Employer v. Worker, 2021 CanLII 133806

DEcision number:

20210030

OBJECTING PARTY:

REPRESENTED by:

RESPONDENT:

HEARING:

HEARD by:

STEPHEN CRISOSTOMO, appeals resolution officer

DATED: OCTOBER 20, 2021

ISSUE

The employer objects to the Eligibility Adjudicator’s decision dated July 14, 2020, which granted the worker initial entitlement to Workplace Safety and Insurance Board (WSIB) benefits for COVID-19.

BACKGROUND

On June 26, 2020, the employer completed the Employer’s Report of Injury/Disease (Form 7) and indicated the worker last worked on May 5, 2020, after developing symptoms and that on May 8, 2020, the worker tested positive for COVID-19. The employer explained that the worker always wore Personal Protective Equipment (PPE) at work and exercised physical distancing. The worker was the first positive case of COVID-19 in their area of the facility and they were not in contact with anyone with a confirmed COVID-19 condition at work.

On July 13, 2020, the Eligibility Adjudicator spoke to the employer and obtained the following information:

2700 people work in facility.
The facility is divided into work areas and the work areas have their own common washroom and breakroom.
At least 15-20 cases of COVID-19 have been confirmed in the facility since April 2020.

There is no Worker’s Report of Injury/Disease (Form 6) contained in the record. On July 9, 2020, the worker’s spouse provided the following information in relation to the claim:

The worker is a line worker in the warehouse.
The worker was supplied gloves and a mask.
The worker is unaware of where/how they contracted COVID-19.
The worker’s initial symptoms included fatigue and nausea.
The worker was concurrently employed at the time.

On July 13, 2020, the Eligibility Adjudicator spoke to the worker and obtained the following information:

The worker was unsure how they contracted the virus at work but was aware that other co-workers had contracted it.
They wore PPE (gloves and mask) at work
They did not travel.
They had no outside exposure to COVID-19.

A hospital report dated May 7, 2020 noted the worker underwent COVID-19 testing on May 7, 2020, which detected the COVID-19 virus.

Entitlement for COVID-19 was reviewed in July of 2020. Based on the review, entitlement was granted for COVID-19, after it was determined by the Eligibility Adjudicator that the nature of the worker’s employment created a risk of contracting COVID-19 to which the public at large was not normally exposed to. This decision was communicated on July 14, 2020.

The employer objected to the July 14, 2020 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Employer Representative’s Position

The employer’s representative submits:

There is evidence in the file that creates significant reasonable doubt in that more than likely the worker did not contract the COVID-19 virus while in the course of their employment with the employer.
The evidence shows the worker’s wife tested positive for the virus and the worker was concurrently employed at the time.
The worker was wearing PPE at work.
The evidence against entitlement outweighs the evidence for entitlement in the claim

AUTHORITY

Operational Policy Manual Document:

Published

11-01-01 Adjudicative Process November 3, 2008

ADDITIONAL REFERENCE

Adjudicative Approach Document titled Novel Coronavirus (COVID-19) Claims dated March 23, 2020

ANALYSIS

I have carefully considered all of the available information and the relevant operational policy in reaching this decision.

I find entitlement for COVID-19 was appropriately allowed in this claim. The reasons for my decision follow.

Operational Policy 11-01-01 related to the Adjudicative Process states in part:

Five point check system

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system.”

An allowable claim must have the following five points:

an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.

The Adjudicative Approach Document titled Novel Coronavirus (COVID-19) Claims, states the following with respect to determining entitlement in a claim:

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.

If established, the above will generally be considered persuasive evidence that the worker’s employment made a significant contribution to the worker’s illness. Claims which do not meet

these guidelines will be reviewed on their own merit, having regard to circumstances of the individual case.

When gathering evidence, the above document also provides guidance with respect to these additional factors to investigate:

When determining entitlement, the non-exhaustive list of factors below should be investigated. These factors are meant to provide guidance about what objective questions to explore in the information-gathering phase of adjudication. Depending on the individual case, it may not be necessary to explore all of them, and other relevant factors may also be identified:

A. The nature of the worker’s employment created an elevated risk of contracting COVID-19

Has a contact source to COVID-19 within the workplace been identified?
Does the nature and location of employment activities place the worker at risk for exposure to infected persons or infectious substances?
Was there an opportunity for transmission of COVID-19 in the workplace via a compatible route of transmission for the infectious substance?

B. The worker’s COVID-19 condition has been confirmed

Are the incubation period, the time from the date of exposure and the onset of illness, clinically compatible with COVID-19 that has been established to exist in the workplace?
Has a medical diagnosis been confirmed? If not, are the worker’s symptoms clinically compatible with the symptoms produced by COVID-19? Is this supported by an assessment from a registered health professional?

In this case, the Humber River Hospital report dated May 7, 2020, noted the worker underwent COVID-19 testing on May 7, 2020, which detected the COVID-19 virus. As such, I am satisfied the worker has a confirmed COVID-19 condition. Thus, I find the second criterion has been met.

Therefore, the question that remains is 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.

With respect to COVID-19, I recognize that:

On November 4, 2020, the Government of Canada updated their guidelines on the modes of COVID-19 transmission to recognize aerosol transmission.
- COVID-19 spreads from an infected person to others through respiratory droplets and aerosols created when an infected person coughs, sneezes, sings, shouts, or talks. Infectious droplets or aerosols may come into direct contact with the mucous membranes of another person's nose, mouth or eyes, or they may be inhaled into their nose, mouth, airways and lungs. The virus may also spread when a person touches another person (i.e., a handshake) or a surface or an object (also referred to as a fomite) that has the virus on it, and then touches their mouth, nose or eyes with unwashed hands. It remains unclear how easily the virus spreads through contact with surfaces or objects.
- The virus is most frequently transmitted when people are in close contact with others who are infected with the virus (either with or without symptoms). Most transmission occurs indoors. The following settings are particularly risky for transmission of the virus:
  - closed spaces
  - crowded places
  - close-contact settings and close-range conversations
  - settings where there is singing, shouting or heavy breathing.
The incubation period for COVID-19 is generally between 2 and 14 days.

Both the worker and the employer confirmed that the worker wore a mask and gloves at work. While I recognize that scientific evidence supports that wearing such PPE helps reduce the transmission of the COVID-19 virus, the use of PPE does not guarantee COVID-19 will not be transmitted. In addition, it is unclear if the worker was required to wear PPE throughout the workday including taking breaks in the common areas and/or if eating and/or drinking were permitted at work, which would require the removal of the PPE used.

I recognise that the employer indicated the worker was the first in their area to test positive for COVID-19, and that the Eligibility Adjudicator confirmed through the employer that there was at least 15-20 cases (my emphasis added) in the facility, which were confirmed from April 2020. I also recognize that people with COVID-19 who do not have any symptoms can still transmit the virus to others. As such, I find the amount of people infected with COVID-19 in the worker’s workplace could be significantly higher than the at least 15-20 cases reported by the employer, as the number provided by the employer was the minimum amount of confirmed cases (“at least”), which would not have included any unconfirmed and/or asymptomatic COVID-19 cases at work.

While I acknowledge that the worker’s spouse indicated that they also contracted COVID-19, there is no evidence that the worker’s spouse contracted COVID-19 prior to the worker’s confirmed COVID-19 results.

Noting the significant amount of confirmed COVID-19 cases at the worker’s worksite, that COVID-19 infections can be spread by people showing no symptoms and in the absence of any compelling evidence that the worker contracted COVID-19 at home or in the community including their concurrent employment, I am satisfied that it is more likely than not that the worker contracted COVID-19 at work. As such, I find that the nature of the worker’s employment at the time they contracted COVID-19 created a much greater risk of the worker contracting the illness compared to their exposures in the general community and that the worker’s employment made a significant contribution to the worker contracting COVID-19.

Therefore, I am satisfied that on a balance of probabilities that the nature of the worker’s employment created an elevated risk of contracting COVID-19 and I accept the positive test on May 7, 2020 confirms the worker’s COVID-19 condition. Thus, I accept compatibility has been established between the worker’s positive COVID-19 test and the worker’s occupational exposure to COVID-19. Thus, the criteria in Policy 11-01-01 for ruling on initial entitlement to WSIB benefits has been met. Therefore, I find initial entitlement for COVID-19 was appropriately allowed.in this claim.

CONCLUSION

Based on the evidence outlined in this decision, I conclude initial entitlement for COVID-19 was appropriately allowed.

The employer’s objection is denied.

DATED October 20, 2021

S. Crisostomo

Appeals Resolution Officer

Appeals Services Division