the estate of worker v. employer, 2023 CanLII 100121

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20230111

OBJECTING PARTY:

the estate of worker

REPRESENTED by:

worker representative

RESPONDENT:

employer

REPRESENTED by:

not participating

HEARING:

HEARING IN WRITING

HEARD by:

c. da cunha, appeals resolution officer

DATED:

AUGUST 16, 2023

ISSUES

The late worker’s estate objects to the November 29, 2021 and February 23, 2023 decisions of the Occupational Disease and Survivor Benefits Program (ODSBP) Adjudicator. These decisions:

1. Found that the work-related September 14, 2021 COVID-19 infection caused the worker’s death on September 27, 2021;
2. Determined that the late worker did not reach maximum medical recovery (MMR); and, consequently,
3. Denied entitlement to a non-economic loss (NEL) award determination.

The estate seeks:

1. Recognition that the worker reached MMR on September 27, 2021, with a permanent impairment (PI) evident; and, consequently,
2. Entitlement to a NEL award determination.

BACKGROUND

On September 15, 2021, the late worker called in sick because of COVID-19 like symptoms. They had worked with the employer as a Desk Clerk in a social centre containing a homeless shelter and food bank for almost 21 years at the time.

The late worker’s condition worsened and, on September 18, 2021, they were admitted to hospital, where they tested positive for a COVID-19 infection. In hospital, their condition quickly and precipitously declined and, on September 25, 2021, their treatment shifted and focused on end-of-life comfort measures.

On September 27, 2021, the worker passed away.

The WSIB granted initial entitlement to a work-related COVID-19 infection, finding that the only exposure to the virus occurred in the workplace. The ODSBP Adjudicator established September 14, 2021, the last day worked, as the date of injury.

The late worker’s daughter subsequently requested entitlement to a NEL award determination.

On November 29, 2021, the ODSBP Adjudicator determined that the work-related COVID-19 infection was a significant contributing factor to the late worker’s death. On this basis, she granted entitlement to survivor benefits.

The ODSBP Adjudicator then considered the request for a NEL award, denying the same on February 15, 2022. The ODSBP Adjudicator explained that the concept of MMR did not apply in the case of a COVID-19 fatality. Therefore, a NEL award could not be granted.

On January 19, 2023, the estate representative submitted an Appeal Readiness Form, objecting to the February 15, 2022 decision denying a NEL award determination. The representative argued that the late worker’s case was not a “sudden death” one. They suffered from the work-related COVID-19 infection for more than two weeks before they passed. Based on operational policy 11-01-05, Determining PI, and the Workplace Safety and Insurance Appeals Tribunal’s (WSIAT) findings within decision 51/14, the late worker reached MMR on September 27, 2021 with a PI evident. Therefore, a NEL award determination is in order.

The ODSBP Adjudicator reconsidered and upheld the decision to deny a NEL award determination on February 23, 2023. She explained that the late worker did not live with the COVID-19 for a “reasonable period of time” (i.e. one that allows for the assessment the outcomes of any treatment provided).

The ODSBP Adjudicator added that, in order to determine whether a PI exists, the decision-maker assesses the medical condition after a) treatment measures have occurred and, b) a period in which the effects of these treatment measures are monitored. In this case, the period from the date of diagnosis to the date of death was too short and there was no period of recovery allowing for the effects of the treatment. Furthermore, the ODSBP Adjudicator found that the date of death could not be the date of MMR.

AUTHORITY

Operational Policy Manual

Published

11-01-05: Determining PI 18-05-03: Determining the Degree of PI

November 3, 2014 November 3, 2014

ANALYSIS

I have carefully considered all of the available information and relevant operational policies in reaching this decision. Having done so, I find that entitlement to a NEL award determination is not in order.

Operational policy 11-01-05, Determining PI, states that a person reaches MMR when a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury. Furthermore, it defines “significant improvement” as a marked degree of improvement in the work-related injury that is demonstrated by a measurable change in clinical findings.

The policy defines “impairment” as a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss. It adds that a “PI” is an impairment that continues to exist after the individual reaches MMR.

The policy specifically acknowledges that, in some occupational disease cases, due to the nature of the injury and/or disease, a significant improvement in the worker’s recovery may not be expected, and the day following the date of accident may be considered the date of MMR.

Operational policy 18-05-03, Determining the Degree of PI, confirms that a worker who has a work-related PI is entitled to a NEL award determination.

In this specific case, the Operating Area found that the work-related COVID-19 infection was a significant contributing factor to the late worker’s death. This is not in dispute. The only question that remains is whether the late worker reached MMR prior to their death. This is because, as per operational policy 11-01-05, Determining PI, the decision-maker can only find that the individual sustained a work-related PI if, and only if, they first reached MMR.

While a COVID-19 infection can result in a fatality, it is not the type of occupational disease whose nature leads one, from the very onset of the claim, to reasonably infer that significant improvement is not likely. In fact, in the vast majority of cases, the outcome of a COVID-19 infection is a full recovery, even in vulnerable individuals. Therefore, COVID-19 is not an occupational disease in which one can reasonably determine the date of MMR to be the date following the date of accident.

Looking at the facts and circumstances of this case through a retrospective lens, the record shows that, when admitted to hospital on September 18, 2021, the worker already had a two-week history of COVID-19 like symptoms. The employer confirmed that there had been a COVID-19 outbreak in the workplace in September 2021. Therefore, the infection likely occurred in early September 2021 and the late worker’s course with the disease started at that time.

The evidence also shows that the late worker’s symptoms and condition quickly worsened after the date of infection in early September 2021. By September 15, 2021, they were no longer able to perform their sedentary job and, by September 18, 2021, they had to be hospitalized. In hospital, treatment measures were, unfortunately, not successful, and the worker quickly and precipitously deteriorated, as described by their health care providers.

On September 27, 2021, Dr. L. Aoun provided the following description of the worker’s course in hospital:

Worker was a 63 year old who was admitted to Hospital X on September 18, 2021 to 2-week history of increasing shortness of breath cough and sputum production. They were subsequently diagnosed with COVID-19 pneumonia on the backdrop of previous vaccination, with second dose in April 2021. Their past medical history was consistent with COPD on home oxygen as well as previous pulmonary embolism earlier in the year and a history of gastric bypass.

They presented in fairly significant duress in terms of their shortness of breath. Initially it appeared that they would stabilize on a few liters of oxygen via nasal prongs and dexamethasone was added as part of their care. Unfortunately their presentation hospital was matched with what appeared to be a significant comorbid baseline including an albumin of 9. They continue struggle and indeed decline quite rapidly from a respiratory perspective requiring high flow oxygen on the floor. Their sensorium was simultaneously altered by this and that time they were confused. I was able to have a conversation with them on the morning of 25 September which is quite clear and they indeed indicated to me that they did not want aggressive measures in place including ICU level care. They did not want intubation, CPR, or cardiac life-saving drugs. Their decline was quite precipitous from that point on it and indeed the focus was shifted to comfort measures at end-of-life. They were quite comfortable throughout their last days here in hospital. There was brief consideration given to the role of remdesivir in hospital in addition to their broad-spectrum antibiotics in the form of Tazocin. Unfortunately their physiological reserve was unable to keep up with the degree of sepsis that they incurred. They died peacefully in the morning September 27, 2021.

The evidence on record, including Dr. Aoun’s report, confirms that the course of the COVID-19 infection was relatively short (i.e. approximately three weeks), and that the late worker’s condition never plateaued (i.e. stabilized), as meant and required under operational policy 11-01-05, Determining PI. Rather, the late worker’s condition deteriorated quickly, precipitously, and inexorably, resulting in their passing on September 27, 2021. There was no healing of any kind in this case. As the evidence does not show that the late worker reached a plateau in their recovery during the approximately three-week period from early September 2021 to September 27, 2021, I am unable to find that they reached MMR during this period. As I am unable to find that they reached MMR, I also cannot find that they suffered a PI. Therefore, entitlement to a NEL award determination is not in order.

I acknowledge WSIAT decision 51/14. However, that decision involved a case where a worker reached MMR after the date of injury but before their death, which is substantively different than the facts and circumstances of the case before me.

Furthermore, WSIAT decision 51/14 relied on WSIAT decisions 2424/07 and 2089/08 as a precedent decisions. In WSIAT decision 2089/08, the Vice-Chair explained that MMR is reached on the date when further significant recovery is not expected. They added that the concept of MMR reflects the fact that, in the case of many types of accident, the injury is most severe after the accident. Then healing takes place. At times, healing is sufficient that any remaining symptoms are insufficient to constitute a PI. At other times, full recovery does not take place and there is a PI.

In WSIAT decision 2424/07, the Vice-Chair found that, in order to reach MMR, it is necessary for the individual to achieve a “recovery” according to some meaningful sense of the word. In that subject case, the Vice-Chair found that the worker did not achieve a recovery of any type, subsequent to the accident and before their passing. In other words, there was no plateau in the worker’s condition, in any meaningful or ordinary sense, during the short period between his accident and the pronouncement of his death. As he did not make a “recovery” prior to his death, the worker did not reach MMR. Because he did not reach MMR, he did not have a PI. As he did not have a PI, there was no entitlement to a NEL award determination.

The facts and circumstances of the case before me are substantively similar to the case before the Vice-Chair under WSIAT decision 2424/07. Furthermore, my findings in the case before me are consistent with the Vice-Chairs’ findings in WSIAT cases 2424/07 and 2089/08.

CONCLUSION

I find that entitlement to a non-economic loss award determination is not in order.

The estate’s objection is, therefore, denied.

DATED August 16, 2023.

C. da Cunha

Appeals Resolution Officer

Appeals Services Division