiological report of 2012, because it shows my hearing loss to be noise induced hearing loss. (2) Because I ve been a client of WHSCC since 1994 and not open to noises since then. (3) WHSCC and therefore [Internal Review Specialist] as well should have concluded that all of my hearing loss resulted from my employment. Issue 8. The worker is requesting that the Review Commissioner find that the Commission erred in denying his request for coverage of industrial hearing loss. Outcome 9. The Commission acted in accordance with the Act and its policies. The decision of the Commission dated March 27, 2013 is upheld. There is no change to the status of the worker s claim. Legislation and Policy 10. 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) 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 2
(e) 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. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a 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) (b) notify the person seeking the review and the commission of the time and place set for the review; and 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) (b) make a decision which is in accordance with this Act, regulations and policy; or 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. 3
11. Also relevant and considered is Policy EN-12: Hearing Loss. Relevant Submissions and Positions 12. The worker s representative, Mr. Strong, indicates after the initial denial of the worker s claim, the worker submitted additional information, such new information being a 2012 and 1999 Audiological report. He states that the worker believes these Audiograms were not given enough consideration. 13. Mr. Strong also gave a summary of the worker s work history, stating that he had always worked in a noisy environment, first as a Logger, then as an Industrial Mechanic. Mr. Strong states that there is no doubt that the worker s place of employment had a great deal of noise. 14. Mr. Strong also points out that though the 1999 Audiogram finds that the hearing loss in both ears is less than 25 db, it does confirm that the hearing loss is consistent with noise induced hearing loss. He argues that the worker s claim for hearing loss should be considered under the exceptional circumstances provision of Policy EN-12: Hearing Loss and questions why the Commission requested the worker s work history on September 28, 2012, if it was not going to consider the worker s claim under the exceptional circumstances provision. He states that this gave the worker false hope. He states that given the worker s work history, his hearing is deteriorating and he was given very little guidance and information when he began experiencing hearing loss. 15. Mr. Strong argues that the worker s hearing loss is clearly linked to his employment. He argues that on the balance of probabilities, it is clear that the worker was subjected to noise in the workplace which led to his hearing loss and also the exceptional circumstances provision should allow him to be compensated. 16. The worker made some comments on his own behalf and noted that he has been a client of the Commission since 1994. He also states that the 1999 Audiological report proved that his hearing loss was noise-induced, and that the 2012 Audiological report showed that his hearing loss had gotten worse. He states that his hearing loss has substantially worsened since 1994 and 1999, and asks what could have caused it? The worker argues that there are exceptional circumstances here and that he should be entitled to hearing aids. 17. The Commission s position, as set out in the Internal Review Specialist s decision dated March 27, 2013, is that the 1999 Audiogram does not indicate that the worker s hearing loss meets the threshold of bilateral loss of 25 db for the provision of hearing aids or the 35 db bilateral loss threshold for a PFI award. The Commission also states, in part: As well the policy clearly notes that 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 4
to hazardous noise levels or an audiological assessment performed within five years of the last exposure to hazardous noise A review of your file notes that you reported you stopped working in 1994 and began receiving wage loss benefits from WHSCC due to a hand injury under claim number 229546. I have also considered the arguments that you put forward in your request for internal review. You have requested that your claim be considered under exceptional circumstances and consideration be given to Policies EN-19 and EN-20. From my review of your submission, and of the relevant Commission Policies and Legislations, I find that there is nothing exceptional in your circumstances toward acceptance of your claim to compensation. The audiogram of 1999 does not meet the criteria for entitlement to compensation for industrial hearing loss nor for the provision of hearing aids nor for a Permanent Functional Impairment (PFI) award. Analysis 18. My role, in reviewing the decision of the Commission, is to determine whether the Commission acted in accordance with the Act and policies when determining whether the worker was entitled to compensation for hearing loss. As this is a hearing loss case, I must first consider Policy EN-12: Hearing Loss. 19. Policy EN-12: Hearing Loss states, in part: Policy Statement There is entitlement to compensation benefits where a worker develops permanent hearing impairment which arises out of and in the course of employment. Noise-induced Hearing Loss 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. 5
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 sources of noise, such as sirens or gunshots, can produce asymmetric loss 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(1) or (b) have been met; or 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. 20. It is clear that the worker left his employment in 1994 due to a separate workplace injury, not related to hearing loss. In 2010, the worker made a claim for hearing loss which was denied. On August 8, 2012, the worker submitted new information, being Audiological reports from 1999, 2002, and 2012. In his August 8, 2012 letter, the worker noted When I recently made claim for Industrial Hearing Loss, I never had all the necessary documents to substantiate my claim. I now have them and ask that you would review my claim. 21. The 1999 report notes that there is Moderate high frequency sensorineural bilateral loss consistent with noise exposure occupationally. The Commission s Medical Consultant was asked to review the 1999 Audiogram and noted: I have reviewed as requested the September 1999 audiogram on [the worker] at that he would have been aged 53. Using the better of air or bone conduction at the accepted frequencies of 500 Hz, 1000 Hz, 2000 Hz, and 3000 Hz the average hearing loss in the left ear is 20 db and in the right ear is 20 db. This degree of loss does not meet the criteria of a bilateral loss of 25 db for the provision of hearing aids or the 35 db bilateral loss for a PFI. 22. In her March 27, 2013 decision, upholding the Extended Service Adjudicator s denial of the worker s claim, the Internal Review Specialist states, in part: In review of Policy EN-12, Haring Loss, I note that the policy is clear that the degree of loss must be a bilateral loss of 25 db for the provision of hearing aids. In your case, the audiogram of 1999 was reviewed as this was within the five years of your last employment. The Commission s Medical Consultant reviewed the audiogram and noted that the average hearing loss 6
in your left ear was 20 db and in the right ear 20 db. This did not meet the criteria for a bilateral loss of 25 db for the provision of hearing aids. As well the Commission s policy with respect to a PFI for hearing loss notes that the criteria must be a degree of loss of 35 db bilateral loss. You do not meet the criteria for a PFI award for hearing loss as well 23. I see no error in the Commission s review and conclusions relating to the 1999 Audiogram. The Audiogram was examined by the Medical Consultant, who determined that the average bilateral hearing loss was 20 db. As this is less than the threshold of 25 db set out in Policy EN-12: Hearing Loss and less than the 35 db threshold required for any PFI award, the Commission found that the worker is not entitled to compensation. 24. In terms of the 2002 and 2012 Audiograms, it seems clear that the Commission did not consider these, as the worker had them completed more than five years after he left his employment. The Internal Review Specialist states, in part: As well the policy clearly notes that 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 years of the last exposure to hazardous noise A review of your file notes that you reported you stopped working in 1994 and began receiving wage loss benefits from WHSCC due to a hand injury under claim number 229546. 25. The fact that the worker left the workforce in 1994 is not disputed, and it is clear that both the 2002 and 2012 Audiograms were completed more than five years after the worker left his employment. The 2002 Audiogram was completed eight years later and the 2012 Audiogram was completed eighteen years later. Though the Commission does not comment extensively on either of the Audiograms, it is clear that they were not taken into account when looking at the worker s entitlement to compensation due to their staleness. As the five-year time limit is clearly set out in Policy EN-12: Hearing Loss, I find that the Commission acted in accordance with the Act and policies in this regard. The Policy is clear that to be considered, the Audiological assessment must be performed within five (5) years of the last exposure to hazardous noise. 26. The worker argues that his entitlement should be considered under the exceptional circumstances provision of Policy EN-12: Hearing Loss. That provision states, in part: In cases where the individual circumstances of a case are such that the provisions of this policy cannot be applied or to do so would result in an unfair or unintended result, the Commission will decide the case based on its individual merits and justice. Such a decision will be considered for that specific case only and will not be precedent setting. 7
27. The Internal Review Specialist examines this argument and states, in part: I find that there is nothing exceptional in your circumstances toward acceptance of your claim to compensation. The audiogram of 1999 does not meet the criteria for entitlement to compensation for industrial hearing loss nor for the provision of hearing aids nor for a Permanent Functional Impairment (PFI) award. I find no error here. I agree that there do not appear to be any exceptional circumstances in this case. I do not see that applying Policy EN-12: Hearing Loss to the facts of this case would result in an unfair or unintended result. The extent of the worker s hearing loss following his employment was already known no later than the 1999 Audiogram. This captures the degree of the worker s hearing loss experienced during the employment, and for some years afterward. It had not reached the threshold at that point. The later Audiograms are taken from periods long after the worker was exposed to any further industrial noise, and in the absence of any further exposure to industrial noise, the degree to which the worker s hearing loss deteriorated could not be due to employment. 28. Mr. Strong notes that the Commission requested the worker s work history and the worker also argues that this request had given him false hope. Policy EN-12: Hearing Loss requires that the Commission examine the full work history of a worker when determining if he/she is entitled to compensation for hearing loss. Therefore, I do not make much of the fact that the Commission requested the worker s full work history, as part of their examination of his case. 29. I find that the Commission acted in accordance with the Act and Policy EN-12: Hearing Loss when determining that the worker was not entitled to compensation for his hearing loss. The 1999 Audiogram was considered and is showed that the worker had bilateral hearing loss of 20 db. As this did not meet the 25 db threshold or 35 db threshold set out in the policies, the Commission found that he was not entitled to compensation in the form of either hearing aids or a PFI award. The 2002 and 2012 Audiograms were not considered by the Commission, as they were completed outside the five-year time limit set out in Policy EN-12: Hearing Loss. Decision 30. The Commission acted in accordance with the Act and its policies. The decision of the Commission dated March 27, 2013 is upheld. There is no change to the status of the worker s claim. Review Denied Margaret Blackmore Review Commissioner January 28, 2014 Date 8