WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100088
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING LOCATION: N/A
PARTICIPANTS: Worker
ISSUE
The worker is objecting to the December 5, 2008 Non-Economic Loss (NEL) quantum decision, awarding him an 11 per cent permanent impairment award for Noise Induced Hearing Loss (NIHL).
HOW THE ISSUE ARISES
In June 2008, a claim for NIHL was established for this worker upon receipt of his completed Worker’s Report Occupational Noise Induced Hearing Loss form. The worker was 59 years old at the time of his claim for benefits and had been employed since 1972 as a machine operator – he retired in April 2008.
While working as a machine operator, the worker was exposed to noise from rolling machines, press machines, exhaust fans, and other machines used in his general working vicinity. It was determined the worker’s pattern of hearing loss was consistent with NIHL – the operating area accepted the worker had been exposed to sufficient noise to meet the criteria for entitlement to occupational NIHL. The worker was also granted a related NEL assessment.
Following the NEL assessment, the worker was awarded an 11 per cent permanent impairment award for his bilateral NIHL. The worker objected to the NEL quantum on the basis the award did not reflect the degree of his impairment.
Upon receipt of the worker’s completed Objection Form, the decision relating to the NEL quantum remained unchanged and the worker’s file was referred to the Appeals Branch for further review.
AUTHORITY
Chapter 9, “Ear Nose Throat and Related Structures”, American Medical Association, Guides to the Evaluation to Permanent Impairment”, Third Edition (Revised), (“AMA Guides”)
Operational Policy Manual documents:
16-01-04 Noise-Induced Hearing Loss, On/After January 2, 1990
16-01-08 Tinnitus, Post January 2, 1990
RESOLUTION METHOD AND PROCESS
The worker concurred with a decision based upon the file information. The employer is not participating 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.
Review of the file medical information confirms several audiograms have been submitted to file. Given that the medical information supports the worker’s hearing was worse in 2008 than in previous years, the last audiogram submitted to file, i.e. that of June 2008, will be referenced for the purposes of the NEL assessment – the NEL quantum would also therefore be greater when using this later medical report.
According to Chapter 9 of the AMA Guides, the NEL percentage impairment for NIHL is calculated in the following manner:
The readings in the four speech frequencies for each ear are added up;
These amounts are translated into a binaural percentage impairment using Table 3 of the AMA Guides; and
The binaural percentage amount is translated into a “whole person” impairment percentage using Table 4 of the AMA Guides.
The June 7, 2008 audiogram recorded the following measurements:
Right Ear Left Ear
500 Hertz 10 10
1000 Hertz 20 20
2000 Hertz 60 85
3000 Hertz 90 105
Total: 180 220
The total right-sided loss was therefore 180 dB and the total left-sided loss was 220 dB. As indicated by Table 3 on pages 176-177 of the AMA Guides, these readings translate into a binaural hearing impairment of 32.5%.
This figure is then used to determine the “whole person” impairment that has resulted from the hearing loss using Table 4 of the AMA Guides on page 178. According to Table 4, a binaural hearing impairment of 32.5% translates into an 11 per cent impairment of the whole person.
However, in addition to the above impairment, I note the specialist’s July 11, 2008 report supports the worker has had tinnitus in both ears for a number of years. I find the worker is therefore entitled to a permanent impairment award for tinnitus, in accordance with Policy 16-01-08.
Policy 16-01-08, Tinnitus, Post January 2, 1990, also records the following in part with respect to the NEL quantum to be awarded for tinnitus:
“Permanent impairment Permanent impairment from tinnitus is assessed using the rating schedule prescribed in section 18(1), O.Reg 175/98. According to the prescribed rating schedule, tinnitus is not measurable, and therefore, the physician "should assign a degree of impairment that is based on severity and importance, and is consistent with established values." A permanent impairment of 2% for tinnitus is judged to be consistent with established values. Permanent impairment ratings for NIHL and tinnitus are added using the AMA combined values chart.”
According to the above policy, the maximum award to be granted for tinnitus is 2 per cent. Consequently, I find the worker is entitled to a 2 per cent NEL award for tinnitus. This award must then be added, using the Combined Values Chart of the AMA Guides, to the 11 per cent award for NIHL, which results in a combined whole person impairment award of 13 per cent.
CONCLUSION
I conclude the 11 per cent NEL quantum for the worker’s NIHL was correctly calculated. However, the worker is also entitled to a two per cent NEL quantum for tinnitus, which, when combined with his previous 11 per cent NIHL award, results in a whole person impairment award of 13 per cent. The worker’s NEL quantum is therefore to be increased to 13 per cent.
The worker’s objection is therefore allowed in part.
DATED March 30, 2010
L. Diaz
Appeals Resolution Officer
Appeals Branch