WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20210007
OBJECTING PARTY: employer
REPRESENTED by: employer representative
RESPONDENT: worker
HEARING: HEARING IN WRITING
HEARD by: l. diaz, appeals resolution officer
DATED: June 21, 2021
ISSUE
The employer objects to the Eligibility Adjudicator’s June 30, 2020 decision which granted initial entitlement to COVID-19 under the claim.
BACKGROUND
On May 2, 2020, while employed as a Package Handler/Driver at a warehouse, the worker advised he developed symptoms of fatigue and subsequently tested positive for COVID-19 on May 4, 2020. He was almost 30 years old at the time of testing.
The worker lost time from work effective May 4, 2020. He underwent subsequent testing for COVID-19 on May 18, 2020 at which point results were negative and he was able to return to his full regular duties the following day.
Eligibility Adjudicator’s decision
Further to the June 30, 2020 decision, the Eligibility Adjudicator concluded that at the time of the worker’s symptoms and testing of COVID-19, he was in unwitting direct/close contact with COVID-19 positive co-workers, and as a result, his workplace exposures were a significant contributing factor to the development of this condition. Entitlement for COVID-19 and related LOE benefits was therefore accepted in the claim.
Employer’s position
On behalf of the employer, the representative argued that it could not be said that the worker’s exposure to COVID-19 at his employment was higher than that of the general public. The employer indicated the worker was the first in his work area to test positive for COVID-19. In addition, the employer pointed out that while on shift, the worker always wore a mask and gloves and did not interact with other employees. While on the twilight shift as a driver, he wore a mask, gloves, and face shield in the sort aisle.
Furthermore, the employer representative expressed concern that medical information had not been submitted to file to support the worker had tested positive for COVID-19, which she argued clearly defied Policy 11-01-01 as ‘compatibility of diagnosis to accident history’ and ‘proof of accident’ could not be established. In summary, the employer was of the view that the worker was far more protected in his role at work than he would have been outside of the workplace. As a result, the representative maintained the claim should be denied.
AUTHORITY
- Workplace Safety and Insurance Act
Section 2(1)
Section 15
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 explained in detail below.
Occupational disease claims are adjudicated under Section 2(1) and Section 15 of the Act and by Regulations 3 and 4 of the Act. If the disease for which the worker is claiming entitlement to benefits is not listed in the Schedules and a relevant policy has not been developed, initial entitlement is determined based on the merits and justice of the individual claim.
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 file information confirms the worker is employed as a Package Handler / Driver. His job duties involve sorting packages and delivering them throughout the warehouse. There are no outside deliveries involved.
The worker advised, and the employer confirmed that during the period of time in question, the worker wore a mask and gloves on shift while sorting packages, and would also wear a face shield while performing driving duties. While scientific evidence supports that wearing such personal protective equipment (PPE) helps reduce the transmission of the COVID-19 virus, this PPE is not a guarantee against transmission. Despite wearing the PPE, the worker confirmed he would also take his breaks with his fellow co-workers and he would also be driving around the facility to deliver packages.
Although the employer indicated the worker was the first in his area to test positive for COVID-19, the Eligibility Adjudicator confirmed that during this period of time, there were multiple claims filed with the WSIB for workers with COVID-19 who worked at the employer’s premises. The issue of the worker’s incubation period being clinically compatible with his occupational exposures would therefore be a moot point.
The worker confirmed that there was no one else in his household who had COVID-19 at the time, and his outings away from home were limited to travel to and from work and grocery shopping on occasion.
Additionally, the worker would have been unable to identify any potential sources of COVID-19 cases at work as he would have been unaware of those workers who tested positive for COVID-19, those who filed a claim with the WSIB, and those who were infected with COVID-19 but showed no symptoms.
The document entitled ‘Assessment of the Worker’s COVID-19 Condition’ records the following on page 24: “The CDC states that a significant proportion of SARS-CoV-2 infections (estimated 40-45%) occur without symptoms and that infection can be spread by people showing no symptoms”.
Although I accept the employer’s argument that COVID-19 would have been prevalent in the community at large, the worker confirmed he limited his outings to work and occasionally to the grocery store, thereby significantly minimizing the likelihood of community transmission.
In summary, given the confirmed COVID-19 positive cases at the worker’s worksite, the above statistics that support a significant proportion of COVID-19 infections occur without symptoms and that infection can be spread by people showing no symptoms, 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 his 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 his exposures in the general community.
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.
However, the employer representative also expressed concern regarding the lack of medical information submitted to file in this claim, contending that ‘compatibility between the worker’s accident history and his diagnosis’ and ‘proof of accident’ could therefore not be established, and that the worker had not met all the criteria for an allowable claim.
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 response to the representative’s concern related to the lack of medical information submitted, I note that the document entilted “Adjudicative Approach Document - Novel Coronavirus (COVID-19) claims” records that during the period from March 16 to May 14, 2020 (which falls within the period of the worker’s infection), the Ontario government was not testing for COVID-19 in all cases and many workers may not have sought medical attention for mild infections.
In addition, the document entitled “Adjudictive Support Document, Work-Related Communicable Diseases” indicates that there may be occasions where formal medical evidence is not always available at the time a claim is being adjudicated, particularly for acute, highly-infectious and short-lived diseases. It further records that in these cases, a claim may be considered in the absence of formal medical reports for an acute condition where other evidence establishes the existence of a work-related communicable illness. Factors to be considered include: “confirmation from the accident employer of the worker’s symptoms/illness related to a cluster of illness in the workplace and indication that the worker is to stay home until symptoms subside or not to seek health care while symptomatic”; and, “confirmation from the worker’s treating health care professional or public health unit indicating that the worker is to stay home until symptoms subside or not to seek healthcare while symptomatic”.
In summary, given that the employer was informed of the worker’s positive COVID-19 test results, that there were confimed symptomatic cases present at the employer’s premises, and that the guidance being issued by public health conformed to the direction to stay home, I therefore find it was entirely reasonable for the worker not to have sought medical attention at that time, particularly in light of the highly transmissible nature of the virus. Although it would have been helpful for the worker to have submitted his positive COVID-19 test results, in light of the circumstances noted above, I find it would not preclude entitlement in the claim.
Having considered all of the above factors, I therefore accept that points 4 and 5 in the ‘five point check’ system of Policy 11-01-01, i.e. ‘compatibility of diagnosis to accident or disablement history’ and ‘proof of accident’, have indeed been established in this case. As a result, I find 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 under the claim.
The employer’s objection is therefore denied.
DATED June 21, 2021
L. Diaz
Appeals Resolution Officer
Appeals Services Division