APPEALS RESOLUTION OFFICER DECISION
decision number:
20210037
OBJECTING PARTY:
worker
REPRESENTED by:
Worker representative
RESPONDENT:
Employer
REPRESENTED by:
self
HEARING:
TELEphonic oral hearing – november 16, 2021
HEARD by:
C. da cunha, appeals resolution officer
ADDITIONAL ATTENDEES:
none
ISSUE
The worker objects to the Occupational Disease and Survivor Benefits Program (ODSBP) Adjudicator’s May 7, 2020 decision. He seeks:
- Entitlement to full loss of earnings (LOE) benefits from March 20, 2020 to August 13, 2021.
During the oral hearing, the worker representative raised the issue of the worker’s entitlement to full LOE benefits during this period based on his psychological level of impairment (LOI), both on its own and in combination with the physical permanent impairment (PI). As acknowledged by the worker representative during his closing, the matter of mental health entitlement has not been addressed by the Operating Area, nor has the issue of entitlement to full LOE benefits from March 20, 2020 to August 13, 2021 based on the worker’s psychological LOI. These issues were not referred to the Appeals Services Division for consideration, are not issues in dispute before me, and I have no jurisdiction to consider them. Therefore, I shall not consider or make any finding of fact regarding them in this decision. The worker is free to pursue these matters with the Operating Area, if he wishes.
BACKGROUND
The Appeals Resolution Officer’s February 23, 2021 decision provides a thorough history of the case file. Therefore, I will not repeat it all here.
The worker developed reactive airways dysfunction syndrome (RADS) because of a workplace exposure on August 25, 2017, while working as a Housekeeper for the employer at a hospital in Ontario.
The WSIB subsequently recognized that he suffered a PI due to the RADS, granting entitlement to a 48% non-economic loss (NEL) award. The worker also has right shoulder and low back PIs under prior claims. His total NEL award for all these areas of injury currently stands at the 62% level.
He returned to modified duties on November 12, 2018, working four hours per day, four days per week, performing accommodated housekeeping duties in the hospital, operating a ride-on autoscrubber, cleaning the corridor floors in the building. The employer paid him for the hours he worked, and the WSIB granted entitlement to partial LOE benefits for the wage loss from that date.
On March 20, 2020, the worker removed himself from the workplace because of concerns related to the worldwide Covid-19 pandemic. He subsequently returned to work (RTW) on August 13, 2021, performing the same modified duties at the hospital, at the same hours and days.
The ODSBP Adjudicator’s Decision: On May 7, 2020, the ODSBP Adjudicator denied entitlement to full LOE benefits from March 20, 2020, finding that there was no evidence that the RADS significantly increased the risk for acquiring Covid-19, or increased the morbidity or mortality risk once acquired, and that the same suitable work, at a wage loss, remained available.
The Worker’s Position: In closing arguments at the oral hearing, the worker representative argued that the worker is entitled to full LOE benefits from March 20, 2020 to August 13, 2021 because the RADS put him at risk of dying if he continued to work in the hospital and became infected with Covid-19.
Operational policy 19-02-07, RTW Overview and Key Concepts, states that work is safe when it does not pose a health or safety risk to the worker (e.g., should not cause re-injury or a new injury either physically or psychologically), to co-workers, or to third parties. In this specific case, the hospital setting, with its Covid-19 patients, to whom the worker was exposed, was not safe. No one could guarantee that, despite all measures taken by the hospital, the worker faced zero risk of contracting Covid-19. Therefore, the modified duties he was performing up to March 20, 2020 were no longer suitable as of that date.
Furthermore, the WSIB based its May 7, 2020 decision on Dr. Spilchuk’s April 28, 2020 opinion. However, that opinion was based on evidence that was only one month old in relation to the onset of the Covid-19 pandemic, when we knew little about Covid-19, and only looked at asthmatics and not at people with a 31% lung capacity, like the worker. A more recent April 19, 2021 report from the World Health Organization confirmed that people with asthma have an increased risk of Covid-19 infection and more severe outcomes from that infection, especially in those with comorbid chronic obstructive pulmonary disease. Therefore, the more current scientific evidence supports that the worker correctly removed himself from the workplace on March 20, 2020.
Finally, both Dr. C. McKenzie, Respirologist, and Dr. J.P. Clayton, Psychologist, supported the worker’s decision to remove himself from the workplace on March 20, 2020. Even when the worker RTW on August 13, 2021, he did so against their advice, because he was confronting financial difficulties. He also RTW after he became fully vaccinated, which he did as soon as he became eligible.
The evidence on record confirms that, because of the threat of Covid-19 to his physical health, and the effect it had on his mental health, the workplace was no longer suitable as of March 20, 2020. Therefore, full LOE benefits are in order.
The Employer’s Position: During her closing, the employer put forth that the worker is not entitled to full LOE benefits for the period in question because suitable work remained available to him during this time.
A hospital is inherently a place where infectious diseases might be present, and this was true before the Covid-19 pandemic. The hospital already had strict measures in place to protect people from infectious diseases while on premises. Nonetheless, the hospital implemented increased health and safety measures in the workplace because of the Covid-19 pandemic, including additional personal protective equipment, control of human traffic, and physical distancing measures. Furthermore, the worker did not perform his modified duties in patient areas or rooms, and was limited to areas where the autoscrubber could be operated.
While the employer understands the worker’s concerns regarding exposure to Covid-19, the virus has been present in the community at large since the start; not just in hospital settings. Precautions to address potential exposure to the virus must be taken not just in the workplace, but at home, and out in the community. Therefore, the evidence does not show that full LOE benefits are in order.
AUTHORITY
Section 43 of the Workplace Safety and Insurance Act, 1997 (WSIA)
Operational Policy Manual
Published
15-06-08: Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances
19-02-01: Work Reintegration Principles, Concepts, and Definitions
December 3, 2012 December 1, 2012
TESTIMONY
The worker provided the following additional and relevant sworn testimony at the oral hearing:
He RTW to the same pre-March 20, 2020 modified duties, days, and hours on August 13, 2021.
His duties consist of him riding an autoscrubber, cleaning the corridor floors of the buildings in the hospital. These are essentially the same duties he performed on a full-time basis prior to the date of injury.
If anyone in the hospital has a complaint about him, they contact his Supervisor at the employer, who then speaks with him. Hospital staff do not supervise or direct him.
He cannot remember whether the hospital provided him with extra personal protective equipment, such as a mask, to address Covid-19 prior to March 20, 2020. He now uses masks and gloves while at work. He is very cautious and takes all precautions to protect himself.
He comes across a number of people in the corridors while carrying out his duties, as they walk by him in the hallways. This includes anyone who is in the hospital, such as staff and patients. He does not go into the rooms of patients. He does not know if there are Covid-19 patients in the areas where he carries out his duties.
He feels intimidated while at work because of the fear of acquiring Covid-19. However, he needs to work because of the income.
He is fully vaccinated against Covid-19, receiving his second shot on June 29, 2021. He received the vaccines as soon as he became eligible to do so.
He has been seeing Dr. Clayton, Psychologist, since at least 2019. She and Dr. McKenzie both supported his concerns about potentially acquiring Covid-19 in the hospital, as well as his decision to stop working. They told him he is at high risk of severe complications if he is infected with Covid-19. They did not support his RTW on August 13, 2021.
He is aware that the modified duties remained available to him from March 20, 2020 to August 13, 2021 and he would have performed them if he had RTW during that period.
He never expressed any concerns to anyone about any other potential pathogenic infection in the hospital setting prior to the Covid-19 pandemic.
He received Canada Emergency Response Benefits and Employment Insurance benefits from roughly April 2020 to January 2021.
From March 20, 2020 to August 13, 2021, he lived with his wife and son in the same home. His wife did not work during this period. His son worked outside the home and came home every night. They all took normal Covid-19 precautions while outside the home (e.g. masking, distancing, sanitizing, etc.), but interacted as a normal family inside the home, with no added precautions. His son went overseas to work in February 2021.
ANALYSIS
I have carefully considered all of the available information, relevant legislation, and appropriate operational policies in reaching this decision. Having done so I find that a suitable occupation (SO) was available to the worker from March 20, 2020 to August 13, 2021, at a wage loss. Therefore, there is no entitlement to full LOE benefits during this period.
Section 43 of the WSIA prescribes that a worker who has a LOE because of the injury is entitled to payments beginning when the LOE begins. Therefore, in order to be entitled to full LOE benefits from March 20, 2020 to August 13, 2021, the evidence must show that the work-related RADS was responsible for the worker’s full wage loss during this period.
When the Covid-19 pandemic hit, the worker was performing suitable work at the hospital, at a wage loss, and receiving partial LOE benefits under this claim for that wage loss. This is not in dispute. As a result of the pandemic, the worker decided to stop working, fearful of what a Covid-19 infection might do to him, especially because of his RADS PI. His argument is that the Covid-19 pandemic, and the risk it posed to him, rendered the modified duties unsuitable because the hospital was a location with a significantly increased risk for exposure to the virus.
The worldwide Covid-19 pandemic that struck the world in March 2020 impacted every person, in every country, in all aspects of their lives, at work and outside of work. Societies everywhere took extraordinary measures in an attempt to eliminate or mitigate the impact of the pandemic. Individuals wore masks and physically maintained two metres from others when in public, created familial socialization bubbles limited to a small number of people, undertook strict and frequent disinfection measures, left the office to work from home, etc. All this because of the mortal threat posed by Covid-19 to everyone.
In Ontario, employers introduced unprecedented protocols to prevent, to the extent possible, the transmission of the Covid-19 virus in the workplace. Hospitals, being ground zero in the fight against the virus, implemented some of the strictest workplace measures for the protection of all individuals who entered and occupied their premises. Therefore, noting its global nature, for the purposes of this specific case, the Covid-19 pandemic was a non-work-related change in circumstances for the worker.
Operational policy 19-02-01, Work Reintegration Principles, Concepts, and Definitions, which was in effect on May 7, 2020, defined “safe work” in the following way:
When considering whether an offer of work is suitable, the workplace parties and the WSIB consider whether the work is safe, i.e., whether
The work poses a health or safety risk to the worker (e.g., should not cause re-injury or a new injury), to co-workers, or to third parties
The work is performed at a worksite that is covered by either the Occupational Health and Safety Act (OHSA) or the Canada Labour Code, and the worker has the functional ability to travel safely to and from the proposed worksite.
There is no evidence on record that the hospital closed or was in any way sanctioned under the OHSA when the Covid-19 pandemic struck because it had become an unsafe workplace. Like all hospitals in Ontario, it implemented the protocols necessary to mitigate the danger of transmission of the Covid-19 virus between individuals on site. As a hospital, it was an expert in doing so, noting the infectious diseases to which it is potentially exposed on an ongoing basis. The information on record leads me to find that it continued to meet its legislated OHSA responsibilities from the onset of the Covid-19 pandemic, and it remained a safe workplace for all of its staff, including the worker. Therefore, the duties he performed prior to March 20, 2020 remained suitable subsequent to that date.
I acknowledge and sympathize with the worker’s concerns when the Covid-19 pandemic hit. But, the Covid-19 virus was a threat to him, whether at work or away from work. Therefore, it was incumbent upon him to vigilantly and strictly adhere to the health and safety measures recommended by the authorities outside of work, and those implemented by the hospital while at work. There is no dispute that a Covid-19 infection is a terrifying thing to contemplate because it is potentially fatal to anyone who acquires it. However, operational policy 15-06-08, Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances, is the determinative authority in this case because it directly addresses the worker’s specific situation and prescribes the level of LOE benefits to which he is entitled. It states, in part:
Worker’s inability to work due to the work-related injury/disease and non-work-related change in circumstance
Where the worker is temporarily totally disabled/fully impaired because of both the work-related injury/disease and the non-work-related change in circumstance, the WSIB pays full benefits until the level of the work-related impairment is clinically determined. At that time, ongoing benefits are paid commensurate with the degree of remaining work-related impairment. If the work-related impairment is clinically determined to be partial, but the worker is still not able to work, then a SO would be identified and LOE benefits paid based on the earnings of the SO.
The evidence on record shows that a SO, at a wage loss, remained available with the employer at the hospital on March 20, 2020, when the non-work-related change in circumstances occurred, and remained available until August 13, 2021, when the worker RTW. Therefore, as the worker’s full wage loss during this period was not solely caused by his RADS PI, and was partly caused by the non-work-related change in circumstances (i.e. the Covid-19 pandemic), there is no entitlement to full LOE benefits under the WSIA.
CONCLUSION
I find that a suitable occupation, at a wage loss, remained available from March 20, 2020 to August 13, 2021. On this basis, entitlement to full loss of earnings benefits during this period is not in order.
The worker’s objection is, therefore, denied.
DATED November 30, 2021.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division