WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100020
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
HEARING DATE: N/A
ISSUE
The worker is requesting initial entitlement and related loss of earnings (LOE) benefits.
HOW THE ISSUE ARISES
The worker, a 23 year old registered nurse employed with the employer since July 14, 2006 was diagnosed with gastroenteritis which she felt she developed as a result of exposure to patients with whom she worked between December 23 and 27, 2006. The employer reported the worker had a history of gastroenteritis, the outbreak at the hospital occurred sometime after the worker developed her symptoms and furthermore the worker did not have direct contact with the affected patients as the outbreak was in a different location. The claims adjudicator denied entitlement on the basis there was no confirmation of exposure and informed the worker in a letter dated May 1, 2007.
The worker is objecting to this decision.
AUTHORITY
Workplace Safety and Insurance Act (The Act)
Section 15 (1) (2)
RESOLUTION METHOD AND PROCESS
I discussed and confirmed the issue with the worker’s representative who agreed to obtain additional information which she felt was relevant to the issue. The representative was unsuccessful in obtaining the information and agreed I could make a decision with the evidence in the file. The employer’s representative completed and submitted the employer Participation Form.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence.
The worker submitted two Worker’s Reports of Injury/Disease dated December 20, 2006 and April 20, 2007. The report dated April 20, 2007 stated she had been providing nursing care to patients who were suffering from gastroenteritis on floor 4E at the hospital. She reported developing dizziness, nausea, vomiting, abdominal pain and weakness which began on January 1, 2007. She went to a clinic on January 2, 2007 and reported this to the hospital following which she was off work from January 2, 2007 to January 9, 2007. However, she only missed work on January 2, 3 and 4, 2007 which were her scheduled shifts. In the second worker’s report, the worker indicated the date of exposure was December 28, 2006 and she reported it to the employer on January 2, 2007. She stated she was caring for patients between December 23 and 27, 2006 and these patients were already experiencing gastroenteritis symptoms. She developed similar symptoms on the evening of December 28, 2006 and she said her doctor believes she contracted the illness from exposure to sick patients in the workplace.
The worker’s representative submitted an Objection Form dated May 26, 2009 stating the worker worked on Unit 4 East at the hospital as a registered nurse between December 23 and 27, 2006 and during this time, she provided care for patients who were experiencing similar symptoms. While working on unit 4 East she also went to 4 West for additional supplies as this is the custom. The worker felt ill on the evening of December 28, 2006 but was not scheduled to work again until January 2, 2007 by which time she felt she would be fully recovered and able to work. While she was still unwell by January 2, 2007,she contacted her employer reporting her symptoms and her inability to work and then saw a doctor because her family physician was not immediately available to see her. The doctor diagnosed gastroenteritis acquired at her workplace and prescribed medication.
The employer completed their Employer’s Report of Injury stating the worker did not report the illness. They confirmed they had a Norwalk like illness outbreak on January 15, 2007 which affected both staff and patients. They stated the worker reported similar symptoms prior to the outbreak and informed them she was being investigated to determine the cause of her illness. During the Christmas holidays, the worker was off sick due to gastroenteritis and they confirmed she worked December 23 to 27, 2006 and was scheduled to work January 2, 3 and 4, 2007. She did not work these days and returned to her next schedule shift on January 9, 2007. The employer reported the Norwalk like illness outbreak was declared on January 12, 2007 and declared over on January 26, 2007. They also reported the incubation period for the virus is two days.
The worker’s representative submitted documents in support of her position that there was an outbreak at the employer’s facility. She attached articles from the Guelph Mercury Newspaper, the Daily Mercury, The Record Kitchener, a document entitled “2007 Annual Meeting Audited Financial Statements” from the employer and documentation that appears to be from the hospital website. In addition to this she also submitted a copy of a fact sheet on Noro Virus in health care facilities.
The article from the Guelph Mercury Newspaper indicated there was a gastroenteritis outbreak on 4 East, the Unit where the worker worked between December 23, 2006 and December 27, 2006. According to this article, this was the first of three units of the hospital to have an outbreak. The document entitled 2007 Annual Meeting Audited Financial Statements from the hospital states on Page 23 Norwalk Flu outbreak was declared on 3 units in January but the units were not identified and the worker’s representative appeared to have written in on the document “Units 4E, 4W and 5W.”
The article from the Daily Mercury dated January 13, 2007 states an outbreak of flu like Norwalk Virus at the hospital has led to a restriction on visits and this outbreak was declared after two patients already in the hospital’s 4 East Unit contracted the virus.
An article dated January 17, 2007 from the Record Kitchener states an outbreak of Norwalk Virus at the hospital has spread to two more medical units and a spokesperson from the hospital said the virus has spread to Units 4 West and 5 West. The worker’s representative wrote in ink on the documents “started on 4E.” The report does not identify the location of the outbreak.
Another article from the Daily Mercury Guelph dated January 23, 2007 discusses the outbreak of Norwalk like illness and that the most recent case was indentified in the 4 West Unit. Another article from the Daily Mercury Guelph dated January 27, 2007 reported the virus outbreak was now over. The report stated the outbreak was declared over on January 26, 2007 and that the outbreak was declared at the hospital January 12, 2007 after two patients in one of the medical showed symptoms of the highly contagious virus.
There is some documentation that appears to be from the hospital website that states the hospital was experiencing an outbreak of Norwalk like virus on three of its units, 4E, 4W, and 5W. This article is dated January 15, 2007. Another article stating the hospital was experiencing an outbreak of Norwalk like virus on its 4E medical unit which coincides with an increased incidence of the virus in the community. The report goes on to discuss the Noro Virus which is very common and causes diarrhoea and vomiting in humans and further states symptoms usually appear within two days of being exposed to just a few of the viruses. There is a sudden onset with illness lasting one to two days and recovery is usually complete with no serious long term consequences. Another article appearing to be from the hospital website dated January 17, 2007 states outbreak has been removed from 4 East which is the original unit designated as having an outbreak after two patients became ill with gastroenteritis symptoms the previous week. The worker representative attached a fact sheet on Noro Virus in health care facilities released December 21, 2006 stating the average incubation period for Noro Virus associated gastroenteritis is 12 to 48 hours with a median of approximately 33 hours. The representative highlighted the portion of the fact sheet that states identification of the virus can be best made from stool specimen taken within 48 to 72 hours after onset of symptoms although good results can be obtained by using RT-PCR on samples taken as long as 7 days after symptom onset.
I discussed the issue with the worker’s representative and she confirmed she did not have evidence of an outbreak prior to January 2007 as the employer reported but she would contact infection control to determine whether she could obtain any evidence of any illness at the time of the worker’s illness. She believes there was an outbreak prior to the January 2007 reporting but she believes it took time for the testing to be complete once the symptoms started to confirm the outbreak which would explain the delay. The worker representative later informed me she was unable to contact infection control or any other hospital personnel and was given a hospital contact to whom she wrote a letter requesting information on November 16, 2009. In this letter, the representative requested information about patients on 4E and 4W who had vomiting and or diarrhoea in December 2006. She specified she only required the number of individuals with such symptoms and the date on which they exhibited such symptoms. The hospital contact responded on November 18, 2009 indicating he had spoken with the infection control department and health records department and stated the infection control department did not have the requested information for period December 2006. He further stated it would be difficult to obtain the required information from the health records department because the patients are coded by patient service and not unit specific. Furthermore the codes used codes the patient’s diagnosis and procedures not symptoms while the nursing documentation may contain the required explanation, hundreds of patient files and documents within each file would have to be reviewed and the time required, labour commitment and subsequent costs are prohibitive. As a result the hospital was unable to provide the requested information.
The employer’s representative submitted a document that appears to be minutes of a joint infection control committee meeting dated February 19, 2007. Item 4.2 on the agenda states on January 12, a Noro Virus gastroenteritis outbreak was declared at the hospital on 4E following the identification of a Noro Virus like illness in two patients.
The issue is whether it is more likely than not the worker’s exposure in the workplace significantly contributed to the development of her illness. The worker and the employer confirmed she worked on Unit 4E between December 23 and 27, 2006. According to the worker’s submission, she developed the symptoms on the evening of December 28, 2006 and sought medical treatment initially on January 2, 2007 as she was not scheduled to work between December 28, 2006 and January 2, 2007. The doctor diagnosed gastroenteritis which he felt she acquired at her workplace. The employer reported the outbreak occurred initially on January 12, 2007 and was officially declared on January 15, 2007. While there is some dispute about the exact location of the outbreak, I am satisfied based on the evidence presented the outbreak occurred in the location where the worker worked in addition to other areas. However, the worker developed her symptoms on December 28, 2006 and although she reported there were several patients who had similar symptoms the evidence does not support this. Even the newspaper articles and information from the employer’s website, the worker’s representative submitted all confirm the outbreak occurred in January 2007.
I acknowledge the worker’s representative’s argument that the testing could take up to seven days which would delay the identification of the outbreak but this still does not support her argument. If the patients were exhibiting symptoms between December 23 and 27, 2006 as the worker reported, and the employer took up seven days to complete the testing and obtain the results confirming an outbreak, it would stand to reason the outbreak would be declared earlier than January 15, 2007 which is more than two weeks following the worker’s last day at work
December 27, 2006. The worker representative was unsuccessful in obtaining any information from the hospital confirming the outbreak started in December 2006 and the evidence from the employer in addition to the worker representative’s submission is overwhelming the outbreak occurred around January 12, 2007. By that time, the worker had returned to work on January 9, 2007 and it appeared her symptoms had resolved.
The worker works in an institution which is at high risk for the transmission of communicable diseases and there is a confirmed outbreak of the illness she experienced on January 12, 2007.
However, this type of illness is not restricted to the hospital setting and is also prevalent in the community. The worker’s outbreak occurred according to the evidence several days before an outbreak was identified in the hospital and I find from a temporal perspective, the outbreak of the illness at the hospital where the worker was employed was not a significant contributing factor in the development of her illness.
CONCLUSION
I conclude the worker’s illness is unrelated to exposure at the workplace.
The worker’s objection is denied.
DATED: January 25, 2010
D. Hart
Appeals Resolution Officer
Appeals Branch