APPEALS RESOLUTION OFFICER DECISION
decision number:
20220004
OBJECTING PARTY:
employer
RESPONDENT:
worker
HEARING:
HEARING IN WRITING
HEARD by:
l. diaz, appeals resolution officer
December 2, 2021
ISSUE
The employer objects to the Eligibility Adjudicator’s February 3, 2021 decision which accepted entitlement to COVID-19 under the claim.
BACKGROUND
On October 29, 2020, while employed as a Senior Electrician, the worker reported developing symptoms of fatigue/head cold and subsequently tested positive for COVID-19. The worker had been with their employer for 29 years.
The file record confirms the worker lost time from work beginning November 4, 2020 and returned to work on November 18, 2020.
Eligibility Adjudicator’s decision
Further to the February 3, 2021 decision, the Adjudicator granted initial entitlement to occupationally related COVID-19 for health care and loss of earnings (LOE) benefits for the lost time incurred until November 18, 2020.
Employer’s position
In a subsequent March 30, 2021 letter, the employer submitted, “It was later determined by the infection Disease Physician at Michael Garron Hospital, that L was the index case and therefore his diagnosis of COVID-19 was considered to be acquired in the community…”. The employer therefore objected to initial entitlement having been accepted in the claim.
AUTHORITY
- Workplace Safety and Insurance Act
Section 2(1)
Section 119
- Operational Policy Manual documents:
11-01-01 Adjudicative Process, published November 3, 2008
11-01-02 Decision Making, published October 12, 2004
ADDITIONAL REFERENCES
Assessment of the Worker’s COVID-19 Condition, Operational Policy Branch, Occupational Disease and Survivor Benefits Program, December 8, 2020
Adjudicative Approach Document entitled Novel Coronavirus (COVID-19) claims, March 23, 2020
Adjudicative Support Document, Work-Related Communicable Diseases, Occupational Disease Policy and Research Branch, March 2011
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker was appropriately granted entitlement to COVID-19 in the claim. The reasons for this decision will be further explained below.
For entitlement to be granted, it must be shown that it is more probable than not that the circumstances of a worker’s employment and exposure history significantly contributed to the development of the condition being claimed.
The Adjudicative Approach Document entitled Novel Coronavirus (COVID-19) Claims, records 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?
The following are the details surrounding exposure in this claim:
On October 29, 2020, the worker advised he began experiencing symptoms of fatigue and head cold.
On October 30, 2020, the worker was having lunch with a colleague, and spoke to the colleague for 10-15 minutes during their lunch break. This same colleague tested positive for COVID-19 that same day.
Memo A0002 confirms there was a COVID-19 outbreak in H6 – four maintenance workers tested positive for COVID-19.
The worker underwent testing for COVID-19 on November 4, 2020 and subsequently tested positive – the positive PCR test was submitted to file.
The worker’s spouse was working from home; the worker’s adult child worked outside the home. Neither the spouse nor the child exhibited COVID-19 symptoms or tested positive for COVID-19.
The worker was the only individual at home to exhibit symptoms for COVID-19 and who tested positive.
The worker drives to and from work on their own.
Personal protective equipment, i.e. masks, face shields, and gloves are/were worn at work and there is/was frequent hand-washing.
Although the Adjudicator accepted that the worker was exposed to an individual on October 30, 2020 who tested positive for COVID-19 later that day, the worker had advised that their symptoms actually commenced on October 29, 2020. As a result, given that the worker’s COVID-19 symptoms pre-dated their discussion with their colleague on October 30, 2020, I find it highly unlikely that the worker acquired COVID-19 due to their lunch-time interaction with their colleague.
However, the file information confirms that there was an outbreak at the employer’s premises, with four maintenance staff testing positive for COVID-19. This information has not been refuted by the employer.
Consequently, although the employer contended in their March 30, 2021 submission that the worker likely acquired COVID-19 in the community, the worker confirmed that they commuted to work by themselves and that their wife and child did not exhibit COVID-19 symptoms and tested negative for the virus at that time.
In summary, given the confirmed COVID-19 positive cases at the worker’s worksite, and the absence of positive COVID-19 cases at the worker’s home, I find it more likely than not that the source of the worker’s COVID-19 virus stemmed from their occupational exposures. I find that the nature of the worker’s employment at that time created a much greater risk of the worker contracting the illness compared to their exposures in the general community.
Although the employer indicated in their March 30, 2021 submission that, “It was later determined by the infection Disease Physician at Michael Garron Hospital, that L was the index case and therefore his diagnosis of COVID-19 was considered to be acquired in the community…”, there has been no evidence provided by the employer to support this was the case. This statement, without accompanying documentary evidence, is therefore considered hearsay, to which I lend minimal weight compared to the contemporaneous exposure information.
In summary, I therefore conclude that it is more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of COVID-19.
Policy 11-01-01, Adjudicative Process, records the following with respect to the criteria for an allowable claim:
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 (see 12-01-01, Who is an Employer?)
a worker (see 12-02-01, Workers and Independent Operators)
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
In reviewing the above points for an allowable claim, it is not in dispute that points 1 and 2 are established, i.e. there is an employer and a worker. I also note the positive PCR COVID-19 test of November 4, 2020 was submitted to file. As a result, in light of my earlier finding that it is more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of COVID-19, and given the positive PCR results on file, I therefore accept that the remaining points in the five point check system, i.e. ‘personal work-related injury’, ‘proof of accident’, and ‘compatibility of diagnosis to accident or disablement history’, have been established.
In summary, having regard for all of the information above, I accept the worker has met all the criteria for an allowable claim. I therefore conclude initial entitlement to COVID-19 was appropriately granted in this claim.
CONCLUSION
I conclude the worker was appropriately granted entitlement to COVID-19.
The employer’s objection is therefore denied.
DATED December 2, 2021
L. Diaz
Appeals Resolution Officer
Appeals Services Division