Highlights of Noteworthy Decisions

Decision 2264 18 R
25/09/2019
M. Crystal
  • Board Directives and Guidelines (hearing loss)
  • Reconsideration (Board policy)

The employer applied for reconsideration of Decision No. 2264/18, which confirmed that the worker had entitlement for noise-induced hearing loss, with a 9% NEL award for permanent impairment.

Board Operational Policy Manual, Document No. 16-01-04, on noise-induced hearing loss on or after January 2, 1990, provides entitlement for workers with occupational noise-induced hearing loss that is sufficient to cause a hearing impairment. Persuasive evidence of work-relatedness is continuous exposure to 90 decibels of noise for eight hours per day for a minimum of five years, or the equivalent, and a pattern of hearing loss that is consistent with noise-induced sensironeural hearing loss.
The Vice-Chair interpreted the formulation of the policy regarding persuasive evidence to mean that entitlement should follow if the described circumstances are met. However, the formulation does not limit entitlement exclusively to the presence of those circumstances; rather, it leaves open the possibility of establishing entitlement on other reasonable bases.
The two tables of equivalencies in the policy do not address all situations, particularly multiple shorter periods of exposure where the sum of the shorter periods is equal to the sum of fewer longer periods of exposure. The hearing panel in Decision No. 2264/18 took a cumulative approach to determining equivalencies. The Vice-Chair found that this cumulative approach was reasonable, reasonably consistent with the policy and did not reflect an error in the decision.
The Vice-Chair concluded that there was no significant error in Decision No. 2264/18 regarding initial entitlement.
Board policy states that the accident date is the earlier of the date of the claim or the date of documented evidence for the hearing loss.
Decision No. 2264/18 granted a 9% NEL award based on the date of the claim in September 2011. The Vice-Chair noted that there were audiograms in August 2009 and September 2011, providing documented evidence of hearing loss. The worker retired in November 2009. It follows that at least some of the hearing loss documented in September 2011 may have occurred after the worker removed himself from the occupational noise exposure when he retired.
The Vice-Chair concluded that there was an arguable case regarding the accident date and the quantum of the NEL award. The Vice-Chair invited the worker to make submissions on whether Decision No. 2264/18 included error affecting the quantum of the NEL award.