WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100090
OBJECTION BY: Worker
EMPLOYER: Not Participating
PARTICIPANTS: Worker, Worker’s Representative,
HEARING LOCATION: N/A
ISSUE
The worker objects to the May 6, 2008 and December 9, 2008 adjudicator decisions denying entitlement for surgery for cochlear implants.
HOW THE ISSUE ARISES
This now 69 year old worker retired in 1995. An October 13, 2000 WSIAT decision accepted the claim for Noise Induced Hearing Loss (NIHL) and tinnitus. Following this decision a 12% Non Economic Loss (NEL) award was assessed. In 2008 the worker requested entitlement for cochlear implant surgery performed in August 2008. Noting the progressive hearing loss and absence from exposure since 1995 the request was denied.
AUTHORITY
16-01-03 – Occupational Noise Induced Hearing Loss
11-01-03 - Merits and Justice (Decisions Related to Occupational Disease)
RESOLUTION METHOD AND PROCESS
The worker representative requested a decision based on the evidence on record and submissions provided.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
In the August 12, 2009 letter the representative submits the worker’s “hearing deterioration was significant contributing factor related to his work related noise exposure and thus should be entitled to cochlear implants and the surgery and subsequent NEL reassessment”.
Given acceptance of entitlement for Noise Induced Hearing Loss and Tinnitus the issue in my view is appropriately framed as whether the August 2008 surgery was intended to address issues resulting from the compensable condition or symptoms arising from non-compensable factors.
The October 13, 2000 WSIAT decision noted the worker was employed as a truck driver from 1966 to 1985 and a cleaner from 1985 to 1996. The WSIAT decision concluded the worker worked in noise exposure to 1996 and accepted the claim on this basis. The Tribunal concluded the worker was entitled to a NEL reassessment based on this exposure. Based on the September 4, 1998 audiogram the worker was assessed a 12% combined value NEL (10% NIHL and 2% Tinnitus).
The September 1998 audiogram calculated the loss as 48.75dB right / 43.75dB left. Entitlement was also accepted for medical aid with the worker entitled to payment for hearing aids. On June 28, 2005 the health care provider reported the workers hearing had deteriorated and he could no longer hear from his hearing aids. Upgraded strength hearing aids were approved. March 2007 testing indicated further deterioration with another upgrade to the hearings aids accepted.
On January 18, 2008 the ENT in Timmins requested approval for cochlear implant surgery. The ENT reported the rapid decline in hearing noted in 2006 suggested a possible autoimmune inner ear disease. The consultant noted while such a condition normally responds to prednisone the worker had not responded to this treatment and he was therefore referred to Ottawa for cochlear implants. The surgery was performed in Ottawa on August 19, 2008.
A WSIB Audiologist reviewed the medical reporting and noted a steady decrease in hearing between 1999 and 2004 with a significant change noted June 28, 2005. The audiologist noted March 30, 2007 testing showed a loss of 100dB on the right and 71.25 on the left. The Audiologist noted the ENT had discussed a possible autoimmune inner ear disease but had not offered a final diagnosis for the cause of the further loss.
The Audiologist noted the research confirms occupational NIHL does not continue after removal from exposure. The Audiologist noted severe to profound loss is rarely a direct cause of noise exposure while many other non-occupational hearing disorders cause progressive and sudden loss. The Audiologist suggested there was no clear determination noise exposure ceasing in 1985 was the cause of the severe and profound loss for the worker. Finally, the Audiologist noted the extent of loss following retirement was far greater than the loss incurred while working in exposure.
With the exception of the Audiologist notation regarding exposure ending in 1985 (WSIAT accepted exposure to 1996) I consider the WSIB Audiologist’s comments consistent with my understanding of the literature and research regarding noise induced loss. As noted by the Audiologist the worker continued to experience significant deterioration in his hearing after work related noise exposure ended in 1996. Also as noted by the Audiologist there was an apparent significant deterioration prior to June 2005. Simply put, I do not find a significant change in the worker’s hearing loss prior to June 2005 consistent with the known effects of NIHL. On this basis I am unable to relate the resulting surgery to the previously accepted noise exposure.
Noting the representative submission I also consider it appropriate to review the issue as to whether the NIHL loss is to be accepted as a contributing factor to the need for surgery based on the previously accepted loss. While I would not argue this is possible, I do not consider there to be any evidence to suggest such a contribution is probable. I do not find the evidence to suggest that without the previous work related condition the worker’s hearing would have deteriorated to the point of requiring surgery.
Rather, based on the provisional diagnosis questioned by the ENT and the significant loss in 2005 I find it more probable than not this deterioration occurred as a result of non-compensable factors. Noting the severity of the condition it is probable this would have been the result independent of the pre-existing compensable loss. For these reasons I do not find entitlement for cochlear implant surgery in order.
CONCLUSION
The worker’s objection is denied.
DATED June 10, 2010
M. Evans
Appeals Resolution Officer
Appeals Branch