WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100081
OBJECTION BY: Worker
EMPLOYER: Not Participating
PARTICIPANTS: Worker
ISSUE
The worker objects to the adjudicator’s October 30, 2009 decision which denied entitlement to a Non-Economic Loss (NEL) award for Noise-Induced Hearing Loss (NIHL).
HOW THE ISSUE ARISES
In October 2009, this now 51 year old former dietary aid worker’s claim for NIHL was accepted for health care benefits as it was determined there had been sufficient noise exposure on a cumulative basis to meet policy criteria.
Although the adjudicator initially accepted a related permanent impairment award, further to the October 16, 2009 decision, the permanent impairment was subsequently recanted two weeks later, according to the October 30, 2009 reconsideration. In the reconsideration letter, the adjudicator acknowledged the error, however, indicated it was necessary that his decision conform to policy requirements.
The worker objected to the above decision. Following receipt of the worker’s completed Objection Form, the decision to deny a NEL award remained unchanged and the worker’s file was referred to the Appeals Branch for further review.
AUTHORITY
Workplace Safety and Insurance Act:
Section 2(1)
Section 15
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision Making
16-01-04 Noise-Induced Hearing Loss, On/After January 2, 1990
RESOLUTION METHOD AND PROCESS
The worker requested a decision based upon the file information. The employer did not participate in the appeal.
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file, the applicable law and policy and for the arguments presented.
Although the worker argued she should still be entitled to a NEL award on the basis the adjudicator had indicated as much in the October 16, 2009 decision, I note the reconsideration decision which denied entitlement to a NEL award was issued within a couple of weeks of the original decision – the worker had still not received a NEL award. The decision relating to the provision of a permanent impairment award would still be required to conform to policy despite the original decision.
The file information supports two audiograms, i.e. June 9, 2009 and January 20, 2004, were submitted to file for review. Given that the operating area accepted exposure to hazardous noise from 1976 until 2002, I can only reference the January 20, 2004 audiogram for the purposes of this claim as progressive hearing loss from occupational noise exposure ceases when an individual is removed from noise levels potentially injurious to hearing.
The January 20, 2004 audiogram recorded the worker’s hearing loss as follows:
Right Ear Left Ear
500 Hertz 10 20
1000 Hertz 20 25
2000 Hertz 35 35
3000 Hertz 35 45
Sum: 100 125
Divided by 4: 25 31.25
Policy 16-01-04, Noise-Induced Hearing Loss, On/After January 2, 1990, records the following in part with respect to a permanent impairment:
“Permanent impairment Permanent impairment from sensorineural hearing loss is determined using the rating schedule prescribed in section 18(1), O.Reg 175/98. This rating schedule is the American Medical Association Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (AMA Guides). Those claimants whose hearing loss is sufficient to result in a permanent impairment benefit as recognized by the AMA Guides (at or above 26.25/26.25 dB or 25/32.5 dB in the better/worse ear, respectively) are referred for a Non-Economic Loss (NEL) determination. Average hearing losses are never rounded for permanent impairment calculations using the AMA Guides. For more information see 18-05-03, Determining the Degree of Permanent Impairment.”
The above policy requires a minimum bilateral hearing loss of 26.25 dB, or 25/32.5 hearing loss in the better/worse ear respectively for a permanent impairment award.
According to the January 20, 2004 audiogram, the worker has not met the criteria of a bilateral hearing loss of 26.25. She has also not met the criteria of 25/32.5 in the better/worse ear respectively for a permanent impairment award given the noted 25/31.25 measured loss. I note the difference in the worse ear is still relatively significant, measuring a difference of 1.25 dB. Given that the above policy indicates average hearing losses are never rounded for permanent impairment calculations using the AMA Guides, I find the evidence supports the worker has not met the policy criteria for the provision of a permanent impairment.
CONCLUSION
I conclude the worker is not entitled to a NEL award for her NIHL.
The worker’s objection is therefore denied.
DATED April 29, 2010
L. Diaz
Appeals Resolution Officer
Appeals Branch