DECISION NUMBER:
20220028
OBJECTING PARTY:
EMPLOYER
REPRESENTED by:
SELF
RESPONDENT:
WORKER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
STEPHEN CRISOSTOMO, APPEALS RESOLUTION OFFICER
Dated: March 3, 2022
ISSUE
The employer objects to the Eligibility Adjudicator’s decision dated May 5, 2021, which granted the worker initial entitlement to Workplace Safety and Insurance Board (WSIB) benefits for COVID-19.
BACKGROUND
On April 2021, the employer completed the Employer’s Report of Injury/Disease (Form 7) and indicated on April 2021, the worker reported that they developed a headache on April 2021 and on April 2021, they tested positive for COVID-19. The employer advised the worker was performing their regular duties outside, removing/transporting rink boards at the time they developed symptoms.
The worker indicated symptoms may have started on April 2021; however, they related the symptoms to irritable bowel syndrome. The employer reported it was unknown where the worker contracted
COVID-19; however, employees were provided with level 3 masks and social distancing protocols were in place at work.
There is no Worker’s Report of Injury/Disease (Form 6) contained in the record. Spring 2021 the worker provided the following information in relation to the claim:
They worked as a Heavy Equipment Operator for the employer. Their job duties at the time of contracting COVID-19.
They are not sure how they contracted COVID-19.
COVID-19 protocols including Personal Protective Equipment (PPE) were in place at work.
They had no contact with the public at work because community centers were closed.
They were the first and only person to contract COVID-19 at work.
They do not typically wear a mask when outside; however, this depends on the job they are performing.
They eat lunch every day with co-workers at the site (the lunch room is indoors). They socially distance, while eating lunch at their own table. They don’t wear a mask while in the lunch room.
They use the same washroom facilities as other outdoor workers. The washrooms were not open to the public.
Prior to the onset of symptoms, they were working with a co-worker removing an item from various sites. During this task, they would sometimes need to get close to the co-worker, while removing an item.
They tested positive for COVID-19 on April 2021.
They only wear blue procedural masks.
They drive themselves to work and live with two roommates. Neither roommate tested positive for COVID-19. They do their own grocery shopping and have not attended any in-person gatherings.
The worker underwent COVID-19 testing on April 2021, which detected the COVID-19 virus.
Entitlement for COVID-19 was reviewed in May of 2021. Based on the review, entitlement was granted for COVID-19 after it was determined by the Eligibility Adjudicator that it was more likely that the worker contracted COVID-19 at work rather than in the community. This decision was communicated on
May 2021.
The employer objected to the May 2021 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Employer’s Position
The employer submits:
The worker reported that a roommates’ girlfriend tested positive for COVID-19 and the worker had indirect contact with the girlfriend.
There is no exposure history linking the worker’s COVID-19 to their work. There was also no instance of COVID-19 in the workplace. Thus, the worker likely contracted the virus elsewhere.
The worker’s job duties are performed mostly outdoors, with a two person crew. At the time the worker tested positive for COVID-19 they worked with one partner, which they would have driven together. A 4 to 6 person crew would also have assisted with larger rink-boards.
All workers observed social distancing and used masks at work.
There is no evidence of an elevated risk of contracting COVID-19 at work.
AUTHORITY
Operational Policy Manual Document:
Published
11-01-01 Adjudicative Process November 3, 2008
ADDITIONAL REFERENCE
Adjudicative Approach Document titled Novel Coronavirus (COVID-19) Claims dated March 23, 2020
ANALYSIS
I have carefully considered all of the available information and the relevant operational policy in reaching this decision.
I find the nature of the worker’s employment did not create a risk of contracting COVID-19 to which the public at large was not normally exposed to. Thus, I find there is no basis to uphold the allowance of entitlement for COVID-19 in this claim. As such, initial entitlement for COVID-19 is rescinded. The reasons for my decision follow.
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.
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 this case, the worker underwent COVID-19 testing on April 2021, which detected the COVID-19 virus. As such, I am satisfied the worker had a confirmed COVID-19 condition. Thus, I find the second criterion has been met.
Therefore, the question that remains is whether the nature of the worker’s employment created a risk of contracting COVID-19 to which the public at large is not normally exposed.
With respect to COVID-19, I recognize that:
On November 4, 2020, the Government of Canada updated their guidelines on the modes of COVID-19 transmission to recognize aerosol transmission.
COVID-19 spreads from an infected person to others through respiratory droplets and aerosols created when an infected person coughs, sneezes, sings, shouts, or talks. Infectious droplets or aerosols may come into direct contact with the mucous membranes of another person's nose, mouth or eyes, or they may be inhaled into their nose, mouth, airways and lungs. The virus may also spread when a person touches another person (i.e., a handshake) or a surface or an object (also referred to as a fomite) that has the virus on it, and then touches their mouth, nose or eyes with unwashed hands. It remains unclear how easily the virus spreads through contact with surfaces or objects.
The virus is most frequently transmitted when people are in close contact with others who are infected with the virus (either with or without symptoms). Most transmission occurs indoors. The following settings are particularly risky for transmission of the virus:
o closed spaces
o crowded places
o close-contact settings and close-range conversations
o settings where there is singing, shouting or heavy breathing.
- The incubation period for COVID-19 is generally between 2 and 14 days.
The following information in the file is not in dispute:
The worker is not sure how they contracted COVID-19.
COVID-19 protocols including PPE were in place in the workplace at the time the worker contracted COVID-19.
The worker had no contact with the public, while at work.
The worker was the first and only person to contract COVID-19 at work.
The worker’s job duties were performed outside, although they did drive in a vehicle at work with a partner and had lunch indoors with other co-worker’s.
Both the worker and the employer confirmed that the worker wore a mask at work, in accordance with COVID-19 protocols. I also recognize that during lunch, the worker did not wear a mask; however, social distancing was adhered to.
A review of the file fails to reveal a contact source and/or a suspected/probable source of COVID-19 within the workplace. In addition, I am satisfied the nature and location of the worker’s employment activities did not place them at risk for exposure to infected persons and/or substances. There is also no compelling evidence of any opportunity for elevated risk of transmission of COVID-19 in the workplace via a compatible route of transmission, as the worker was not working in a closed space (working outside), in crowded or high density setting/place (no contact with the public and worked in a small group of usually 2 people), or in a close-contact settings, and if they were, they followed COVID-19 protocols (i.e. wearing a mask and socially distancing). As such, I find that the nature of the worker’s employment at the time they contracted COVID-19 did not create a greater risk of the worker contracting COVID-19 compared to the exposures in the general community and that the worker’s employment did not significantly contribute to the worker contracting COVID-19.
As such, I find the weight of the evidence before me fails to establish the worker’s COVID-19 was causally related to their employment. Therefore, I am satisfied that on a balance of probabilities that the nature of the worker’s employment did not create an elevated risk of contracting COVID-19.
Thus, compatibility between the worker’s positive COVID-19 test and their occupational exposures has not been established. As a result, I find the criteria in Policy 11-01-01 for ruling on initial entitlement to WSIB benefits have not been met. Therefore, entitlement to COVID-19 in this claim is denied. Accordingly, initial entitlement for COVID-19 is rescinded.
CONCLUSION
Based on the evidence outlined in this decision, I conclude initial entitlement for COVID-19 is rescinded in this claim.
The employer’s objection is allowed.
DATED March 3, 2022
S. Crisostomo
Appeals Resolution Officer Appeals Services Division