WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20210006
OBJECTING PARTY:
eMPLOYER
REPRESENTED by:
employer representative
RESPONDENT:
WORKER
HEARING:
HEARING IN WRITING
HEARD by:
Kelly Gordon, appeals resolution officer
DATED:
JUNE 21, 2021
ISSUE
The employer, through their representative is objecting to the Eligibility Adjudicator’s (EA) decision dated November 25, 2020. In this decision, the EA allowed initial entitlement to COVID 19.
PRELIMINARY ISSUE
In determining entitlement in this appeal, I note the date of accident is incorrectly documented as
November 6, 2020. As the worker tested positive to COVID 19 on November 4, 2020, the accident date should be corrected to November 4, 2020.
BACKGROUND
On November 4, 2020, this dietary aide worker in a long-term care (LTC) facility tested positive for COVID 19 in a surveillance test conducted by the employer. The worker claimed he contracted
COVID 19 in the workplace, and therefore he submitted a WSIB claim.
The EA obtained further information regarding the worker’s occupational exposure to COVID 19, and determined the worker was in direct, close contact with positive COVID 19 co-workers while working in the LTC facility. The EA also confirmed an outbreak in the LTC facility was declared by Public Health, and the worker’s reported exposure and incubation period was consistent with COVID 19 in the workplace. Therefore, in the decision dated November 25, 2020, the EA allowed initial entitlement to COVID 19. The EA accepted entitlement for both health care and loss of earning (LOE) benefits.
The employer representative submitted the Intent to Object (ITO) Form dated December 10, 2020, and provided further information for review. Although the EA reviewed the information submitted, in the reconsideration decision dated December 17, 2020, the EA upheld the allowance of COVID 19.
The employer representative submitted the Appeal Readiness Form (ARF) dated February 18, 2021, confirming the employer’s objection to the allowance of initial entitlement.
The employer’s objection to the allowance of initial entitlement to COVID 19 forms the basis of this appeal.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Section 2(1) and Section 15
Schedules 3 & 4
Operational Policy Manual
Published
11-01-01 Adjudicative process
November 3, 2008
ADDITIONAL REFERENCE
WSIB Adjudicative Approach Document Titled: Novel Coronavirus (Covid-19) claims March 23, 2020
ANALYSIS
I find the worker does have initial entitlement to COVID 19. In reaching this decision, I have carefully considered all of the available information on file, the employer representative’s submission, the legislation, the relevant operational policy, and the above noted Adjudicative Approach Document.
In the submission attached to the ARF dated February 18, 2021, the employer representative argues initial entitlement should not have been accepted in this claim. The representative states no contact source to COVID 19 was identified in the workplace. Although another staff member also tested positive for COVID 19 the same day, the staff member worked in an entirely different part of the LTC home, and the worker did not have any direct or indirect contact with this person. The representative states other staff members who tested positive for COVID 19 prior to November 4, 2020, were also not in direct or indirect contact with the worker. The representative refers to the worker’s statement on file that confirms he did not believe COVID 19 was present in the wing of the LTC facility that he was working, and he did not have contact with the kitchen runner that tested positive for COVID 19 the same day. The representative states the nature of the worker’s employment protects him from exposure. The worker is in a cohort of a single resident area (C-Wing), and he does not have contact with kitchen staff, which is where the other positive tested employee worked. There was no opportunity for transmission of
COVID 19 in the workplace and at the time of the submission, the LTC facility did not have any infected residents. The representative states the community spread is essentially non-existent, and between March 2020 and December 2020, there were only 31 cases in a population of 88,512 in the County and District. The representative states although the worker’s COVID 19 test on
November 4, 2020, was positive, the test prior to this on October 21, 2020, and the retest done on November 12, 2020, were negative. As such, the representative argues the November 4, 2020 test was a false positive.
In terms of the declared outbreak, the representative states the outbreak was declared because the directive states that a positive test result is enough to declare an outbreak. The public health unit did not require the employer to isolate residents, and the staff were not put on work isolation. No changes were made to the employer’s processes. Public health did not implement any increased inspection, or surveillance actions, and none of the residents tested positive. The representative states that given the worker spends more time at home, or in the community without the strict protective measures implemented by the employer, it is more likely the worker contracted COVID 19 outside of the workplace. That is only if the worker’s test result was not a false positive.
Included with the representative’s submission is the Adjudicative Approach Document: titled Novel Coronavirus COVID 19 claims. The representative also included data from the County and District Health Unit for October, November, and December 2020, a prior WSIB decision that denied entitlement to COVID 19 and a document from Public Health Ontario Titled: COVID 19 Routes of transition – What we know so far.
For the reasons stated above, the representative argues initial entitlement should not have been allowed in this claim, and the representative is requesting this appeal rescind entitlement.
The worker is not participating in this appeal, and no submissions have been provided for my review.
Occupational disease cases are adjudicated under section 2 (1) and section 15 of the Act and by Regulation in Schedules 3 & 4 of the Act. If the disease is not listed in the Schedules and a relevant policy has not been developed, entitlement to benefits and services is determined based on the merits and justice of the case. It must be established that it is more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of the medical condition being claimed. In this case, the worker is claiming entitlement to COVID 19. Noting there are no operational policies for COVID 19, entitlement will be considered based on the merits and justice of the case.
Policy 11-01-01 states that 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 the diagnosis to the accident or disablement history
What needs to be determined in this appeal is whether compatibility has been established between the worker’s positive COVID 19 test and the occupational exposures.
I also refer to the Adjudicative Approach Document titled Novel Coronavirus (COVID-19) that states when determining 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
The above noted document goes on to state that when weighing the evidence, a decision maker assesses the work-relatedness, and whether the worker’s employment duties were a significant contributing factor in the worker contracting COVID-19. Claims are reviewed on their own merit, having regard to circumstances of the individual case.
In this case, the employer submitted the Employer’s Report of Injury, Form 7 dated November 11, 2020. On this form, the employer states on November 4, 2020, the worker underwent surveillance testing at the LTC facility, and the testing results were positive. As a result, the worker lost time from work as of November 8, 2020.
The employer submitted the worker’s COVID 19 testing results that confirm the following:
October 7, 2020, the worker tested negative
October 21, 2020, the worker tested negative
November 4, 2020, the worker tested positive
November 12, 2020, the worker tested negative
Although there is no Worker’s Report of Injury, Form 6 on file, a WSIB customer service representative (CSR) contacted the worker on November 24, 2020, and the worker provided a statement. The worker states he contracted COVID 19 in the workplace. The worker did not experience any symptoms, but confirms he tested positive in a test conducted at his workplace. The worker confirms he is a permanent full time dietary aide at a LTC facility in Ontario. The worker works alongside dietitian managers to help prepare food for residents. The worker also sets up tables, dining areas, and delivers dishes and trays to designated rooms. The worker states he has direct contact with residents, nurses, and visitors in his workplace. Therefore, the worker states there is an increased risk of contracting COVID 19 over and above what the public is normally exposed. The worker has a high level of social/physical contact with patients, staff and visitors. The worker notes he was working in the kitchen as a dietary aide two (2) weeks prior to testing positive to COVID 19. The worker was then moved to the
C-Wing to assist the nurses and personal support workers with delivering meals and picking up trays. While working in the kitchen, the worker states it was challenging at times to practice physical distancing. The worker states he thinks the exposure occurred between October 21, 2020 and November 3, 2020, and an active outbreak in the LTC facility was declared by public health three (3) weeks prior to him testing positive to COVID 19. The worker reports that kitchen runners bring the meals down to the wings, and it is the worker’s job to deliver the meals in his wing. The worker was also assisting with feeding in the two (2) weeks prior to testing positive, but he did not think COVID 19 was present in the C-wing at that time. Although a kitchen runner did test positive for COVID 19, the worker states he did not have direct contact with that individual. However, this individual did work in the main kitchen when she tested positive prior to the worker testing positive. The worker reported that there are approximately
45 residents and 19 staff with confirmed cases of COVID 19 in the LTC facility.
In the same statement, the worker reported he walks to work as he lives three (3) blocks from the workplace. While working, the worker is fully compliant with all of the recommendations from public health. The worker wears a disposable facemask, that is changed twice a day or when it is visibly soiled, wet or damaged. While working, the worker also maintains a distance of six (6) feet from other people.
The worker states that ahead of each shift and at the end of each shift, each staff member is required to take his or her temperature and complete a wellness check. All staff on his floor are required to screen for COVID 19 only when there is a suspected case. Staff are not allowed to go to different floors, and there are only five (5) staff on each floor. There are also no more than 32 residents per floor. The worker states they were using the resident’s TV room to take breaks and for lunch. The lunchroom was closed, and everyone was taking his or her breaks outside. The worker confirmed he did not work for any other employer in the four (4) weeks prior to testing positive, and the worker did not travel in the two (2) weeks prior to testing positive. The worker also confirms he does not know anyone outside of work that he has had direct contact with that have been diagnosed with COVID 19. The worker did lose time from work, as he had to self-isolate after testing positive.
As per the memorandum dated March 23, 2021, the worker called the EA to clarify information as stated to the CSR on November 24, 2020. The worker confirms he did not say there were 45 residents and 19 staff with confirmed cases. Instead, the worker states the confirmed cases include himself, and two (2) other staff. One (1) of them tested positive for COVID 19 the same day as him, and the other tested positive three (3) weeks prior to him.
Based on a review of the evidence before me, I find it is more probable than not that the worker contracted COVID 19 in the workplace. In stating this, I have placed significant weight on the evidence as provided by the worker as well as the information contained in the employer representative’s submission. In the employer representative’s submission, the representative confirms there were three (3) staff in the workplace that tested positive for COVID 19. One (1) staff member tested positive on October 20, 2020, and another co-worker and the worker tested positive on November 4, 2020. The representative provides statistical information for County and District that confirm from March 2020 to December 2020, there were 31 cases in a population of 88,512. I find this significant as three (3) of these cases were in this LTC facility. I have also placed weight on the worker’s statement as the worker confirms he walks to work, he does not know anyone outside of work who has contracted COVID 19, and he cannot relate his positive testing to anywhere outside of the workplace. The worker also confirms he has not travelled, and he does not have concurrent employment.
The employer representative argues that since the worker tested negative on October 21, 2020 and
November 12, 2020, the test on November 4, 2020, must have been a false positive. Although the representative makes this argument, there is no way to prove the test was a false positive. I also find that based on this argument, it is just as likely that the October 21, 2020 or the November 12, 2020 test was a false negative. However, I find it significant to note that since one (1) co-worker tested positive on October 20, 2020, and another tested positive the same day as the worker (November 4, 2020), it is more probable than not that the November 4, 2020, test results were correct.
In terms of the worker’s contact source exposure, I find it important to note the employer confirmed
one (1) staff member tested positive on October 20, 2020. In the statement provided by the worker, the worker states the person who tested positive worked in the kitchen. The worker states he also worked in the kitchen two (2) weeks before testing positive. He was then moved to work in the C-wing. Two (2) weeks prior to November 4, 2020, would be October 21, 2020, which is a day after the person in the kitchen tested positive. As such, based on this evidence, the worker was working in the kitchen during the incubation period (14 days from date of exposure) with someone who tested positive for COVID 19. In the same statement, the worker also states it was challenging at times to practice physical distancing while working in the kitchen. I find this significant as the representative refers to the worker’s statement in their submission, and although the representative confirms the worker incorrectly reported the number of positive COVID 19 cases in the workplace; the representative does not argue that the worker was working in the kitchen two (2) weeks prior to testing positive for COVID 19. The representative also does not argue the person who tested positive on October 20, 2020, worked in the kitchen. While I note that although the worker was wearing the recommended personal protective equipment (PPE) at work, it is my understanding that research findings do not guarantee permanent or total protection when wearing PPE.
In the submission provided, the representative also refers to a claim submitted for the worker’s co-worker that was denied. Although the representative argues the worker had the same exposures as the
co-worker, and argues this claim should also be denied, I am required to consider the facts and circumstances of each case on its own merit, and I am not bound by previous decisions.
For the reasons stated above, I find the weight of the evidence before me establishes the worker’s COVID 19 is causally related to his employment. 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 November 4, 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. I find the criteria in Policy 11-01-01 for ruling on initial entitlement to WSIB benefits has been met. Therefore, I find the worker does have initial entitlement for COVID-19 in this claim.
CONCLUSION
I find the worker does have initial entitlement to COVID 19.
The employer’s objection is denied.
DATED June 21, 2021
Appeals Resolution Officer
Appeals Services Division