APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20220059
OBJECTING PARTY: EMPLOYER
REPRESENTED by: employer representative
RESPONDENT: WORKER
REPRESENTED by: worker representative
HEARING: HEARING IN WRITING
HEARD by: l. diaz, appeals resolution officer Dated: May 29, 2022
ISSUE
The employer objects to the Eligibility Adjudicator’s July 3, 2020 decision which granted initial entitlement to COVID-19 in the claim.
BACKGROUND
On April 19/20, 2020, while employed as a Registered Nurse (RN), the worker reported to their employer that they began developing symptoms of COVID-19. The worker tested positive for COVID-19 on April 26, 2020. The worker had been with their employer since September 1986.
Eligibility Adjudicator’s decision
Further to the July 3, 2020 decision, the Eligibility Adjudicator determined the worker had met the criteria set out in the COVID-19 Adjudicative Approach Document, i.e. that 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 therefore granted initial entitlement to COVID-19 in the claim.
Employer’s position
The employer contended that based upon the timeline of events and facts available, it appeared more probable that the worker’s unprotected exposure at home was a greater contributing risk than their workplace exposures. As a result, the employer maintained that entitlement should be overturned. The details surrounding the timeline referenced by the employer in their submission will be reviewed in the body of this decision.
Worker’s position
The worker’s representative argued that the decision to grant entitlement to COVID-19 was appropriate and in keeping with policy. Their arguments will also be referenced in the body of this decision.
AUTHORITY
- Workplace Safety and Insurance Act
Section 2(1)
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 find the worker was appropriately granted initial entitlement under the claim to COVID-19. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and for the applicable policy and Adjudicative Advice Documents.
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 following are the pertinent undisputed details surrounding the worker’s exposures and the general facts of the claim, as noted in the file information:
on April 8, 2020, the worker cared for a COVID-19 positive patient
on April 13, 2020, the worker cared for a COVID-19 positive patient
the employer confirms that as a RN, the worker wears all appropriate personal protective equipment (PPE), without breaches
the worker reported to their employer that on April 10, 2020, the worker’s daughter had a known and identified workplace exposure, and that the worker was potentially exposed to their daughter – the worker last worked on April 14, 2020 as the employer placed the worker on a paid leave due to the worker’s potential non-occupational exposures
the worker’s daughter tested positive for COVID-19 on April 15, 2020
according to the Employer’s Report of Injury and the employer’s submission, the worker began exhibiting symptoms of COVID-19 on or around April 19/20, 2020, and initially tested negative on April 21, 2020
the worker subsequently tested positive for COVID-19 on April 26, 2020
The employer was of the view that it was more probable that the worker acquired the virus as a result of their non-occupational exposures to their daughter prior to April 15, 2020. Although I accept there is a possibility that the worker could have acquired COVID-19 as a result of exposure to their daughter, I cannot disregard the worker’s significant occupational exposures to COVID-19, and the criteria for entitlement to COVID-19, as set out in the COVID-19 Adjudicative Support Document.
The file information confirms the worker is a RN and that they cared for positive COVID-19 patients on two occasions, as noted above, prior to exhibiting symptoms. The employer does not dispute that the worker developed symptoms of COVID-19 within the 14-day window after the last known occupational exposure to a positive COVID-19 patient. The worker was last exposed on April 13, 2020 to a positive COVID-19 patient, developed symptoms approximately six days later, and tested positive 13 days later. The worker is therefore well within the incubation period for COVID-19 of 14 days in relation to their occupational exposures. Nevertheless, given the worker’s reported symptoms onset of April 19/20, 2020, I concur with the worker’s representative and find that it is more likely than not that the worker had COVID-19 prior to April 26, 2020, thereby reducing the incubation period from when they were last exposed at work.
In addition to the above, I concur with the worker’s representative that it is entirely possible that the worker could have transmitted the virus to their daughter before they themselves began exhibiting symptoms, given the worker’s occupational exposures to COVID-19 patients on April 8, 2020 and April 13, 2020.
According to the December 8, 2020 document entitled “Assessment of the Worker’s COVID-19 Condition”, the following is recorded regarding the proportion of individuals who acquire COVID-19 without symptoms:
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.⁶⁴ In their most recent guidance, the CDC states that most coronavirus infections are spread by people who have no symptoms. CDC and others estimate that more than 50% of all infections are transmitted from people who are not exhibiting symptoms.⁶⁵ According to the CDC, 24% of people who transmit the virus to others never develop symptoms and another 35% were pre-symptomatic. It also said 41% infected others while experiencing symptoms.
The worker wore PPE in the form of N95 masks at work, as indicated by the employer in their submission. However, as acknowledged by the employer, although wearing such PPE can reduce the risk of acquiring COVID-19, it nonetheless does not prevent a person from acquiring COVID-19. Furthermore, as pointed out by the worker’s representative in their submission, during the time period of the worker’s acquisition of COVID-19, N95 masks were in short supply, and as a result, the worker was only provided with two masks per day – this was against the standard protocol of disposing the masks after each use. The worker would place the masks in a plastic container during their breaks, and would then re-use the mask after their break. Furthermore, during the worker’s break when they were not wearing a mask, the worker would have been unprotected and potentially exposed to COVID-19 from their co-workers.
According to the above Adjudicative Support Document, I must consider whether two factors are met in order to accept entitlement in the claim. First, I must determine 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. Having regard for all of the above information, I therefore accept that the nature of the worker’s employment as an RN caring for COVID-19 patients most certainly created a risk of contracting COVID-19 compared to the general public – the worker was directly exposed to positive COVID-19 patients while working as a RN. The worker also meets the second criteria of confirmation of a COVID-19 condition given the positive laboratory results confirming COVID-19.
In summary, having regard for all of the above factors, 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.
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 reviewing the above points for an allowable claim, it is not in dispute that points 1 and 2 are established, i.e. there is an employer and a worker. Consequently, in light of my earlier finding 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, and given the positive COVID-19 laboratory results, I therefore accept that the remaining points in the five point check system, i.e. ‘personal work-related injury’, ‘proof of accident’, and ‘compatibility of diagnosis to accident or disablement history’, have been established.
In summary, having regard for all of the information above, I accept 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 occupationally related COVID-19.
The employer’s objection is therefore denied.
DATED May 29, 2022
L. Diaz
Appeals Resolution Officer
Appeals Services Division