WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100027
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative, Employer
HEARING LOCATION: teleconference
DATE: January 22, 2010
WITNESS: Co-worker
ISSUE
Entitlement to occupational noise induced hearing loss.
HOW THE ISSUE ARISES
The worker was born in 1944. He was employed in the parts department of an automobile dealership from September 1973 to February 2006 when he retired. A claim for occupational noise induced hearing loss was established with the WSIB on June 16, 2006 upon receipt of a Worker’s Report Occupational Noise Induced Hearing Loss.
The worker related his hearing loss to his exposure to the noise from the service and body shop areas which were beside his work area. He was exposed to the noise from the tools including; chisels, air wrenches and pneumatic cutting tools.
There was a discrepancy in the noise exposure information provided by the worker and the employer. The worker maintained when he first started working with the employer there were 4 mechanics, and now there is only 1. He stated the parts area was not sound proof, and the roof top was open to his work area. He would also have to enter the shop as needed on a daily basis. The shop was later modified to meet the standards of the car manufacturer, and is not the same as it was.
The employer stated that the worker worked in an enclosed office, with a sound barrier between him and the shop area. Although they had not done noise level testing, they stated that the parts department did not have high noise levels. They also noted that the worker was involved in a church band.
An ear, nose and throat (ENT) report from Dr. Ishak dated June 5, 2006 notes a normal ear examination and provides a diagnosis of bilateral sensorineural hearing loss consistent with possible noise exposure. The audiogram dated June 5, 2006 demonstrated an asymmetrical hearing loss of 54 decibels in the right ear and 42.75 decibels in the left ear.
The WSIB audiologist reviewed the audiogram and provided their opinion as outlined in memo #4. They commented that the pattern of hearing loss in the left ear is compatible with a noise induced etiology. The right ear low frequency asymmetry is not typical of occupational noise damage. The left ear should be used to calculate the occupational noise component.
The WSIB hygienist conducted a noise exposure assessment dated August 1, 2006. The assessment was based on noise level surveys conducted in BC, which confirmed that the parts department workers at car dealerships would not have been exposed to noise in excess of 83 decibels.
The adjudicator considered this information and denied entitlement as per the August 30, 2006 letter. On behalf of the worker the representative objected and completed an objection form dated April 18, 2008. The claim was referred to the Appeals Branch on November 18, 2008.
I contacted the worker’s representative to discuss the appeal issues and method of resolution. During this process a new representative was assigned. We initially agreed to resolve the appeal through written submissions, and the employer elected to participate in the appeal.
The worker’s representative provided a submission dated July 16, 2009 enclosing a witness statement and diagram of the parts, auto body, and service departments. A copy of this submission was sent to the employer.
The employer provided a submission dated September 14, 2009 including; a letter outlining their position, a notice dated September 23, 1994 from the health and safety committee regarding the use of personal protective equipment, and diagrams of the dealership after the renovations.
In reviewing these submissions, I determined that an oral hearing would be required to obtain testimony and clarify the discrepancies in the information provided. A teleconference hearing was arranged.
AUTHORITY REFERENCE
Operational Policies:
16-01-04 Noise Induced Hearing Loss On or After January 1, 1990
11-01-03 Merits and Justice
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
In reviewing the issues before me, I have considered all of the information in the claim file record, the medical evidence, the workplace parties’ positions, the testimony at the hearing, and the relevant policy. I conclude that the balance of evidence supports the worker’s objection.
Worker’s Testimony
The worker provided testimony regarding his work history, work duties, noise exposure, outside activities, and the onset of his hearing loss. He testified in a straightforward manner, consistent with the claim file record.
The worker had worked for the employer for 32 years, until he retired in 2006. He was a shipper/receiver and counterman, and worked in the parts department. He described his work environment as being quite noisy. He explained that all of the doors to the parts department were open to allow cool air to circulate. He would be exposed to the noise from the body shop and service department including; air guns, chisel guns, and compressors.
The worker denied any outside noise exposure or noisy hobbies. He is not involved in woodworking, snowmobiling, hunting, or any other noisy activities. He has been involved in a bible study group for the last 12 years that meets every Monday. This involves singing, and he is a singer. He does not play any musical instruments. They do go out to senior homes to perform, which involves him singing with a microphone and someone playing a guitar. It is not very noisy, they do not practice, and he does not feel this is a factor in his hearing loss.
The worker cuts his grass using a gas powered mower about twice per month. He also cuts the grass at the church every second week. He has been doing this for the past 4 years, which takes about one hour. He wears ear muffs while grass cutting.
We reviewed the worker’s diagram of the floor plan, and he confirmed that this was the set up for 31 years. The renovation of the dealership was done in 2005. He explained that all the doors were open to the body shop and service area, so the noise entered the parts area.
As well the wall between the parts department and service area did not go right to the ceiling, and there was about a one foot gap at the top. He also noted that his desk was right beside the wall which enclosed the compressor to operate the air tools.
The worker stated that there were 3 other workers in the parts department. At times you could talk normally, but sometimes you would have to speak loudly to be heard. It was also difficult to hear people on the phone. The worker stated it was very busy in the early years with about 6 people in the body shop and 12 – 14 mechanics in the service area. The staff was cut down about 5 years ago. The parts area was not a mandatory hearing protection area, and no signs were posted. He was not aware of any noise level testing being done there. He did not wear hearing protection, and did not know if the mechanics did.
The worker estimated that on some days he would spend about 2 – 3 hours in the body shop and service area. This would depend on whether he was unloading parts in these areas, or delivering parts to the mechanics. This time varied, and it is hard to estimate how many hours per day he would spend. However, on further questioning he estimated his time spent in these areas would be 2- 3 hours over the course of a day.
The worker was aware of the Health and Safety Committee, and confirmed that he did not make any complaints about the noise. He also confirmed that the compressor was located under the meeting room. He was asked if he was aware that the walls were load bearing and fire walls, and the doors had to be shut. The worker stated that the doors were always open. He also confirmed that the technicians may come and get their own parts, but he always delivered the larger parts. He also stated that the orders came in every day, and he would receive them in the service area.
The worker explained that the compressor was enclosed in a wall, and you could access it via the body shop. His desk was right beside this wall, and he could hear the compressor running. It would run on and off. The other compressor was enclosed in the same way, and you accessed it through the tool room in the service department.
He was also asked about the open area in the wall dividing the parts and service departments. Was he aware there may have been a vent, but this was a fire wall and was not open. The worker maintained there was a space at the top of the wall. The parts department had a partial upper floor open to the main floor, and when on the upper floor you could see the gap in the wall. He confirmed that he was not aware of any MOL visits, or noise violations. He also confirmed he never requested ear plugs. The worker only worked for the employer for one year after the renovations. The parts department was far less noisy, and the doors were kept closed.
The worker is aware that a lot of the retired employees now complain of hearing loss. He is not aware of any claims with the WSIB, and he has not spoken to them about his claim. He confirmed that he is personal friends with the two witnesses, and does travel with them. The other witness mentioned in the submission is a personal friend, and does wear a hearing aid. He is retired, and does not have a WSIB claim.
The worker stated that his wife kept telling him that he should get his hearing checked. He did not really notice the problem himself. After he retired in 2006 they were at the mall and he had his hearing checked, and was told he needed hearing aids. His doctor sent him to the ENT specialist.
When he saw the ENT specialist, he first said his hearing loss was hereditary. However, no one in the family has a hearing loss. He does have a step brother who worked at a steel mill and has hearing loss and a claim with the WSIB, but he is not a blood relative. He then made the connection between his noise exposure at work and his hearing loss. He is not sure if the doctor told him this, or he may have asked him. The worker does not recall having a history of ear infections.
The worker has been wearing hearing aids in both ears since 2007. He paid $2600 and the Ontario government paid $1000 of this. They help somewhat, but can be noisy and there is a screeching noise at times. The worker feels that the only explanation for his hearing loss is his noise exposure at work.
Witness Statement
The witness testified in a credible, straightforward manner. She has known the worker for 45 years and they are good friends. They worked together for 37 years at the employer. She worked in the office performing different jobs throughout the years.
She provided her opinion that the Health and Safety Committee were not really that active. They had meetings, but nothing ever came of them. She is not sure why. She was aware that they took minutes and had to conform to health and safety requirements. She does not recall having health and safety training, but may have read WHIMIS information.
She stated that the body shop and service departments were very noisy, especially in the earlier years when there was a lot of activity. She also confirmed that the renovation of the dealership occurred in 2005. She stated that it was noisy in the parts department. The noise came from the body shop and service departments including compressors, and hammering. You could not talk in a normal voice when the compressors were running and had to wait for a lull to be heard. It was still difficult to hear even when you raised your voice. She could not recall if other employees complained about the noise.
She explained that she started working there in 1969, and it was very busy up to 2002 or 2003 when things slowed down and there were less employees. There are now only 1/3 of the employees that there were. There used to be 15 mechanics, now there are 5 or 6, and there used to be 6 body shop mechanics and there are now only 1 full time and 1 part time.
Her office was beside the parts department, and it was sometimes noisy. She would go to the parts department looking for invoicing, and confirmed that it was noisy, but not noisy every time. She does not believe that the wall beside the service department went right to the ceiling, but admitted she was not 100% sure.
Worker’s Position
The worker’s representative outlined their position in his opening and closing statements. He noted that the June 6, 2006 medical report confirms the diagnosis of NIHL. He noted that the employer’s diagram is after the 2005 renovation, and is not reflective of the worker’s work area prior to this. He questioned why the employer did not provide a copy of the old floor plan.
He also noted that the WSIB hygienist exposure assessment confirms that noise levels for service technicians of 87 and 90 decibels met and are close to the noise exposure criteria. It is his position that the worker’s 30 plus years of employment close to this environment resulted in the worker’s hearing loss. There is no evidence to suggest that the hearing loss could be attributed to anything else. The wearing of hearing protection was not mandatory, and there is no evidence that it was enforced.
He feels the worker’s testimony was credible, and was supported by the witnesses. The worker was a long term employee with a good record. He feels that based on the evidence the worker’s claim for NIHL should be allowed for health care and a non-economic loss (NEL) award if warranted. If it is determined that the evidence is equal in weight, the benefit of doubt should be afforded in favour of the worker.
Employer’s Position
The employer outlined his position in his opening and closing statements. It is his position that the parts department is the quietest place in the dealership, and is surrounded by load bearing walls with no openings. He also disagrees with the duration of time the worker would have spent in the service areas.
There have not been any noise complaints in 41 years and no health and safety concerns over noise. He is sure he would have been notified if the noise interfered with phone conversations. The compressors are not loud and do not interfere with the twice weekly meetings held in the meeting room. He agrees that the worker was a good employee and had no problems with him. However, he disagrees with his claim for NIHL.
Analysis
As noted in the policy, in order to grant entitlement to noise induced hearing loss, certain criteria must be met. The worker must have been exposed to noise in excess of 90 decibels, 8 hours a day, for a period of at least 5 years, or the equivalent. The equivalencies are explained in the policy.
The policy also notes that since individual susceptibility to noise varies, if the evidence of noise exposure does not meet the 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 well, the audiometric testing must confirm a hearing loss of at least 22.5 decibels bilaterally in the four speech frequencies, demonstrate a pattern consistent with noise exposure, and an ENT report must confirm a diagnosis of sensorineural hearing loss (NIHL). It is accepted that any deterioration in a worker’s hearing after they are removed from the noise exposure is not considered work related. Therefore, the audiometric testing performed closest to the noise exposure is used to calculate occupational noise induced hearing loss.
In this case, the medical evidence supports that the worker has a sensor-neural hearing loss consistent with possible noise exposure, as noted in the ENT report. The WSIB audiologist provided their opinion that the right ear low frequency asymmetry is not typical of occupational noise damage, but the left ear pattern of hearing loss is compatible with noise exposure. Therefore, the left ear should be used for calculation purposes.
The question before me is whether the worker had sufficient noise exposure to meet the policy criteria. The worker has testified that his work space in the parts department was very noisy and was open to the body shop and service areas via doors and an opening in the wall. He also testified that he had to spend approximately 2 – 3 hours each day in the body shop and service area performing functions of delivering parts and receiving orders. His desk was also located beside the wall enclosing one of the compressors.
The statement from the witness contained in the worker’s representative’s submission supports the worker’s testimony. As well, the other witness provided sworn testimony at the hearing which also supported high noise levels in the parts department, most notably in the earlier years when the employer was busy and there were more service staff.
The worker provided a diagram of his work area, which confirms it was directly beside both the body shop and service area. The worker testified that the doors were always open, and the one wall had a space at the top. The employer disagrees with this. However, it is reasonable to assume that the doors would be open regularly, as there would have been high traffic between these areas in the course of a work day. As well, it is also reasonable to assume the worker would spend some of his day in these areas. He testified between 2 – 3 hours. The employer did not provide a drawing of the area pre-renovation, and confirmed that noise level surveys have not been done.
I have considered the employer’s position that the parts department was the quietest area in the dealership. In reviewing the current configuration, it is noted that the floor plan has changed drastically. The parts department is still beside the service area, but on the other side is the customer waiting area. The body shop is now on the other side of the service area. However, for the majority of the worker’s employment (31 years), the parts department was directly beside the auto body and service areas, as well as two compressors.
I have considered the occupational hygiene noise exposure assessment, which is based on the BC Worker’s Compensation Board surveys of the automobile service industry. I have also reviewed the noise survey results which are available on the internet.
The WSIB hygienist noted that the worker’s overall full shift noise exposure was probably not more than approximately 83 decibels. In reviewing the BC surveys, it is noted that auto body technician’s noise exposure ranged from 83 – 96 decibels, and service mechanics ranged from 77 – 102 decibels. A parts man ranged from 77 – 83.
In considering all of this information, and the true merits and justice of this case, I find that the balance of evidence supports that the worker’s hearing loss is compatible with his occupational noise exposure. The worker worked in this environment for 31 years, and I accept his testimony that it was very noisy especially prior to 2002, and prior to the renovation in 2005. The BC survey results support that the worker’s noise exposure at times could be as high as 102 decibels when working in the service and body shop areas.
In considering the nature of his occupation, the extent of his noise exposure, and his individual susceptibility to noise, I find that the worker’s cumulative noise exposure over 31 years is sufficient to meet the noise exposure criteria.
The worker retired in February 2006 and sought medical attention for his hearing loss in June 2006. There was no delay in seeking medical attention which would also support the noise induced etiology. It is not unusual for there to be a significant gap in years between removal from noise exposure and the worker seeking medical attention for hearing loss.
I also accept the opinion of the WSIB audiologist, and find that the left ear hearing loss should be used for NIHL calculation purposes. The hearing loss in the left ear is 42.75 decibels, which is sufficient for entitlement to health care benefits, and a NEL assessment.
CONCLUSION
I conclude that the balance of evidence supports that in considering the true merits of the claim the worker’s noise exposure is sufficient to meet the criteria, and the pattern of hearing loss in the left ear is compatible with this exposure. Entitlement is accepted for health care, and a non-economic loss (NEL) award. The left sided loss of 42.75 decibels should be used to calculate the NEL award.
The worker’s objection is allowed.
DATED January 28, 2010
D. McParland
Appeals Resolution Officer
Appeals Branch