APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20210027
OBJECTING PARTY:
employer
REPRESENTED by:
self
RESPONDENT:
worker (NOT PARTICIPATING)
REPRESENTED by:
SELF
HEARING:
HEARING IN WRITING, august 30, 2021
HEARD by:
c. da cunha, appeals resolution officer
ADDITIONAL ATTENDEES:
none
ISSUE
The employer objects to the Eligibility Adjudicator’s (EA) February 8, 2021 decision, which granted initial entitlement to a work-related COVID-19 infection.
BACKGROUND
On January 11, 2021, the worker had three interactions with a co-worker who tested positive for a COVID-19 infection on January 15, 2021. Upon learning of this, the worker underwent testing for the virus, receiving a positive result on January 18, 2021. The worker had worked with the employer as a Slot Attendant for just over 10 years at the time.
The EA’s Decision
The EA granted initial entitlement, finding that the information on file supported that the workplace posed a higher risk of contracting the COVID-19 virus than that posed to a member of the general public.
The Employer’s Position
The employer essentially argues that, while it was possible that the worker acquired the COVID-19 infection in the workplace, it is not probable that he did. This is because of the stringent measures it had implemented in the workplace to avoid such a transmission.
The employer and its workers, including the worker, followed all of the Public Health requirements. The worker’s interactions with the Covid-19 positive co-worker were limited and brief. Therefore, there was not a lack of preventative measures in the workplace to correlate to the worker’s subsequent acquisition of the virus.
On a balance of probabilities, the worker’s positive test was an unfortunate coincidence. Transmission was just as likely to have been community-acquired, if not more likely, because of exposure to less-controlled environments outside the workplace. Therefore, initial entitlement should be rescinded.
AUTHORITY
Sections 2 and 15 and Regulations 3 and 4 of the Workplace Safety and Insurance Act (WSIA), 1997
Adjudicative Approach Document
Novel Coronavirus (COVID-19) Claims, March 23, 2020
https://www.wsib.ca/sites/default/files/2020-03/adjudicativeapproachnovelcoronavirus.pdf
ANALYSIS
I have carefully considered all of the available information, applicable legislation, and appropriate Adjudicative Approach Document in reaching this decision. Having done so, I find that initial entitlement to a COVID-19 infection is in order.
Occupational diseases are adjudicated under Section 2(1), Section 15 and Regulations 3 and 4 of the WSIA, 1997. If the disease is not listed in the Schedules of the WSIA and a relevant policy has not been developed, entitlement to WSIB benefits and services is determined based on the real merits and justice of the individual claim.
The test for determining causation in WSIB claims is that of a significant or material contribution. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.
The standard of proof applied is the “balance of probabilities”. A speculative possibility does not meet this standard, which requires a fact or a causal link to be “more probable than not”. Therefore, the matter to be resolved in this specific case is whether the work-related exposure on January 11, 2021 was, more likely than not, a significant contributing factor in the development of the COVID-19 infection. I find it was.
The following is not in dispute:
The information on record confirms that the worker interacted, indoors, with a COVID-19 positive co-worker in the workplace on January 11, 2021, on at least three separate occasions. Both individuals wore facemasks and maintained a physical distance of two metres during the interactions.
During one of the interactions, the COVID-19 positive co-worker spoke to the worker from the doorway of the worker’s office, while the worker was seated in the office, for approximately 20 minutes. The other two interactions were also indoors and lasted for less than one minute each time.
The COVID-19 positive co-worker shared common indoor spaces and surfaces with the worker on January 11, 2021, such as the bathroom and lunch room.
The worker confirmed that he did not leave his home prior to January 11, 2021, except to go to work. His wife did all the grocery shopping and took their children to school. This wife and children all tested negative for COVID-19.
There is no evidence of any non-occupational exposure to a COVID-19 positive individual on record.
The March 23, 2020 Adjudicative Approach Document entitled “Novel Coronavirus (COVID-19) Claims” states, in part:
In determining the work-relatedness of COVID-19 claims, the decision-maker will consider whether:
The nature of the worker’s employment created a risk of contracting the disease to which the public at large is not normally exposed; and,
The WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.
While I acknowledge the employer had extensive and stringent protocols in place to mitigate the spread of the COVID-19 virus in the workplace, even the most robust practices and procedures do not guarantee a 100% effective elimination of the virus indoors.
The facts and circumstances on record, which confirm a work-related exposure and the absence of a non-occupation exposure, lead me to find that the workplace exposure on January 11, 2021 to a COVID-19 positive co-worker was, more likely than not, the source of the worker’s subsequent COVID-19 infection. In other words, the nature of the worker’s employment created a risk of contracting the disease to which the public at large is not normally exposed. Therefore, initial entitlement to the condition is in order.
CONCLUSION
I find that initial entitlement to a work-related COVID-19 infection is allowed.
The employer’s objection is, therefore, denied.
DATED August 30, 2021
C. da Cunha
Appeals Resolution Officer
Appeals Services Division