WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090097
OBJECTION BY: Worker
EMPLOYER: Participated
REPRESENTATIVES: Non
ISSUE
The worker maintains his hearing loss and tinnitus is the result of his occupational noise exposure and he meets the criteria for entitlement to compensation benefits under operational policy 16-01-04 “Noise-Induced Hearing Loss, On/After January 2, 1990.”
HOW THE ISSUE ARISES
The worker registered a claim for noise-induced hearing loss (NIHL) and left-sided tinnitus in July 2008. He was 75 years old and had been retired since 1993. He had been a sheet metal worker from 1948 until 1969 and a construction supervisor and inspector with the employer from 1969 to 1993. The employer confirmed his employment and acknowledged that he had been exposed to noise when employed with the employer.
Operational policy 16-01-04 “Noise-Induced Hearing Loss, On/After January 2, 1990” indicates that the following is persuasive evidence of the work-relatedness of 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 on the audiogram that is consistent with the pattern typically associated with NIHL.
For the WSIB’s purposes, the degree of hearing loss is measured using the readings at the 500, 1000, 2000, and 3000 Hz. frequencies on the audiogram.
Because hearing tends to decline with age, the policy also calls for the deduction of a presbycusis (aging) factor of 0.5 dB from the measured hearing loss for every year a worker is over the age of 60 at the time of his or her audiogram. The presbycusis adjustment is intended to factor out the effect of aging on hearing loss. The hearing loss that remains after the presbycusis adjustment is then used to determine entitlement to benefits for NIHL.
Entitlement to health care benefits (i.e., a hearing aid) begins when the average hearing loss after the presbycusis adjustment is at least 22.5 dB in each ear.
Entitlement to non-economic loss (NEL) benefits begins when the average hearing loss after the presbycusis adjustment is at least 26.25 dB in each ear or alternatively 25 dB in the better ear and 32.5 dB in the worse ear. Any hearing loss that is less than these minimum levels is considered within normal limits and does not appear in the permanent impairment rating schedule that the WSIB uses, American Medical Association, Guides to the Evaluation of Permanent Impairment, Third Edition (Revised)
The worker was 75 years of age at the time of his July 2008 audiogram. He was 15 years over the age of 60. Therefore, his presbycusis adjustment was calculated as follows:
15 years X 0.5 dB= 7.5 dB
Based on the readings on the July 18, 2008 audiogram, his presbycusis-adjusted hearing loss was:
21.25 dB – 7.5 dB= 13.75 dB in the right ear
27.5 dB – 7.5 dB= 20 dB in the left ear
The adjudicator concluded that the worker met the noise exposure criterion of the policy but, after the presbycusis-adjustment to account for the effect of aging upon his hearing, he did not meet the minimum threshold degree of hearing loss to qualify for entitlement to health care benefits or NEL benefits. The portion of his hearing loss that was attributable to occupational noise exposure was considered within normal limits. Also, since the worker was no longer exposed to occupational hazardous noise, any future deterioration in his hearing would not be considered work-related. See letter dated January 14, 2008.
The worker objected to this decision. He appeared to misunderstand the adjudicator’s letter. In his response, he maintained that “all the damage to my left ear was done when I was in the Sheet Metal Trade from 1948 to 1969 for a total of 21 years.” He commented that he had a lot more noise exposure than the 5 years the adjudicator had mentioned in her letter. See his undated letter received at the WSIB on April 28, 2008.
From the file record, it does not seem that the adjudicator tried to clear up the misunderstanding. Instead, she wrote to him and told him she was unable to alter her decision. See letter dated June 30, 2009. The worker continued to object to her decision. Another adjudicator took over the case and replied that she was unable to reconsider the previous decision. She referred the objection to the Appeal Branch. See letter dated November 9, 2009.
AUTHORITY REFERENCE
Operational policies
16-01-04 “Noise-Induced Hearing Loss, On/After January 2, 1990”
16-01-08 “Tinnitus”
ASSESSMENT OF EVIDENCE AND SUBMISSIONS
The worker chose the 60 day paper review option. This means he wants the appeals resolution officer to make a decision within 60 days based on the information contained in the file record and any new evidence he attaches to the 60 day decision option form. The worker did not attach any additional evidence but commented that his hearing is deteriorating “as a result of damages that occurred during the time that I spent in the sheet metal trade.”
The employer signed and returned a participant form that indicated it wanted to participate in the review of the worker’s objection. However, I did not contact the employer for any submissions. I reviewed the file record but found there was no basis to alter the adjudicator’s decision. The reasons are as follows:
The adjudicator accepted that the worker was exposed to occupational hazardous noise and that he met the minimum noise exposure criterion outlined in operational policy 16-01-04. The minimum amount of occupational noise exposure that a worker has to have to meet the noise exposure criterion of the policy is five years of continuous exposure to 90 dB(A) of noise. More than likely the worker had more than five years’ occupational exposure given that he was in the sheet metal trade. The adjudicator agreed with the worker that he had been exposed to occupational hazardous noise over the course of his working life. This was not the reason she denied his claim.
The basis of the denial stemmed from the fact that the current degree of his hearing loss is likely due to two causes, occupational noise exposure and aging. These are both high frequency sensorineural losses and have similar effects on hearing.
In order to account for the effect of aging or presbycusis upon hearing acuity, operational policy 16-01-04 requires WSIB decision-makers to adjust the hearing loss calculations to account for this effect in the manner previously outlined under the section entitled “How the Issue(s) Arise”.
The WSIB calculates the hearing loss by averaging the readings at the 500, 1000, 2000 and 3000 Hz. frequencies on the audiogram. According to the WSIB’s audiology consultant, the worker’s average loss in the right ear before the presbycusis adjustment was 15+20+25+25 = 21.25 dB. However, after the presbycusis adjustment, the hearing loss was 21.25 dB – 7.5 dB= 13.75 dB.
The worker’s average loss in the left ear before the presbycusis adjustment was
15+15+20+60 = 27.50 dB. After the presbycusis adjustment, the hearing loss was
27.50 dB -7.5 dB = 20 dB.
To meet the minimum degree of NIHL to qualify for health care benefits, the worker had to have a hearing loss of 22.50 dB in each ear after the presbycusis adjustment. However, his presbycusis-adjusted loss was only 13.75 dB in the right ear and 20 dB in the left ear.
Although the worker’s actual hearing loss was greater than 13.75 dB in the right ear and 20 dB in the left ear, not all of his hearing loss is noise-related. A portion of his hearing loss is also related to aging. The NIHL portion of his hearing loss was not severe enough for him to qualify for any benefits under the criteria outlined in the relevant policy.
In addition, the worker said he had experienced left-sided tinnitus since about 1998. However, tinnitus can have many causes. This is the reason that WSIB policy requires an accepted claim for NIHL before a WSIB decision-maker can recognize tinnitus as related to occupational noise exposure. Because the worker does not have a recognized claim for NIHL, his claim for tinnitus cannot be recognized as related to occupational noise exposure.
The worker maintains that his hearing continues to deteriorate and that this deterioration is the result of his previous occupational noise exposure. However, the currently accepted scientific consensus on the matter is that NIHL cannot deteriorate in the absence of continued noise exposure. The worker has been retired since 1993 and has not been exposed to occupational hazardous noise since then. If his hearing is continuing to deteriorate in the absence of additional occupational noise exposure, it is likely due to some other cause, probably presbycusis.
In summary, although the worker was exposed to hazardous occupational noise, not all of his hearing loss is due to noise exposure. A portion of it is due to aging. However, when the effect of aging is factored out, the remaining hearing loss that can be attributed to his occupational noise exposure is relatively minor and does not qualify him for any health care or NEL benefits. Tinnitus has many causes not all of which are attributable to noise exposure. If he does not qualify for benefits for NIHL, the tinnitus he experiences cannot be attributed to his occupational noise exposure. Because the worker has retired and is no longer exposed to occupational noise exposure, any deterioration in his hearing that occurs after he is no longer exposed to occupational noise cannot be attributed to occupational noise.
CONCLUSION
The worker does not meet the criteria under operational policy 16-01-04 to qualify for health care and NEL benefits.
The worker does not meet the criteria under operational policy 16-01-08 for recognition of his left-sided tinnitus.
Since the worker retired and left occupational noise exposure in 1993, any deterioration that has occurred in his hearing since his audiogram of July 18, 2008 cannot be recognized as work-related (i.e., related to ongoing occupational noise exposure).
The worker’s objection is denied.
DATED December 23, 2009
R. Nestereiczyk
Appeals Resolution Officer
Appeals Branch