APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20220099
OBJECTING PARTY: worker
REPRESENTED by: self
RESPONDENT: EMPLOYER (not participating)
HEARING: HEARING IN WRITING
HEARD by: L. Cirillo, appeals resolution officer
DATED: JULY 27, 2022
ISSUE
The worker objects to the Adjudicator’s decision dated April 29, 2019, which denied initial entitlement for Noise Induced Hearing Loss (NIHL).
BACKGROUND
In June 2018, the worker submitted an audiogram completed on June 6, 2018, and claimed entitlement for NIHL, which they related to noise exposure in their workplace. At the time of the audiogram, the worker had been employed in noise from 1974 – 1976 and again from 1995 – 2007, working for two different employers as a Sewing Machine Operator. Initially, the date of injury was determined to be June 6, 2018. The worker retired and was out of noise as of 2007.
The operating area confirmed the worker’s employment history and concluded that they met the basic eligibility criteria for noise exposure as outlined in operational policy. However, with the assistance of the WSIB Audiologist, it was determined that the hearing loss values did not meet the basic eligibility criteria for entitlement, nor was the hearing loss pattern compatible with a NIHL. As a result, initial entitlement was denied. The decision was communicated to the worker in correspondence dated April 29, 2019.
The worker objected to the denial of entitlement and submitted additional medical including audiograms completed on April 10, 2013, July 23, 2015 and February 26, 2016.
Following review of the new information, the operating area concluded that the date of injury was in fact April 10, 2013, noting this was the audiogram closest to the time the worker was out of noise. With the assistance of the WSIB Audiologist, it was once again concluded that the hearing loss values demonstrated on the April 2013 audiogram still did not meet the basic eligibility criteria for entitlement, nor was the pattern compatible with a NIHL. As result, entitlement for NIHL remained denied. The reconsideration decision was completed on September 18, 2019 but was not communicated to the worker until correspondence dated February 9, 2022.
The worker continued to object 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:
The worker completed the Appeal Readiness Form (ARF) on March 7, 2022; however, did not provide any new information.
AUTHORITY
Operational Policy Manual 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 including the medical reporting on file and the opinion of the WSIB Audiologist, I find 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.
As already noted the worker claims they were exposed to excessive noise for a total of 14 years while working as a Sewing Machine Operator. The worker retired and was out of noise effective 2007.
Based on noise data on the Canadian Centre for Occupational Health and Safety (CCOHS) database, the operating area concluded, and there is no issue with, that based on their employment, the worker had an average exposure of at least 87 dBA for a period of 14 years, and as a result had sufficient noise exposure to consider a NIHL.
Based on the medical information on file, including the available audiograms, when considering entitlement, the WSIB uses the date a work-related NIHL is first diagnosed with a valid audiogram closest to when the worker last worked in noise, which, in this case is April 10, 2013.
At the time of the April 2013 audiogram, the worker was in their early 60s and as a result, no presbycusis adjustment is necessary.
In reviewing the readings of the April 10, 2013 audiogram, the worker’s hearing loss in each of the above frequencies was as follows:
Right Ear Item Left Ear
25 500 Hertz 25
20 1000 Hertz 15
15 2000 Hertz 10
15 3000 Hertz 20
75 Sum 70
18.75 Residue /4 17.50
0 - Age – 60 0
(2)
18.75 % 17.50
The WSIB Audiologist also reviewed the audiogram on September 16, 2019 and opined the following:
There is insufficient loss for claims consideration
Air/bone gaps for the right ear (250 Hz, 500 Hz, 750 Hz, 6 kHz) and left ear (250 Hz, 6 kHz)
Low frequency component that is not consistent with a NIHL
Comments indicate that the worker may have otosclerosis (i.e. a hereditary condition of the ear whereby bony hardening occurs at the bottom of the third middle ear ossicle (bone) called the stapes – which causes hearing loss)
As the worker retired and was out of noise as of 2007, any further deterioration in their hearing (i.e. audiograms completed in 2015, 2016 and 2018) cannot be considered for entitlement purposes. It is worthy to note however, that the WSIB audiologist also reviewed each of these audiograms and they continued to demonstrate insufficient loss and loss that is not compatible with a NIHL.
As the loss of the right ear was only 18.75 and the left ear was only 17.50 dB at the time of the April 2013 audiogram, I must rely on operational policy, and find the worker does not meet the basic eligibility criterion of at least 22.5 dB of hearing loss in each ear. Further, in the absence of any medical to the contrary, I accept the opinion of the WSIB Audiologist and find that the hearing loss pattern is not consistent with noise-induced sensorineural hearing loss.
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.
CONCLUSION
I conclude there is no initial entitlement for NIHL.
The worker’s objection is therefore, denied.
DATED July 27, 2022
L. Cirillo Appeals Resolution Officer Appeals Services Division