DECISION NUMBER:

20220072

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT:

WORKER

REPRESENTED by:

(NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

C. DA CUNHA, APPEALS RESOLUTION OFFICER

DATED:

MAY 26, 2022

ISSUE

The employer objects to the February 16, 2021 decision of the Occupational Disease & Survivor Benefits Program (ODSBP) Adjudicator. This decision granted ongoing entitlement to full loss of earnings (LOE) benefits from December 18, 2020 to February 5, 2021.

The employer seeks the denial of entitlement to benefits under the claim effective December 18, 2020.

BACKGROUND

On November 28, 2020, the worker left work early after developing Covid-19 symptoms. They had worked with the employer as a Registered Practical Nurse for over three months at the time.

The worker underwent testing on November 30, 2020, which came back positive for a Covid-19 infection.

On December 15, 2020, the WSIB granted initial entitlement to a work-related Covid-19 infection, and to full LOE benefits from December 4, 2020, the date the worker first lost time from work following the infection, to December 18, 2020.

The employer contacted the WSIB on December 18, 2020, stating that Public Health had cleared the worker to return to work on December 10, 2020, but the worker did not do so.

On January 4, 2021, the ODSBP Adjudicator denied entitlement to LOE benefits from

December 18, 2020. The decision-maker found that there were no objective findings to support an ongoing impairment related to the Covid-19 infection.

The worker objected to the January 4, 2021, and submitted further medical documentation to the case file.

On January 27, 2021, Dr. M. Pariser authorized the worker to return to full regular duties effective February 1, 2021. The worker’s next scheduled shift after that date was on February 5, 2021.

The ODSBP Adjudicator reconsidered and overturned the January 4, 2021 decision on

February 16, 2021. The ODSBP Adjudicator found that, based on the medical evidence, the worker had been unable to work in any capacity from December 18, 2020 to February 5, 2021.

The Employer’s Position: The employer representative argues that the worker’s entitlement under the claim should cease on December 18, 2020 because the medical reporting provided from that date was based on the worker’s subjective reporting. There is no objective evidence in those reports of total disability.

If Public Health clears a worker to return to work, even with a lingering cough or fatigue, the employer allows them to do so. In this case, Public Health cleared the worker to return to work after the 14-day quarantine period. As the employer told the ODSBP Adjudicator on January 25, 2021, they were able to provide the worker with modified hours, if the worker needed them. However, the worker did not attempt to return to work.

AUTHORITY

Section 43 of the Workplace Safety and Insurance Act (WSIA), 1997

Operational Policy Manual

Published

11-02-02: Lost Time Claims

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

January 2, 2015

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, relevant legislation, and appropriate operational policies in reaching this decision. Having done so, I find that the worker is entitled to full LOE benefits from December 18, 2020 to February 5, 2021.

Section 43 of the WSIA prescribes that a worker who has a LOE because of the injury is entitled to payments beginning when the LOE begins.

Operational policy 11-02-02, Lost Time Claims, adds, in part:

Clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or LOE benefits cannot be paid.

Operational policy 18-02-02, Payment and Reviewing LOE Benefits (Prior to Final Review), further clarifies the matter before me by stating, 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 return-to-work process.

There is no dispute that the employer was ready, willing, and able to allow the worker to return back to work as of December 18, 2020 because Public Health cleared the worker to do so. However, as per the authorities listed above, the worker must be able to return to work, despite the work-related disease, in order for LOE benefits to be denied or mitigated. This is, essentially, a medical question.

On December 23, 2020, Dr. S. Ziradkar assessed the worker. After doing so, Dr. Ziradkar found the worker continued to be symptomatic, and recommended the use of a vaporizer, Tylenol, and rest.

Dr. Ziradkar confirmed that a discussion regarding return to work had taken place with the worker, but found them to be unfit to do so at that time, at least until the end of the month.

Dr. Pariser assessed the worker on January 4, 2021. After doing so, Dr. Pariser noted: Due to viremia/Covid, this person has not recovered

At best functions at 30% of physical exertion/stamina

– unable to work as RN x 4 x 12 hr shifts

– will consider return to mod work in 4-6 weeks

On January 15, 2021, Dr. Pariser provided the following report to the WSIB:

I have very little documentation in my file as I suspect the Employee Health Service will have the information requested.

I am aware that this person contracted the Covid 19 virus at work as a RN, as there was an outbreak where they worked.

The worker claims to have experienced significant headaches, weakness, fatigue, poor concentration, which is a partial list of his complaints.

I have only been consulted virtually by phone regarding a request by the employer regarding status to return to work.

The worker informs me the current position is as an RN on a busy floor and that usually works in a rotation of 4, 12 hour shifts.

I have indicated in my recent FAF that in my opinion, the worker has not yet recovered, physically or even cognitively to return to full time position.

No formal testing has been performed.

I am open to the employer performing testing regarding return to modified work or hours, but I believe they likely will be able to return to some duties within 4-6 weeks, making such testing likely not necessary and /or redundant.

As previously noted, Dr. Pariser assessed the worker next on January 27, 2021, and authorized them to return to their full regular duties, effective February 1, 2021. The worker’s next scheduled shift was on February 5, 2021.

From December 18, 2020 to January 27, 2020, the worker was assessed by two different physicians, who both opined that they were unable to return to any work until February 1, 2021 because of the ongoing effects of the work-related Covid-19 infection. There is no contrary medical opinion of greater evidentiary weight on record and there is no evidence of any other non-work-related cause for the wage loss.

The facts and circumstances surrounding the worker’s lost time from December 18, 2020 to February 5, 2021 fall within the parameters set by the relevant legislation and operational policies to grant entitlement to full LOE benefits for the wage loss. In other words, the work-related Covid-19 infection, and its consequences, caused the worker’s wage loss, in full, during this period. Therefore, they are entitled to full LOE benefits from December 18, 2020 to February 5, 2021.

CONCLUSION

I find that the worker is entitled to full loss of earnings benefits from December 18, 2020 to February 5, 2021.

The employer’s objection is, therefore, denied.

DATED May 26, 2022.

C. da Cunha

Appeals Resolution Officer Appeals Services Division