Worker v. Employer, 2021 CanLII 97485

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

decision number:

20210015

OBJECTING PARTY:

wORKER

REPRESENTED by:

worker representative

OBJECTING PARTY:

EMPLOYER

RESPONDENT

RESPONDENT

HEARING:

emPLOYER

WORKER

HEARING IN WRITING

HEARD by:

DATED:

Kelly Gordon, appeals resolution officer

July 24, 2021

ISSUES

Employer’s Objection

1. The employer is objecting to the Eligibility Adjudicator’s (EA) decision dated July 15, 2020, and the reconsideration decision dated September 10, 2020. In these decisions, the EA allowed initial entitlement in this claim for COVID-19.

Worker’s Objection

2. The worker, through her representative is objecting to the Occupational Disease (OD) Adjudicator’s decision dated July 24, 2020. In this decision, the OD Adjudicator denied entitlement to ongoing loss of earning (LOE) benefits as of July 20, 2020.

BACKGROUND

This cleaner for a long term care facility is claiming she contracted COVID 19, from a resident while the worker was performing her regular cleaning duties.

The employer submitted the Employer’s Report of Injury, Form 7 dated June 10, 2020. On this form, the employer states that due to a resident testing positive for COVID 19, all staff (including the worker) underwent COVID 19 testing starting on approximately March 20, 2020. On March 24, 2020, the worker’s test came back positive for COVID 19. The employer questions whether the worker contracted COVID 19 in the workplace noting the worker was on vacation from February 28, 2020 to March 9, 2020. Upon the worker’s return, the worker called in sick on March 9, 2020, March 12, 2020, and

March 14, 2020. The worker returned to work on March 15, 2020, but left early on March 19, 2020, as the worker said she was sick.

A WSIB Nurse Consultant (NC) contacted the worker, and the worker advised she had direct contact in her workplace with a resident that had tested positive for COVID 19. The worker advised she cleaned a spill in this resident’s room. The worker advised her job duties include cleaning various rooms within the facility, including the rooms of positive COVID 19 residents. The worker relates her COVID 19 to her occupational exposures. The worker advised the NC that she was on vacation from

February 28, 2020 to March 6, 2020. While on vacation, she injured her back and neck. These injuries caused the worker’s lost time from work for her first three (3) shifts back from vacation. The worker returned to work on March 15, 2020, and at that time, the worker did not have any COVID 19 symptoms. The worker was given a COVID 19 test in the workplace on March 24, 2020, and the worker tested positive.

As per the medical evidence on file, the worker tested positive for COVID 19 on multiple tests. The worker was also seen at a Regional Health Centre for chest complaints related to COVID 19.

In the decision dated July 15, 2020, the EA states that after reviewing all potential sources of exposure, the nature and location of the worker’s employment, and the worker’s travel activities, the worker’s employment was found to provide the highest risk of exposure for the worker contracting COVID 19. As such, the EA allowed initial entitlement to COVID 19 in this claim. In the same decision, the EA allowed LOE benefits from March 24, 2020, and ongoing.

The employer submitted further information to file, and requested a reconsideration of the decision that allowed initial entitlement in this claim. Although the EA reviewed the new information submitted, in the reconsideration decision dated July 21, 2020, the EA upheld the allowance of entitlement to COVID 19 in this claim.

The claim was referred to an OD Adjudicator who reviewed the updated medical information submitted to file, and determined that as of July 20, 2020, the worker was fit to return to her pre-injury job duties. As such, in the decision dated July 24, 2020, the OD Adjudicator denied entitlement to LOE benefits beyond July 20, 2020.

The employer completed the Intent to Object (ITO) Form dated August 6, 2020, and provided new information for review. Although the EA considered the new information, the EA upheld the allowance of entitlement in the reconsideration decision dated September 10, 2020. The worker representative also completed an ITO Form dated October 8, 2020, confirming the worker’s objection to the denial of ongoing LOE benefits as of July 20, 2020.

The employer submitted the Appeal Readiness Form (ARF) dated January 21, 2021, confirming their objection to the allowance of initial entitlement in this claim. The worker representative submitted the ARF dated March 17, 2021, confirming the worker’s objection to the denial of LOE benefits as of

July 20, 2020.

In this appeal, the issues before me include the employer’s objection to the allowance of initial entitlement to COVID 19, and the worker’s objection to the denial of LOE benefits as of July 20, 2020.

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

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

November 3, 2008

January 2, 2018

ADDITIONAL REFERENCE

WSIB Adjudicative Approach Document Titled: Novel Coronavirus (Covid-19) claims March 23, 2020

ANALYSIS

In reaching the following decisions, I have carefully considered all of the available information on file, the employer’s submission, the worker representative’s submission, the legislation, the relevant operational policies, and the WSIB Adjudicative Approach Document on Covid 19 claims.

Employer’s Position

Attached to the ARF, the employer provided a submission dated January 22, 2021. In this submission, the employer states that noting the timeline of the worker’s symptoms, incubation period, and travel time, and the worker may have been the employer’s first patient to spread COVID 19. The worker returned to work on March 15, 2020, and on March 19, 2020, the worker left work early due to COVID 19 symptoms. The resident became COVID 19 positive on March 27, 2020, after being exposed to the worker. Prior to the worker returning to work, the worker was on vacation in X which is a known COVID 19 hotspot. The worker spent seven (7) days on vacation, and while there, the worker attended a large social gathering. The employer argues the worker may have been infected while on vacation. Although the worker reports injuring her back on March 6, 2019, while loading luggage into the seat storage, this could have been the worker’s first COVID 19 symptom. Following the vacation, the worker was off work sick complaining of back pain. The worker did not seek any medical attention for her back pain until March 22, 2020, which is 16 days after the reported back injury. The employer refers to the medical evidence that states the worker reported extensive COVID 19 symptoms on March 19, 2020. The employer states the resident’s first positive COVID 19 test was on March 25, 2020, which was around the same time the worker tested positive. This was also six (6) to seven (7) days after the resident was exposed to the worker. While at work, and while exposed to the resident with COVID 19, the employer confirms the worker was wearing personal protective equipment.

For the reasons stated above, the employer argues the evidence on file supports it is more probable than not that the worker contracted COVID 19 on vacation, and not at the workplace. The employer is requesting the allowance of entitlement in this claim be rescinded, and all metrics including LOE benefits, and cost exposure be removed from the employer’s records.

Worker’s Position

Attached to the ARF, the worker representative provided a submission dated March 17, 2021. In this submission, the representative argues the evidence on file supports the worker did not recover as stated by the OD Adjudicator on July 20, 2020. Instead, the worker continued to experience symptoms that prevented the worker from returning to work. As such, the representative argues the worker should be granted entitlement to ongoing LOE benefits as of July 20, 2020.

1. Employer’s Objection – Does the worker have initial entitlement to COVID 19?

For the reasons that follow, I find the worker does have initial entitlement in this claim for COVID 19.

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 testing results, 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:

1. 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

2. 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, I refer to the OD Adjudicator’s memorandum on file dated June 12, 2020. As per this memorandum, the worker was contacted, and advised that although she was wearing a mask and gloves, the worker did have contact with a resident in the workplace who tested positive for COVID 19. The worker states she began to develop symptoms on March 19, 2020. The worker’s symptoms included nausea, back pain, rashes, loose stools, fatigue, and tightness in her chest. Although the worker did seek medical attention for an inner ear infection at City Hospital on March 20, 2020, the worker was not seen for COVID 19 symptoms. While at work on March 24, 2020, the worker was given a COVID 19 test. This test was given to all staff as the employer advised there was a resident who tested positive for COVID 19. Following the first COVID 19 test, the worker underwent eight (8) more COVID 19 tests. Seven (7) tests were positive and two (2) were negative. All tests were done at the workplace except

one (1) negative test that was done at the hospital.

In the memorandum dated July 14, 2020, the worker states she flew by plane to her vacation, and stayed there on vacation from February 28, 2020 to March 6, 2020. The worker states that while on vacation, she hurt her back. As a result, she called in sick to work for her first three (3) scheduled shifts after returning from vacation. These shifts were March 9, 2020, March 12, 2020, and March 14, 2020. The worker returned to work on March 15, 2020. The worker later received a call from public health stating she had been in close contact with someone in the workplace that tested positive for COVID 19. The worker states that approximately 19 days after returning from vacation, she cleaned a spill in a resident’s room who was COVID 19 positive. The worker did not test positive for COVID 19 until March 24, 2020.

The worker called the WSIB back on July 14, 2020, and advised that she contacted the local health unit, as she wanted to make sure she had the correct dates. The public health unit confirmed the worker first tested positive for COVID 19 on March 27, 2020. The positive results were received on March 31, 2020.

The employer submitted the Employer’s Report of Injury, Form 7 dated June 10, 2020. On this form, the employer states the worker was on vacation travelling from approximately February 28, 2020 to March 6, 2020. Although the worker was scheduled to work on March 9, 2020, March 12, 2020, and March 14, 2020, the worker did not work on these days as she called in sick. The worker returned to work on March 15, 2020, and also worked her scheduled shifts on March 17, 2020, and March 18, 2020. On March 19, 2020, the worker only worked a half day as the worker left work early stating she was sick. On around March 20, 2020, the employer did a mass COVID 19 employee testing as one (1) of the residents tested positive for COVID 19. The employer confirms the worker was in the approximate area of a 90 year old resident who tested positive for COVID 19. While the employer states there is no evidence the worker was in direct contact with this resident, the worker advised the employer she cleaned up a spill in the resident’s room. The worker, and 15 other employees were advised to self-isolate as per the Ontario Emergency Orders and Directives. The worker’s testing results then came back as positive for

COVID 19. The employer states they have had multiple false positive, and contaminated swab results, and none of their vulnerable residents were severely compromised, ill, or died from COVID 19. The employer states that multiple testing errors of positive results have been followed by negative ones. The employer states their home is COVID 19 free. The employer confirms the worker was offered modified work that included cleaning touch surfaces, while working at her own pace.

In my review of the medical evidence on file, I note Dr. Belanger completed a Health Professional’s Report of Injury, Form 8 dated June 10, 2020. On this form, Dr. Belanger states the worker was asked to take a COVID 19 test at work as she has been exposed to a positive COVID 19 patient. The worker’s diagnosis as provided on the Form 8 is COVID 19.

Reports from City Regional Health Centre Emergency Services are on file confirming the worker was first seen on March 22, 2020. The worker was seen for suspected COVID 19, and neck pain. In the notes provided, the worker is reported to have travelled from February 28, 2020 to March 6, 2020, and the worker reported no fever, no cough, no shortness of breath, and no sore throat. The right side of the worker’s neck was painful to touch, and the worker reported she developed neck and pain behind her ear the day before. There is no evidence in the March 22, 2020, report that the worker was provided with a COVID 19 test at the hospital on this date.

The hospital emergency reports are on file dated April 27, 2020, confirming that when seen, the worker stated she was advised by public health to seek medical attention at the hospital emergency department noting her reported symptoms of chest tightness and shortness of breath. The worker underwent a chest pulmonary angiogram with IBV contrast. The results show the following:

“No evidence of pulmonary emboli, bands of subsegmental atelectasis in the right lower lobe, and right middle lobe, more minor dependent atelectasis in the lower lobes favoured to be some dependent atelectasis, and allowing for that presently no specific CT findings to indicate involvement with COVID 19.”

The hospital also submitted reports confirming the worker was seen at the hospital drive site on

May 22, 2020, and May 25, 2020. During these visits, the worker underwent COVID 19 testing, and the results were positive.

Based on my review of the evidence, 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 both the worker and the employer. I first refer to the information the employer provided on the Employer’s Report of Injury, Form 7. As confirmed by the employer, the worker returned to work on March 15, 2020. The employer states that on or around March 20, 2020, the employer did a mass

COVID 19 testing because a resident had tested positive. However, I note that in the employer’s submission, the employer states the resident tested positive for COVID 19 at the same time as the worker. I find this is inconsistent with the information provided on the Form 7 that indicates the reason the worker was provided with the COVID 19 test is because a resident had already tested positive. The employer also states the worker along with 15 other employees were instructed to self-isolate after being exposed in the workplace. I accept this to support, a resident tested positive, and as such the worker and other employees were advised to self-isolate while they waited on their testing results. Although the employer also notes they have had many false positive tests, I find it significant that the evidence supports the worker received eight (8) positive test results. I find it would be very unlikely that the worker would receive eight (8) false positive tests.

In terms of contact source exposure, I have also placed weight on the evidence that supports the worker is unable to identify any specific exposure while on vacation, and the worker confirms she is not aware of any potential source exposures through family or friends. However, the worker is able to identify a specific incident while in the room of a resident who did test positive for COVID 19. Although the employer argues the worker’s occupational exposure was insignificant, I disagree. Instead, I accept the evidence supports it is more probable than not that the worker was exposed while she was in the resident’s room as reported by the worker.

In terms of the onset of symptoms, I acknowledge the worker has provided different dates for when she developed an onset of COVID 19 symptoms. However, the worker has confirmed that upon her arrival back from Florida, the worker only had back pain, and the worker relates this back pain to a specific incident when moving her luggage. As such, there is no evidence to relate the worker’s back pain to COVID 19. I have also placed weight on the March 22, 2020, medical report from Peterborough Hospital as this report confirms that when seen on this date, the worker reported no symptoms of coughing, fever, shortness of breath, or a sore throat. Instead, the worker only reported neck and right ear pain that started the day before. Although the hospital triage reports do not provide a diagnosis, the worker states she was diagnosed with an inner ear infection. This is consistent with the March 22, 2020, hospital reports on file. I also find it significant to refer to the July 14, 2020, memorandum in which the worker confirms she is not sure of the dates, and therefore called the local health unit, to confirm she had the correct dates. The public health unit confirmed the worker first tested positive for COVID 19 on

March 27, 2020. This would be 21 days after returning from Florida, but only 12 days from the date the worker returned to work (March 15, 2020).

For the reasons stated above, I find the weight of the evidence before me establishes the worker’s COVID 19 is causally related to her employment. Therefore, I am satisfied that on a balance of probabilities the nature of the worker’s employment created an elevated risk of contracting

COVID 19, and I accept the multiple positive COVID 19 tests as well as the medical reports on file, confirm the worker’s diagnosis of COVID 19. Thus, I accept compatibility has been established between the worker’s positive COVID 19 test results and the worker’s occupational exposure while working in the long term care home. 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.

2. Worker’s objection – Does the worker have entitlement to ongoing LOE benefits as of July 20, 2020?

For the reasons that follow, I find the worker does not have entitlement to LOE benefits as of

July 20, 2020.

I refer to Policy 18-03-02 that states in part if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process.

Prior to determining the worker’s entitlement to LOE benefits as of July 20, 2020, the worker’s level of impairment must first be determined.

Level of impairment

I refer to Dr. Belanger’s July 20, 2020, clinical note that confirms the worker was seen for ongoing persistent COVID 19 symptoms that include extreme fatigue, no stamina, the need for napping and sleeping, dry cough, and shortness of breath on exertion. The worker reported she gets up early, and goes for short walks to assess her status, and see how far she can walk. The worker usually walks

three (3) to four (4) kilometres at a slow pace, and she stops four (4) times while walking. Dr. Belanger states the worker continues to have persistent COVID 19 symptoms that are improving, but are limiting the worker’s ability to return to work. Dr. Belanger states she completed a Functional Ability Form (FAF) stating the worker is not to return to work until September 30, 2020. The worker has been referred for pulmonary function testing (PFT) that are still pending.

Based on my review of the medical evidence, I find that as of July 20, 2020, the worker is partially disabled, and fit to perform suitable modified duties. In making this determination, I have placed significant weight on the clinical reports received from Dr. Belanger, and the reports from City Regional Health Center. I find it important to note the medical evidence supports that prior to

Dr. Belanger’s July 20, 2020 report, the worker no longer tested positive for COVID 19. Dr. Belanger’s report also confirms the worker is going for daily walks, and she is able to walk three (3) to four (4) kilometres with approximately four (4) rest breaks. While I note Dr. Belanger states the worker has persisting symptoms of shortness of breath on exertion, fatigue, and a cough, I do not find these symptoms rendered the worker totally disabled. Especially noting the worker’s ability to walk long distances on a daily basis. Instead, I find the worker’s reported symptoms could be accommodated with suitable work.

For the reasons stated above, I find that as of July 20, 2020, the worker is partially impaired, and fit for suitable work.

Available Suitable Work

I note the Employer’s Report of Injury, Form 7 dated June 10, 2020. On this form, the employer states the worker was offered modified duties that involve cleaning touch surfaces, and the worker is able to perform these duties at her own pace. The employer states that although the worker declined the duties offered, the employer will always have modified work available for the worker to work at her own pace.

Having considered all of the evidence, I find the worker is partially impaired, and that as of July 20, 2020, the worker was fit to perform the modified duties offered by the employer. In making this determination,

I have placed significant weight on Dr. Belanger’s July 20, 2020 report. While I acknowledge that in this report Dr. Belanger confirms the worker continues to have symptoms, I do not find the symptoms reported render the worker unfit to perform the modified duties offered. Dr. Belanger reports the worker only has shortness of breath on exertion, and the worker is able to walk three (3) to four (4) kilometres daily. Although the worker reports having to rest four (4) times while walking, I find this activity supports the worker is only partially impairment. Although I accept the worker would not be able to perform her regular job duties at her regular pace, I find there are no objective findings to support why the worker could not perform the modified duties offered by the employer especially noting the employer confirms the worker can work at her own pace. I specifically note the employer states they will always have modified work available for the worker to work at her own pace. Based on the evidence, I find the modified duties offered are suitable. Therefore, I find the worker does not have entitlement to LOE benefits as of July 20, 2020.

CONCLUSION

Employer’s Objection

I find the worker does have initial entitlement to COVID 19 in this claim.

Worker’s Objection

I find the worker does not have entitlement to LOE benefits as of July 20, 2020.

The worker and the employer’s objections are denied.

DATED July 24, 2021

Appeals Resolution Officer

Appeals Services Division