APPEALS RESOLUTION OFFICER DECISION
DEcision Number:
20210031
OBJECTING PARTY:
worker
REPRESENTED by:
self
RESPONDENT:
employer (Not participating)
HEARING:
HEARING IN WRITING
HEARD by:
l.cirillo, appeals resolution officer
ISSUE
The worker objects to the Adjudicator’s decision dated August 17, 2020, which denied initial entitlement for Noise Induced Hearing Loss (NIHL).
BACKGROUND
In February 2020, the worker claimed entitlement for NIHL, which they related to noise exposure in their workplace. The worker was 60 years of age at the time of their first audiogram and had been employed in noise from 1981 – 2019 while working as a Flight Attendant. The worker retired and was out of noise as of January 1, 2019.
The worker underwent an audiogram on February 18, 2020. It was determined that this was the first available/valid audiogram closest to when the worker was out of noise and as a result, this was determined to be the date of injury.
The operating area requested the worker’s employment history and conducted a noise exposure assessment based on information received from the employer. It was ultimately concluded that based on the information on file, the worker did not meet the basic eligibility criteria for noise exposure as outlined in operational policy. It was also concluded that the worker’s hearing loss values did not meet the basic eligibility criteria for entitlement. As a result, initial entitlement was denied. The decision was communicated to the worker in correspondence dated August 17, 2020.
On the Intent to Object (ITO) form dated November 30, 2020, the worker objected to the denial of initial entitlement. They argued that they had had their hearing re-assessed by an experienced audiologist and a new report was attached. They also suggested that the adjudication in their claim had not applied the assessment of the evidence equally as had been done in other claims of an extremely similar nature. In support of their position, they referred to a co-worker’s claim.
Following receipt of the above, it was concluded that the new audiogram dated November 12, 2020 continued to demonstrate hearing loss values that did not meet the basic eligibility criteria for entitlement. Furthermore, despite the worker’s reference to a co-worker’s claim, the adjudicator stated that this did not change the original decision and as a result, the decision to deny initial entitlement for NIHL remained upheld. The reconsideration decision was communicated to the worker in correspondence dated February 18, 2021.
The worker objected to the above; however, the decision remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Worker’s Position:
On the Appeal Readiness Form (ARF) dated May 28, 2021, the worker disagrees with the decision, which denied initial entitlement for NIHL. They relied on their previous submission dated
November 30, 2020 and argued the following in part:
They have more hearing loss in one ear than the other, which is explainable in that their exposure to excessive noise, mostly in their early career, was due to the extreme volume of noise experienced while working both galleys of the 737 and AFT galley of the 727 and DC8 aircraft types;
Their hearing was excellent upon hiring and deteriorated through the workplace exposure and is not congenital or hereditary. Furthermore, they did not have any other noise exposure through any other occupation, leisure or social activities and there were no previous illnesses;
They submit that on average, their hearing loss meets the basic eligibility criteria of 22.5 dB. Since all persons hear with both ears, in their view, it is unreasonable to deny the claim based on one ear exceeding the eligibility criteria, and the other one very nearly meeting the minimum criteria;
They will require hearing aids for life in the near future to function and the loss is certainly due to the workplace exposures with no hearing protection;
For these reasons, they request that initial entitlement for NIHL be reconsidered and allowed.
AUTHORITY
Operational Policy
Published
16-01-04 – Noise-Induced Hearing Loss, On/After January 2, 1990
July 18, 2008
ANALYSIS
I have reviewed the record and considered the information and relevant operational policy in reaching this decision. In considering all of the evidence in addition to the arguments presented, I find that while the worker meets the basic eligibility criteria for noise exposure as outlined in operational policy, the worker’s hearing loss values do not meet the basic eligibility criteria for entitlement and as a result, there is no initial entitlement for NIHL. The rationale for my decision is as follows.
Operational policy 16-01-04 states in part:
Hearing loss in workers occupationally exposed to hazardous noise is an occupational disease (under s.2 (1) and s.15 of the Workplace Safety and Insurance Act) which is peculiar to and characteristic of a process, trade or occupation involving exposure to hazardous noise in Ontario.
Workers with occupational NIHL that is sufficient to cause a hearing impairment may be entitled to benefits. Entitlement to health care and rehabilitation benefits begins with a hearing loss of 22.5 dB in each ear when the hearing loss in the 4 speech frequencies (500, 1000, 2000, and 3000 Hertz) are averaged.
The following is persuasive evidence of work-relatedness in claims for sensorineural hearing loss
continuous exposure to 90 dB(A) of noise for 8 hours per day, for a minimum of 5 years, or the equivalent, and
a pattern of hearing loss consistent with noise-induced sensorineural hearing loss.
A presbycusis (aging) factor of 0.5 dB is deducted from the measured hearing loss (averaged over the 500, 1000, 2000, and 3000 Hz frequencies) for every year, the worker is over the age of 60 at the time of the audiogram. The hearing loss that remains after the presbycusis adjustment is then used to determine entitlement to benefits. Entitlement to health care and rehabilitation benefits is available when the adjusted hearing loss is at least 22.5 dB in each ear.
- Noise Exposure
As already noted the worker claims that they were exposed to excessive noise for approximately 38 years, while working as a Flight Attendant. The worker specifically outlined that they were exposed to excessive noise while working both galleys of the 737 and AFT galley of the 727 and DC8 aircraft types.
The operating area considered multiple sound studies for noise levels on an aircraft, that the employer determined, the worker would have been exposed to during their employment. It was concluded that based on those studies, the average noise levels on the aircraft that a Flight Attendant would be exposed to, ranged from 70 dBA to 79.4 dBA. Based on these levels, it was estimated that the worst-case scenario of noise exposure would be 79.4 dBA per day, for 12-hour shifts. Based on the established duration and frequency of these noisy tasks, and the associated noise levels provided by the employer, the adjudicator estimated that the worker would have been exposed to an 8-hour daily average noise level of at least 81 dBA for a period of 38 years.
While I acknowledge the above, I respectfully disagree.
The employer submitted several sound studies for a variety of aircraft, at various flight stages and routes ranging in dates from 1996, 2006, 2010 and 2014. In my review of those sound studies however, I note that in the 2010 report, it is outlined that the noise level information of the flight deck (A320 – 200) had a possible maximum of 87.8 dBA. Furthermore, while not a determinative in this particular case, I also acknowledge a previous occupational hygiene assessment conducted on April 14, 2010, for the same employer and position, which concluded that the estimated noise exposure for a Flight Attendant may have ranged from 77- 88 dBA, which in my view, is in line with the 2010 noise survey completed by the employer. Therefore, I accept that the worst-case scenario for this particular worker was in fact 88 dBA for 12-hour shifts.
As outlined in operational policy, the minimum hazardous noise exposure of 90 dBA for 8 hours per day for 5 years has the following equivalency:
- 88 dBA for 10 years
In considering the above, I find that based on their employment, the worker had an average exposure of at least 88 dBA for a period of 38 years, and as a result had had sufficient noise exposure to consider a NIHL.
- Hearing Loss
In this case, the first audiogram completed after the worker retired from the workforce was on
February 18, 2020. The worker was 60 years of age at the time of the February 18, 2020 audiogram; therefore, they were not over the age of 60 and as a result, there was no presbycusis adjustment made to the hearing loss on that audiogram.
In reviewing the readings of the February 18, 2020 audiogram, the worker’s hearing loss was as follows:
Right Ear Item Left Ear
25 500 Hertz 15
20 1000 Hertz 15
30 2000 Hertz 30
25 3000 Hertz 25
100 Sum 85
25 Residue /4 21.25
0 - Age – 60 0
(2)
25 % 21.25
I note that the worker submitted a second audiogram dated November 12, 2020; however, the readings from this audiogram were actually better than those documented in February 2020, despite the presbycusis adjustment made noting the worker was 61 years of age at the time of that audiogram.
The readings were as follows:
Right Ear Item Left Ear
15 500 Hertz 15
15 1000 Hertz 15
25 2000 Hertz 25
35 3000 Hertz 30
90 Sum 85
22.50 Residue /4 21.25
0.5 - Age – 60 0.5
(2)
22 % 20.75
It is my understanding that a NIHL is a sensorineural hearing loss that generally affects a person’s hearing sensitivity in the higher frequencies while leaving the lower frequencies relatively intact.
I acknowledge all of the worker’s arguments and specifically that their hearing loss meets the basic eligibility criteria of 22.5 dB, since all persons hear with both ears and in their view, it is unreasonable to deny the claim based on one ear exceeding the eligibility criteria, and the other one very nearly meeting the minimum criteria. However, operational policy is quite clear in that entitlement only begins with a hearing loss of 22.5 dB in each ear.
While I recognize the arguments presented, based on the above and noting the worker’s hearing loss in the left ear was only 21.25 dB at the time of the February 18, 2020 audiogram, I find the worker does not meet the eligibility criterion of at least 22.5 dB of hearing loss in each ear. As such, I find the facts and circumstances in this case do not meet the eligibility criteria for establishing entitlement for occupational NIHL, as outlined in operational policy.
For these reasons, I concur with the operating area and find that there is no initial entitlement for NIHL.
CONCLUSION
I conclude there is no initial entitlement for NIHL.
The worker’s objection is therefore, denied.
DATED October 5, 2021
L. Cirillo
Appeals Resolution Officer
Appeals Services Division