WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20160010
DATE: OCTOBER 25, 2016
OBJECTING PARTY: Worker
REPRESENTED BY: Self
RESPONDENT: Employer, Not Participating
HEARING: Hearing in Writing
HEARD BY: F.J. Mackin Appeals Resolution Officer
ISSUE
The worker is objecting to the decisions of the Noise Induced Hearing Loss Adjudicators dated June 8, 2010 and October 12, 2016 which denied entitlement for occupational noise induced hearing loss (NIHL).
BACKGROUND
The worker is a 71-year old former assembler for a company that makes refrigeration and air conditioning units. He retired in 2009. From 1994 to 2009 the worker was employed by the respondent and from 1969 to 1994 he worked for a similar company. When his claim for occupational NIHL was denied, the worker objected to those decisions and on October 24, 2016 the objection was referred to me for a hearing in writing.
A hearing in writing is based on the information in the claim file and any written submissions the workplace parties care to provide. In this case neither party presented written submissions.
AUTHORITY
The following WSIB operational policies apply:
- 16-01-04 NIHL on or after January 2, 1990
- 11-01-03 Merits and Justice
ANALYSIS
The worker’s objection is denied for the reasons set out below.
Occupational NIHL is a permanent loss of hearing in both ears resulting from sensorineural (inner ear) damage due to prolonged, continuous, hazardous noise exposure in the workplace.
When considering a claim for occupational NIHL, the Workplace Safety and Insurance Board (WSIB) uses a worker’s pure tone average, which is an average of the hearing loss in the speech frequencies. The calculation is a simple average of the 500 Hertz (Hz), 1000 Hz, 2000 Hz, and 3000 Hz frequencies.
For entitlement to be granted there must be an average of at least 22.5 decibels (dB) of hearing loss in each ear, and the pattern of hearing loss must be consistent with noise induced sensorineural hearing loss. In addition, the worker must meet the exposure criteria, which is continuous exposure to at least 90 dB of occupational noise for 8 hours per day, for a minimum of 5 years, or the equivalent. The minimum hazardous noise exposure of 90 dB for 8 hours per day for 5 years has the following equivalencies:
84 dB for 40 years 89 dB for 7 years
85 dB for 28 years 91 dB for 3.5 years
86 dB for 20 years 92 dB for 2.5 years
87 dB for 14 years 93 dB for 1.8 years
88 dB for 10 years 94 dB for 1.25 years
Those claimants whose hearing loss is at or above 26.25 dB in each ear or at or above 25 dB in the better ear and 32.5 dB in the worse ear are entitled to a non-economic loss (NEL) determination.
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 from the average for each year a worker is over 60 years of age.
This claim was adjudicated on an audiogram dated February 24, 2010. The WSIB Audiologist reviewed that audiogram in Memo 5 dated October 1, 2010 and confirmed a sensorineural hearing loss consistent with exposure to occupational noise.
The audiogram of February 24, 2010 shows AC readings for the left ear and a combination of AC and BC readings for the right ear. In AC testing, a pure tone is presented via earphones. The signal travels through the air in the outer ear to the middle ear and then to the cochlea in the inner ear. In BC testing, instead of using an earphone, an electromechanical device is placed on the skull. This allows for stimulation of the cochlea via mechanical vibration of the skull with almost no stimulation of the outer and middle ear.
When adjudicating claims for occupational NIHL, the WSIB relies on BC readings when these are available. The Workplace Safety and Appeals Tribunal (WSIAT), however, relies on AC readings but will consider BC if there is persuasive evidence of conductive hearing loss. Conductive hearing loss affects the passage of sound between the ear drum and the inner ear.
I agree with the WSIAT approach in this matter. In the present case, there is no evidence of any conductive hearing loss. Therefore, I prefer the AC readings and I calculate the worker’s hearing loss as 29.25 dB in his right ear and 26.75 dB in his left ear, when adjusted for presbycusis.
In determining the level of noise exposure for the worker during his employment history, the NIHL Adjudicator used information from the respondent employer and information from a WSIB database for similar jobs. The NIHL Adjudicator calculated a noise level of 83 dB over 8 hours per day for 40 years. (The WSIB equivalent exposure of 90 dB of noise over 8 hours per day for 5 years is, however, 84 dB over 8 hours per day for 40 years.)
The worker’s claim does not meet the WSIB minimum threshold of noise exposure for an allowable occupational NIHL claim.
Since individual susceptibility to noise varies, if the evidence of noise exposure does not meet the WSIB minimum exposure criteria, claims are 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. In my judgment, however, there is nothing about this claim that persuades me to waive the usual WSIB requirement for minimum noise exposure.
Although the worker has a hearing loss compatible with exposure to occupational noise and although his level of hearing loss is within the WSIB minimum threshold, the level of noise exposure does not meet the minimum threshold required for entitlement.
CONCLUSION
The worker’s objection is, therefore, denied.
DATED: October 25, 2016
(Mr.) F. J. Mackin
Appeals Resolution Officer
Appeals Services Division