WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER 20100149
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s Representative, Employer
ISSUE
The worker is objecting to the October 27, 2009 Non-Economic Loss (NEL) quantum decision, awarding him a zero per cent permanent impairment award for Noise Induced Hearing Loss (NIHL).
HOW THE ISSUE ARISES
In December 2009, 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 76 years old at the time of his claim for benefits and had been employed since 1966 as a machine operator – he retired in 1991.
While working as a machine operator, the worker was exposed to noise from machines such as presses and grinders. 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 a zero per cent permanent impairment award for his bilateral NIHL. The worker objected to the NEL quantum on the basis regard ought not to have been had for his left shoulder impairment and 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
18-05-05 Effect of a Pre-Existing Impairment
RESOLUTION METHOD AND PROCESS
The worker submitted a 60 Day Decision Option Form requesting an expedited review of the issue 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 2009 than in previous years, the last audiogram submitted to file, i.e. that of April 7, 2009, 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.
Noise damage affects the inner ear, i.e., the cochlea, and not the middle or outer ear structures. Bone conduction thresholds should therefore always be used, when available, to calculate the degree of hearing loss. The April 7, 2009 audiogram recorded the following measurements (bc=bone conduction):
Right Ear Left Ear
500 Hertz 20 (bc) 25
1000 Hertz 30 (bc) 30
2000 Hertz 35 40
3000 Hertz 55 45
Total: 140 140
The total right-sided loss was 140 dB and the total left-sided loss was also 140 dB. However, when calculating the pure tone averages for workers over 60 years of age, the WSIB includes a correction factor for aging, i.e. presbycusis. Hearing loss as a result of aging is not compensable. One half decibel is deducted for each year a worker is over 60 years of age.
In the worker’s case, I note a total of 50 dB was deducted for each ear – according to page 2 of the NEL assessment, this was based upon the presumption the worker was 85 years of age at the time of the April 2009 audiogram. However, this calculation is incorrect. The worker was born on September 20, 1933, and was therefore actually 75 years of age at the time of the April 2009 audiogram. Therefore, the NEL Clinical Specialist ought to have deducted 7.5 and not 12.5 at each level, resulting in a total of 30 dB to be deducted from 140. Therefore, the adjusted DHSL ought to have been 110 dB bilaterally.
According to Table 3 on pages 176-177 of the AMA Guides, these readings translate into a binaural hearing impairment of 3.8%.
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 3.8% translates into a one per cent impairment of the whole person.
I note the worker has a previous permanent disability award of 12.5% for his left shoulder. However, in accordance with Policy 18-05-05, given the worker’s left shoulder injury occurred prior to January 2, 1990, the WSIB rates the worker’s NEL for his hearing loss on its own, given that the date of injury for the hearing loss claim is post January 2, 1990. The worker would therefore be entitled to a permanent impairment award totalling 1% for his bilateral NIHL.
CONCLUSION
I conclude on the basis of my examination of the evidence the worker is entitled to a one per cent NEL award for his bilateral NIHL.
The worker’s objection is therefore allowed.
DATED September 30, 2010
L. Diaz
Appeals Resolution Officer
Appeals Branch