WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090096
OBJECTION BY: Worker
EMPLOYER: Did not participate
REPRESTATIVES: Worker
HEARING: N/A
ISSUE
The worker maintains she developed noise-induced hearing loss (NIHL) as a result of her employment in Ontario.
HOW THE ISSUE ARISES
The worker is now sixty-one years old. This claim was established in December 2007 after the WSIB received a medical report from her family doctor indicating she had hearing loss which she attributed to noise exposure at her workplace.
Operational policy 16-01-04 indicates the following is persuasive evidence that sensorineural hearing loss is work-related:
continuous exposure to 90 dB(A) of noise for eight hours per day, for a minimum of five years, or the equivalent; and
a pattern of hearing loss consistent with noise-induced sensorineural hearing loss.
When NIHL appears on an audiogram it exhibits a particular pattern. This pattern must be present before entitlement can be considered. The WSIB calculates the degree of hearing loss by averaging the readings at 500, 1000, 2000 and 3000 Hz. frequencies on the audiogram.
Entitlement to health care benefits (i.e., hearing aids) begins when the bilateral loss is at least 22.50 dB. Entitlement to non-economic loss (NEL) benefits begins when the bilateral loss is at least 26.25 dB or alternatively, 25 dB in the better ear and 32.50 dB in the worse ear.
The worker indicated she had worked as a carton assembler with the employer since October 1, 1971. The employer confirmed her employment and provided sound surveys pertaining to its plant. The adjudicator concluded that the worker met the noise exposure criterion under operational policy 16-01-04.
The WSIB also received a series of reports from the ENT specialist. On December 15, 2005, he has seen the worker for symptoms of "lightheadedness", "spinning" and "a feeling like she was going to pass out" that had developed in the past month. The worker had told the specialist that she had experienced right-sided hearing loss for years as well as right-sided tinnitus, neither of which was associated with the dizzy spells. The specialist arranged for various tests.
He saw the worker again on February 23, 2006. The tests were normal. The worker had told him that her dizziness had almost completely resolved since he had last seen her. The specialist was not sure what had caused the dizziness. He diagnosed right-sided hearing loss that was causing her tinnitus. She was not a candidate for a hearing aid and he suggested other measures to help her cope with the tinnitus.
On May 10, 2006, the worker returned to see the specialist because her dizziness had recurred. The specialist noted that previous tests had been normal. However, the audiogram done in May 2006 was "quite different" than the one that had been done on the previous visit. It showed a moderate conductive loss in the right ear. The pure tone average did not match the speech reception thresholds suggesting that the test results were unreliable. The specialist indicated that, because of the two completely different audiogram results, he did not know what the worker's true hearing level was on the right side. This would significantly affect what the diagnosis would be. He made arrangements for a repeat audiogram using insert headphones but the outcome remains unknown. There are no more reports on file from the specialist until April 24, 2007 when the worker returned to see him again.
According to the specialist, the audiogram done in April 2007 showed normal and unchanged hearing in the left ear. The right-sided hearing had "improved" since her previous visit. He sent her for a hearing aid assessment.
The WSIB's audiology consultant reviewed the various audiograms that had been submitted to the WSIB and commented that they showed "discrepant results for the right ear." She recommended cortical testing to more accurately establish the true hearing levels. Unlike the previous audiograms, cortical testing would measure the "non-behavioural" responses of the brain to auditory stimulus.
The cortical testing occurred on August 7, 2008 and was subsequently reviewed by the WSIB's audiology consultant. She commented that this time there was agreement between the cortical and audiometric tests. In addition, the testing provided bone conduction readings which are more accurate than air conduction readings. The audiology consultant concluded that the worker had a profound right-sided loss that was not noise-induced whereas the hearing was essentially normal in the left ear. The average loss in the left ear was only 15 dB. See memo 8.
NIHL is usually bilateral and not unilateral as in the worker's case. It is also more or less the same in each ear since ambient noise affects both ears to more or less the same degree. However, in the worker's case, the hearing loss was profound in the right ear but much less in the left ear. This was not typical of NIHL.
Since the right-sided hearing loss did not exhibit the pattern typically associated with NIHL, it was not possible to measure how much of this loss might have been affected by her occupational noise exposure. However, the left ear had been unaffected by the source that had caused the profound right-sided loss. Because ambient noise affects both ears to more or less the same degree, it was possible to evaluate any possible NIHL in the left ear and attribute the same degree of NIHL to both ears. However, the hearing in the left ear turned out to be within normal range. The average loss was only 15 dB. Thus, it was only possible to attribute a bilateral loss of 15 dB to occupational noise exposure at work. This did not meet the minimum bilateral NIHL requirement of 22.50 dB to qualify for benefits under operational policy 16-01-04. The bilateral hearing loss attributable to occupational noise exposure was minimal.
The adjudicator wrote to the worker to advise her that her unilateral right-sided hearing loss was not the result of occupational noise exposure and she did not otherwise qualify for benefits based on the left-sided readings. See letter of September 10, 2008. The worker objects to this decision.
AUTHORITY REFERENCE
Operational Policies
16-01-04 "Noise-Induced Hearing Loss, On/After January 2, 1990"
16-01-08 "Tinnitus, Post-January 2, 1990"
ASSESSMENT OF EVIDENCE AND SUBMISSIONS
I reviewed the file record and spoke with the worker and her husband. The worker's husband commented that his wife had worked in a noisy factory for 36 years and other employees had been compensated for their hearing losses. He did not understand why his wife's claim was denied. After considering his comments, I find no basis to alter the adjudicator's decision. The reasons are as follows:
The issue in this case is whether the hearing loss is noise-induced. NIHL is sensorineural, bilateral and usually affects both ears to more or less the same degree. However, the pattern of hearing loss exhibited on the worker's audiogram is not typical of NIHL. She has a profound loss in the right ear but relatively normal hearing in her left ear. This is not typical of NIHL and cannot be explained by her occupational noise exposure. No doubt, she has hearing loss in her right ear but there is no evidence to show that it is the result of occupational ambient noise exposure.
She reportedly experiences tinnitus in her right rear. Tinnitus can have many causes. For these reasons, operational policy 16-01-08 calls for an accepted claim for NIHL before a WSIB decision-maker can draw the conclusion that the tinnitus is related to occupational noise exposure. In this case, because there is no evidence that the right-sided hearing loss is the result of occupational noise exposure, there are no grounds to conclude that the associated tinnitus is the result of noise exposure.
I make no finding concerning the origin of the dizziness as there is no relevant adjudicative decision on file to which the worker could object. It was not an issue before me.
CONCLUSION
There is no convincing evidence that the profound right-sided hearing loss and associated tinnitus is the result of occupational noise exposure in Ontario.
The worker's objection is denied.
DATED October 26, 2009
R. Nestereiczyk
Appeals Resolution Officer
Appeal Branch