APPEALS RESOLUTION OFFICER DECISION
decision number:
20230007
OBJECTING PARTY:
WORKER
REPRESENTED by:
worker representative
RESPONDENT:
EMPLOYER
REPRESENTED by:
SELF
HEARING:
HEARING IN WRITING
HEARD by:
L.CIRILLO, appeals resolution officer
DATED: DECEMBER 12, 2022
ISSUE
The worker objects to the Eligibility Adjudicator’s (EA’s) decisions dated June 23, 2020 & October 27, 2020, which denied initial entitlement for COVID-19.
BACKGROUND
This claim was registered upon receipt of a Form 6, Worker’s Report of Injury dated April 15, 2020. The worker reported that their regular job duties involved assisting residents who were on end of life care. They would assist them with feeding and Activities of Daily Living (ADLs) as well as utilizing applications such as FaceTime and WhatsApp video chats and support them during their final hours. The worker explained that this involved being in close contact with the residents. As a result, they claimed they were exposed to and contracted the COVID-19 virus on or around April 10, 2020. At the time, the worker had been working for the employer as a Counsellor in a long-term care home for 35 years.
In a conversation with the Nurse Consultant (NC) on May 20, 2020, the worker reported that on
April 10, 2020, they developed symptoms of coughing, very hoarse voice, fever, diarrhea and weakness. The worker explained that they sought medical attention for their condition (including a chest x-ray and bloodwork) and that they were tested for the COVID-19 virus on April 14 & 18, 2020; however, they tested negative. The worker also confirmed that they had travelled out of the country from
March 6 – 13, 2020; however, they stated they had self-isolated for two weeks upon their return to Canada.
The Form 7, Employer’s Report of Injury dated April 16, 2020, confirmed that the city health unit had declared a COVID-19 outbreak on March 19, 2020 at the worker’s place of employment and that they reported symptoms consistent with respiratory illness. They also noted that the worker last worked on the affected unit on April 10, 2020.
Initially, there was no medical information on file; however, the worker confirmed that they had had two negative COVID-19 tests, which were performed at an Assessment Centre.
The worker returned to work on June 22, 2020.
It was ultimately concluded that while the worker had assisted residents who were positive for COVID-19, they tested negative for the virus. As there was no confirmed positive diagnosis for COVID-19, the adjudicative criteria had not been met and as a result, initial entitlement was denied. The decision was communicated to the worker in correspondence dated June 23, 2020.
Following the above, Dr. O’Brien, submitted copies of the worker’s medical reporting including their PCR testing results from April 14 & 19, 2020.
On the Intent to Object Form (ITO) dated September 30, 2020, the worker objected to the denial of initial entitlement for COVID-19. In support of their position, they argued the following in part:
They were working in an unsafe environment (masks were faulty);
They were feeding a positive COVID-19 resident, getting them out of bed, repositioning in w/c to prevent falls [sic] and redirecting wandering residents from harm;
The employer knew of this issue as the Ministry of Labour had been called earlier;
They had been away from the work location for a two week period in isolation due to travel outside the country;
At the employer, there were a number of residents and staff that had tested positive and also a number of deaths;
There were so many cases that they even stopped testing;
While they did not test positive, which they state shocked the doctors and nurses, they had all the symptoms and more;
They state they were very sick to the point of severe diarrhea, which prevented them from leaving their home as the need for washroom facilities was ongoing and unpredictable;
The worker stated that the 2 week recovery period was simply not sufficient for them to recover and they would not have passed the screening process to return to work;
No other members of their family showed symptoms or were sick before, during or after their illness;
They were at work for long hours prior to their illness and went straight home to isolate (for fear of transmission to their family);
They argued that they caught this illness from their employer and they were provided with faulty PPE;
For these reasons, they requested that the decision be reconsidered and allowed
Despite the above, the operating area concluded that there was no new substantive information, which would have impacted the original decision and as a result, initial entitlement remained denied. The reconsideration decision was communicated to the worker in correspondence dated October 27, 2020.
As the worker continued to object and the decision remained unchanged, the matter was referred to the Appeals Services Division for further consideration.
Worker’s Position:
In correspondence dated March 1, 2022, the worker’s representative disagrees with the decision, which denied initial entitlement for COVID-19. The representative provides an outline of the government actions and guidelines with respect to the COVID-19 pandemic and details regarding the confirmed and probable cases at the employer during that time. In support of this, the representative has provided copies of various news reports (attached in the associated Tabs). The representative has also provided a claim background, which will not be repeated. The representative argues the following in part:
They continue to rely on the worker’s submission included on the ITO;
The worker is employed at a Long Term Care facility and has worked as a counsellor since July 1984;
They were on vacation in early March 2020 and returned on March 16, 2020, and were immediately placed into self-isolation for 14 days before they could return to work;
The worker’s first date back to work was at the end of March, 2020;
The worker was predominantly assigned to work on the Special Care Unit, performing direct resident care. The Special Care Unit is on one of the floors at which an outbreak had been declared;
They submits there is no question that the worker experienced high risk of exposure to COVID-19 during their nearly two weeks working in April 2020;
During the 12 day period that they were working full time, duties involved providing direct care and assistance to residents in the Special Care Unit;
Given the nature of their hands-on duties, it was impossible for the worker to maintain any distance between themselves and the residents;
During this critical 12 day period in April 2020, the worker was working long hours, 5-6 days per week;
They were required to remain in the facility for their entire shift during this period and they were not permitted to leave even on lunch breaks as media crews were in front of the building watching for days;
The representative argued that the worker was required to perform duties that were outside their regular role as a counsellor;
When they worked in the Special Care Unit in April 2020, they provided direct care to 10 out of 14 residents who passed and several of their colleagues who performed similar tasks in the unit contracted COVID as well;
The representative provided multiple examples of residents the worker was exposed to who had tested positive for COVID-19;
The representative argued that between the period of April 1-12, 2020, the worker did not go anywhere except to work and home;
On April 13, 2020, the worker developed significant symptoms consistent with COVID-19. In particular, they were experiencing coughing, extreme fever surges throughout their whole body, hoarse voice, weakness, extreme fatigue and sleepiness, headaches, breathing problems especially at night causing insomnia, stomach upset and diarrhea. Soon after, the worker experienced hair shedding; which are all classic symptoms strongly identified with COVID-19. These symptoms emerged abruptly and were severely disabling for them;
Dr. O’Brien suspected COVID and arranged for COVID-19 testing twice, on April 14 and again on April 19, 2020 [sic]. Both tests were negative;
He argues however, that it is well established that COVID-19 tests are never a certainty, either negative or positive and there is a margin of error. The test results that were provided to the worker clearly state that “a negative test result does not preclude the presence of this virus.”
He submits that the WSIB has unfairly concluded on the basis of the two negative test results that entitlement to benefits was not established as there was no conclusive evidence that the worker contracted COVID-19;
However, he notes that the WSIB’s Adjudicative Approach Document regarding COVID-19 expressly states that claims “will be reviewed on their own merit, having regard to circumstances of the individual case.”
He submits that the relevant factors identified in the Adjudicative Approach Document strongly weigh in favour of initial entitlement:
The nature of the worker’s employment plainly created an elevated risk of contracting COVID-19;
Multiple contact sources to COVID-19 within the workplace were identified;
The worker was performing full time, direct resident care at “the site of one of the city’s largest outbreaks of COVID-19.”
The nature and location of the worker’s employment activities placed them at risk for exposure to infected persons or infectious substances;
Given the full time, direct resident care they provided from April 1-12, 2020, there were ongoing opportunities for transmission of COVID-19 in the workplace via a compatible route of transmission for the infectious substance;
The worker’s reported symptoms are clinically compatible with COVID-19 that has been established to exist in the workplace;
The worker’s symptoms are clinically compatible with the symptoms produced by COVID-19
The representative argues that when judging the worker’s claim on its unique merits, given the full factual circumstances described above, entitlement is in order on the balance of probabilities;
None of the Board’s decision-making to date has properly weighed the worker’s evidence of specific workplace exposures and the lack of any other known exposure;
The worker had been working on the Special Care Unit where there was a significant outbreak three days prior to onset of symptoms;
This is consistent with the medically accepted period of time before someone who has contracted the virus becomes symptomatic;
Additionally, the symptoms reported by the worker are a checklist of the symptoms that individuals are screened for as indicators of the presence of the COVID-19 virus;
These symptoms did not resolve until July 2020. They were not permitted to return to work due to the severity and extent of these ongoing symptoms;
They have never fully recovered from their disabling symptoms since April 2020. They continue to experience hair loss and heat surges throughout their body to date;
The representative submits that on the balance of probabilities, the workplace exposures made a significant contribution to the worker contracting the COVID-19 virus in April 2020;
The worker had a heightened exposure to COVID-19 at the employer;
They reported their experiential evidence in treating several sick residents who died from Covid;
The outbreak was confirmed by Public Health’s list of active outbreaks and was widely reported in the media;
Dr. O’Brien strongly suspected that the worker had contracted COVID-19. He was not satisfied by the two PCR test results and requested antibody testing for the worker but was denied. He followed up with Public Health with this request, but was denied;
The worker attended a series of telephone assessments/visits with Dr. Vishal Joshi in 2021, who specializes in patients who have longstanding COVID concerns;
In the worker’s circumstances, Dr. Joshi has relayed his opinion that they likely contracted COVID-19 in April 2020;
Regarding the negative PCR tests, the representative noted that the use of PCR testing for COVID 19 detection was quite new as of April 2020. Moreover, false negatives have been a well researched reality of PCR testing;
In support of their position, they submitted a May 2020 study published in the Annals of Internal Medicine by researchers from Johns Hopkins and the National Institute of Allergy and Infectious Diseases, “Variation in False-Negative Rate of Reverse Transcriptase Polymerase Chain Reaction-Based SARS-CoV-2 Tests by Time Since Exposure” (Tab 5);
This study indicates, “On the day of symptom onset, the median false-negative rate was 38% (CI, 18% to 65%). This decreased to 20% (CI, 12% to 30%) on day 8 (3 days after symptom onset) then began to increase again, from 21% (CI, 13% to 31%) on day 9 to 66% (CI, 54% to 77%) on day 21.” Accordingly, on day 8 post symptoms, one in five people would be expected to test negative even if they had COVID;
The assessors’ conclusion cautions that, “Care must be taken in interpreting RT-PCR tests for SARS-CoV-2 infection-particularly early in the course of infection-when using these results as a basis for removing precautions intended to prevent onward transmission. If clinical suspicion is high, infection should not be ruled out on the basis of RT-PCR alone, and the clinical and epidemiologic situation should be carefully considered.”
Likewise, in the enclosed study, “Insight into the practical performance of RT-PCR testing for SARS-CoV-2 using serological data: a cohort study” published in The Lancet (Tab 6), Chinese researchers attempted to contact all close contacts of individuals who had tested positive for COVID-19, but who had tested negative themselves, and invited them to perform an antibody test. The results suggested that the PCR tests missed 48 (36%) out of 134 infected close contacts. “Even rigorous [PCR testing] protocols might miss a substantial proportion of SARS-CoV-2 infections, perhaps in part due to difficulties in determining the timing of testing in asymptomatic individuals for optimal sensitivity,” the authors wrote;
The Government of Canada, Public Health website indicates “Testing for COVID-19: Test
accuracy” as follows:
A negative test usually means you do not have COVID-19
However, the accuracy of a test can vary depending on when your sample is taken during the course of your illness. If you are tested too soon after you were exposed to COVID-19, there may not be enough virus in your body for an accurate result. If this is the case at the time of the test, your test may come back negative, even if you actually have the virus. This would be considered a ‘false negative’ test.
It is important to understand that health care professionals consider a number of factors in making a COVID-19 diagnosis. Other factors may cause a physician to order another test or even diagnose COVID-19 despite a negative result, such as:
symptoms
exposure
timing of your test (Tab 7, emphasis added)
The representative submits that in view of the worker’s severe symptoms and exposure, it is more likely than not that they contracted the COVID-19 virus while providing direct care to infected residents in April 2020;
The representative refers to s. 13 of the Workplace Safety & Insurance Act and submits that the worker developed the illness during the course of their employment;
They further states that there is a confirmed nexus between the workplace exposures and the subsequent illness;
Further, they argue that in the event that the evidence for and against entitlement is equal in weight, that the worker be given the benefit of doubt;
For these reasons, the representative requests the initial entitlement be allowed
Employer’s Position:
In correspondence dated February 27, 2022, the employer agrees with the decision made by the WSIB and submits that it should be upheld. They provide a claim background, which will not be repeated.
In support of their position, they argue the following in part:
The worker reportedly tested twice for the COVID-19 virus and both tests were negative;
The employer submits that there were no clinical findings/medical on file that support the worker’s claim of contracting COVID-19;
As per the April 18, 2020 medical report from the Rouge Valley Healthcare system, the “exposure to probable or confirmed case – no, fever – no, cough – no, COVID-19 virus NOT DETECTED by real time PCR”;
They also note that there is no medical, which supports the worker’s continued absence from work following the negative test results;
The employer opines that the WSIB has correctly made decisions based on the medical information on file and through application of operational policies.
AUTHORITY
Operational Policy Manual
Published
11-01-01 – Adjudicative Process
November 3, 2008
Support Material
Adjudicative Approach Document titled Novel Coronavirus (COVID-19) Claims Applicable
March 23, 2020 up to and including June 10, 2022
ANALYSIS
I have reviewed the record and considered the available information, legislation, relevant operational policy and adjudicative support material in reaching this decision. In considering all of the evidence, including the medical reporting on file and the arguments presented, I find there is no initial entitlement for COVID-19. The rationale for my decision is as follows.
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 [my emphasis added]
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.
With respect to gathering evidence, the above document provides guidance for factors to investigate and states:
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 reviewing the record, there is limited medical information on file. I note that on June 24, 2020, the operating area sent a letter to Dr. O’Brien, the worker’s family doctor and requested the following:
Please provide chart notes for this patient from April 10, 2020 to present including:
Dates of visit for this condition, (first and subsequent)
Chief complaint\history of onset
Clinical findings\laboratory test results
Diagnosis and treatment
Copies of Specialist(s) reports or names\addresses of Specialist(s) seen
Dr. O’Brien responded to the request and submitted the following:
PCR tests for April 14 & 18, 2020 – both negative; the clinical history specifically noted – no fever and no cough. No exposure to a confirmed or probable case (April 18 only); the only reported symptoms were headache and runny nose;
Blood work results from June 16, 2020 –only appear to have tested the urine, Complete Blood Count (CBC) and some other non-related tests;
Chest x-ray April 18, 2020 and June 16, 2020 – both negative
In considering the worker’s job duties and the confirmed outbreak at the workplace, I am persuaded that the worker’s employment created an elevated risk of contracting COVID-19.
However, while I acknowledge the vast material and argument submitted with respect to the possibility of a false negative COVID-19 test, the fact remains that there is no confirmed evidence that the worker did in fact contract the virus. I come to this conclusion on the basis that there is no other medical evidence, from the worker’s treating practitioners (either Dr. O’Brien or Dr. Joshi) on file, which supports that the worker had symptoms that were clinically compatible with the symptoms produced by COVID-19, or that further testing (i.e. antibody tests) was recommended and denied.
It is my understanding that PCR means polymerase chain reaction. It is a test to detect genetic material from a specific organism, such as a virus. The test detects the presence of a virus if one has the virus at the time of the test. The test could also detect fragments of the virus even after one is no longer infected.
A negative test result means one probably did not have an infection with SARS-CoV-2 at the time their specimen was collected. While it has been reported that it is possible to have COVID-19 but not have the virus detected by the test, this is usually the case if one recently became infected but did not have symptoms yet. It can also occur if one has had the virus for more than a week before being tested.
In this particular case, the worker reported that they sought medical attention and were tested during the acute phase of their illness and that they were in fact severely symptomatic at the time. Therefore, I find the likelihood of their test being a false negative to be less likely.
In considering the fact that there is no evidence of a confirmed COVID-19 condition, criterion B has not been met and therefore, I am unable to conclude that the worker did in fact contract the virus.
For these reasons, there is no proof of a personal work-related injury and initial entitlement for COVID-19 is denied.
CONCLUSION
I conclude there is no initial entitlement for COVID-19.
The worker’s objection is therefore, denied.
DATED December 12, 2022
L. Cirillo
Appeals Resolution Officer
Appeals Services Division