BETWEEN:
[PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION]
APPELLANT AND:
WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND
RESPONDENT
DECISION #200
Appellant Maureen Peters, Worker Advisor, representing the
Worker
Respondent Brian Waddell, Solicitor representing the Workers Compensation Board
Place and Date of Hearing Thursday, October 16, 2014 Quality Inn on the Hill 150 Euston Street
Charlottetown, Prince Edward Island
Facts and Background
1. On December 11, 2012, the Appellant filed a Worker’s Report Form 6 stating that he was claiming for bilateral hearing loss. His Report was accompanied by a hearing loss questionnaire. [Appeal Record – Tab 3 and 4]
2. On January 4, 2013, the Workers Compensation Board received a report from Dr. Michael W. Fong an ear, nose and throat specialist dated July 11, 2012 which diagnosed the Appellant with noise induced hearing loss. [Appeal Record – Tab 5]
3. On January 16, 2013, a second Worker’s Report was received by the Board and an Employer’s Report Form 7 was also received by the Board on that date. Both reports indicated that the Appellant was claiming for hearing loss that started while he was working in the [PERSONAL INFORMATION] at [PERSONAL INFORMATION] between 2001 and 2005. [Appeal Record – Tabs 6 and 7]
4. Dr. Steven O’Brien, the Board medical advisor, provided a medical opinion on March 12, 2013 which concluded that the Appellant’s hearing problems could not be attributed to his workplace experience with [PERSONAL INFORMATION]. [Appeal Record – Tab 8]
5. On April 3, 2013, the Entitlement Officer wrote to the Appellant informing him that his claim for Workers Compensation benefits for bilateral hearing loss was denied. [Appeal Record – Tab 9]
6. On July 9, 2013, the Appellant submitted a Request for Internal Consideration in relation to the decision of April 3, 2013. [Appeal Record – Tab 10]
7. On September 19, 2013, the Internal Reconsideration Officer (“IRO”) issued decision IR #[PERSONAL INFORMATION], denying the Appellant’s request. [Appeal Record – Tab 1]
8. The Appellant appealed the IRO’s decision by way of Notice of Appeal dated October 18, 2013. [Appeal Record – Tab 2]
Issue
9. Was the Decision to deny the Appellant’s claim for bilateral noise induced hearing loss appropriate?
Appellant’s Argument
10. The Appellant argued that hearing loss claims are adjudicated using Policy POL-09 “Hearing Loss”. At the time of the Appellant’s application for compensation, the Policy read as follows:
7. “For noise induced hearing loss to be compensable, there must be a clear history of occupational exposure to noise levels in excess of the acceptable noise exposure levels outlined in the Occupational Health and Safety Act General Regulations. The Worker should show a history of such exposure of two or more years”.
8. “Supporting medical evidence from an ear, nose, and throat specialist showing noise induced hearing loss must be provided to support compensation claims”.
[Appellant’s Factum – Tab 3]
11. The Appellant reviewed Policy POL-68 “Weighing of Evidence” regarding what needed to be reviewed when adjudicating claims for compensation.
12. The Appellant argued that there was sufficient evidence to support that on a balance of probabilities the Appellant’s bilateral hearing loss was compensable. The Appellant looked to Form 6 in which he identified the source of his hearing loss as noise from machines while working in the [PERSONAL INFORMATION] between 2001 and 2005 which would constitute noise exposure for more than two years.
13. The Appellant also relied on the report on file from Dr. Fong, an ear, nose, and throat doctor who diagnosed noise induced hearing loss.
14. The Appellant commented about the information from the IRO which stated that there was limited information regarding the Appellant’s work history and noise exposure level. The Appellant stated that there was no indication on the file that the Entitlement Officer contacted him to discuss his employment history, nor was the employer contacted regarding noise levels at the workplace. The Appellant suggested it was unfair and unreasonable for the Board to make a decision without gathering all the relevant information.
15. The Appellant commented on Dr. O’Brien’s medical opinion and stated that Dr. O’Brien weighed heavily on the statement provided by the Appellant on the hearing loss questionnaire and the information recorded by Dr. Fong regarding the date at which the Appellant first noticed a hearing problem. The Appellant argued that the Board placed too much weight on the statement regarding when the Appellant first noticed problems with his hearing.
16. The Appellant’s position was that there was sufficient evidence on the file to conclude that his bilateral hearing loss was work related.
Respondent’s Argument
17. The Respondent argued that this was not a personal injury “arising out of and in the course of employment” as required in Section 6(1) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1 (“Act”). [Respondent’s Factum – Tab 2]
18. The Respondent argued that there was limited information available regarding the type of work the Appellant did at his prior jobs; however, the Respondent took notice that the Appellant was involved in the construction industry from 1978 to 1983 and the seismic
exploration industry from 1983 to 1990 during which time he was exposed to the use of dynamite in his employment.
19. The Respondent took issue with the 11 year gap in the Appellant’s employment history leading to speculation as to what may have occurred during that period which may have impacted his hearing capacity.
20. The Respondent further argued that there were no details provided by the Appellant about his exposure from “machines” in the [PERSONAL INFORMATION] and there was simply no evidence about the exposure, types of equipment or noise levels.
21. The Respondent commented about Dr. Fong’s report of July 11, 2012 which indicated the Appellant’s history of noise exposure and, more specifically, the construction industry and the seismic industry.
22. The Respondent argued that Dr. O’Brien’s report stated that the Appellant’s present hearing difficulties were not related to his workplace experience with [PERSONAL INFORMATION], but due to other factors.
23. The Respondent argued that there was no evidence whatsoever indicating what machines the worker used during the period he was in the [PERSONAL INFORMATION] or what the noise levels may have been. The Respondent quoted Ison, Workers Compensation in Canada, 2nd ed. Most specifically, at p. 55 in which it noted that noise induced hearing loss is often hard to adjudicate.
24. The Respondent argued that there was no history of occupational exposure, let alone a clear history of same. The Appellant was provided with a hearing loss questionnaire and had every opportunity on his Form 6 and on the questionnaire to report the information necessary for adjudicating the claim. He did not provide the details.
Analysis/Decision
25. The Tribunal agrees that there is insufficient information on the file to support the position that the bilateral hearing loss is compensable.
The Tribunal finds that the Appellant failed to provide information to the Board; however, the Tribunal also finds that the Board should have requested further information from the Appellant.
26. The Appellant did not provide information as to what he did at his prior jobs, in particular, in the construction industry from 1978 to 1983 and the seismic exploration industry form 1983 to 1990 during which time he was exposed to the use of dynamite.
27. Also, there is no information in the file as to what types of machines were in the [PERSONAL INFORMATION] in 2001. The Tribunal does not see any indication that the Board sought this information.
28. Therefore, the Tribunal sends this matter back to the Board to obtain addition information from the Appellant regarding his work history and additional information regarding the “machines” in his former workplace.
29. We thank counsel for their materials and submissions.
Dated this 12th day of January 2015. __________________________________ P. Alanna Taylor, Chair
Workers Compensation Appeal Tribunal Concurred:
Donald Turner, Employer Representative Libba Mobbs, Worker Representative
