WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090087
OBJECTION BY: Employer
WORKER: Participated
EMPLOYER: Participated
REPRESENTATIVE: Employer
ISSUE
The employer objects to the adjudicator’s decision dated September 10, 2008, allowing entitlement to occupational noise induced hearing loss (NIHL).
HOW THE ISSUE ARISES
The worker was born May 15, 1942. The employer’s records confirm that he was hired in 1968, at the age of 26, as an Industrial Arts Teacher. He remained continually employed with them until his retirement in 1997, at the age of 55.
A claim for NIHL was established with the Workplace Safety and Insurance Board (WSIB) on March 27, 2008, based on an audiogram performed on the same date, confirming bilateral sensorineural hearing loss. The pattern of hearing loss was compatible with noise induced hearing loss.
The adjudicator, in the decision dated September 10, 2008 ruled that the worker had been exposed to sufficient levels of noise while employed as an Industrial Arts Teacher, to meet the requirement as outlined under Workplace Safety and Insurance Board (WSIB) policy.
On May 3, 2009 the employer representative wrote to the WSIB objecting to the September 10, 2008 decision explaining that the decision was premature and not based on all the evidence. Noise level tests from 1999, 2002 and 2004 were attached for review. She asked the adjudicator to reconsider her decision.
As the adjudicator was unable to reverse her decision, the claim file was referred to the Appeals Branch in order to consider the employer’s objection to the allowance of this claim.
The employer’s objection to the allowance of this claim is therefore the issue under appeal.
AUTHORITY
11-01-03 Merits and Justice
16-01-04 Noise Induced Hearing Loss On/After January 2, 1990
RESOLUTION METHOD AND PROCESS
The employer representative submitted a 60-Day Decision Option form dated June 8, 2009. By completing this form, the representative is aware the appeals resolution officer will provide a final decision of the Workplace Safety and Insurance Board (WSIB) based on the information on record and any additional information submitted with the objection form.
The worker was advised of the objection issue and the employer’s preferred method of resolution.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision in this claim, I have reviewed and considered the file evidence in the context of the relevant legislation and WSIB policy. The following is a summary of my observations and assessment.
In considering a worker’s entitlement to WSIB benefits, a decision maker is mandated to have regard for WSIB legislation and related policy.
According to WSIB policy document 16-01-04:
Noise-induced hearing loss (NIHL) is a permanent loss of hearing in both ears resulting from sensorineural (inner ear) damage due to prolonged, continuous, hazardous noise exposure.
Workers with occupational NIHL that is sufficient to cause a hearing impairment may be entitled to benefits. Entitlement to health care and rehabilitation benefits begins with a hearing loss of 22.5 dB in each ear when the hearing loss in the 4 speech frequencies (500, 1000, 2000, and 3000 Hertz) are averaged. The following is persuasive evidence of work-relatedness in claims for sensorineural hearing loss
- continuous exposure to 90 dB(A) of noise for 8 hours per day, for a minimum of 5 years, or the equivalent
and
- a pattern of hearing loss consistent with noise-induced sensorineural hearing
A presbycusis (aging) factor of 0.5 dB is deducted from the measured hearing loss (averaged over the 500, 1000, 2000, and 3000 Hz frequencies) for every year the worker is over the age of 60 at the time of the audiogram. The hearing loss that remains after the presbycusis adjustment is then used to determine entitlement to benefits. Entitlement to health care and rehabilitation benefits is available when the adjusted hearing loss is at least 22.5 dB in each ear.
The minimum hazardous noise exposure of 90 dB(A) for 8 hours per day for 5 years has the following equivalencies:
84 dB(A) for 40 years
89 dB(A) for 7 years
85 dB(A) for 28 years
91 dB(A) for 3.5years
86 dB(A) for 20 years
92 dB(A) for 2.5 years
87 dB(A) for 14 years
93 dB(A) for 1.8 years
88 dB(A) for 10 years
94 dB(A) for 1.25 years
NIHL does not normally develop in less than 1.25 years.
The calculation of equivalent daily hazardous noise exposures is based on a 5 dB doubling rule as follows:
Sound level in decibels
Duration - hrs. /24 hr. day
88
12
90
8
92
6
95
4
97
3
100
2
102
1.5
105
1
110
0.5
115
0.25
Since individual susceptibility to noise varies, if the evidence of noise exposure does not meet the above exposure criteria, claims will be adjudicated on the real merits and justice of the case, having regard to the nature of the occupation, the extent of the exposure, and any other factors peculiar to the individual case.
As previously noted, both the employer and worker confirm that the worker was hired in 1968, at the age of 26, as an Industrial Arts Teacher. He remained continually employed in this position until 1997, when he retired at the age of 55, following almost 30 years of employment.
It is the employer’s position that based on noise level studies performed in 1999, 2002 and 2004 entitlement to occupational NIHL should be denied as there is insufficient exposure to meet the intent of the WSIB policy.
The noise level study for 1999 revealed an average sound level exposure of 92.9 decibels (dB), with only very brief exposure time to over 115 dB. The 2002 noise level study revealed an average sound level exposure of 91.9 dB, with brief exposure time to 110.7 dB. The 2004 noise level study revealed an average sound level exposure of 88.4 dB, with “instantaneous sound levels” over 115 dB. The employer representative asks that these studies be used in order to confirm that the worker was not exposed to sufficient noise to have caused occupational NIHL.
It is the worker’s position that for nearly 30 years, from 1968 to 1997, or from age 26 to age 55, he was exposed to table saw, thickness planar and other machinery related to woodworking including power tools.
I note that Dr. Robichaud, Otolaryngology report of March 27, 2008 confirms that the worker “complains of a bilateral hearing loss that is progressive over years”. The worker confirms that there was no ear protection available. He has no history of recreational noise exposure. It was confirmed medically that the worker has a bilateral noised induced pattern of hearing loss.
The WSIB Audiologist opined in memo 3 that based on all of the available information, “the pattern of hearing loss is consistent with NIHL”.
The employer representative indicates in their letter dated May 3, 2009 that the school board has located noise level testing from 1999, 2002 and 2004. They add that “we have searched but have been unable to locate testing done prior to 1999 …” Based on my review of the employer’s submitted readings, I find it interesting to note that even between 1999 and 2004, the sound level readings had gradually decreased. One could then assume that had readings been available starting from 1968, or 30 years earlier, the readings may indeed have been substantially higher as there were little to no sound barrier protection available on equipment at that time.
It is my finding, based on the available pertinent information, that it is more likely than not that the worker’s hearing loss, which is consistent with a NIHL was correctly allowed. I do not find any evidence to support that there was any other cause that can be attributed to the worker’s hearing loss.
The employer may refute the charging of their firm if they can produce a pre-employment audiogram which is considered to be valid. The employer is not charged if it is demonstrated that the worker’s hearing had not deteriorated from the time the worker commenced employment with that company. The employer may also refute this charge if it can be confirmed that the injured worker was not exposed to hazardous noise in their employment.
No evidence has been presented of a pre-employment audiogram. Although the worker was not exposed to noise for an entire eight hour day, based on the information provided by the employer, I am satisfied that taking into account the equivalency chart, the worker was employed in hazardous noise, sufficient to make a significant contribution to his noise induced hearing loss.
CONCLUSION
In considering all of the available information, I conclude on the basis of my examination of the evidence that the worker was exposed to hazardous noise while employed as an Industrial Arts Teacher between 1968 and 1997. Entitlement to occupational NIHL was correctly allowed in accordance with the intent of the WSIB policy.
The employer’s objection is therefore denied.
DATED July 23, 2009
S. Bennett
Appeals Resolution Officer
Appeals Branch