DECISION NUMBER:
20230135
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
VIDEOCONFERENCE – OCTOBER 5, 2023
HEARD by:
DATED:
L. DIAZ, APPEALS RESOLUTION OFFICER
NOVEMBER 3, 2023
ISSUE
The worker objects to the Adjudicator’s September 26, 2022 decision which denied entitlement to an adverse reaction stemming from the COVID-19 vaccine.
BACKGROUND
On March 5, 2021, while employed as a Police Constable, the worker received a COVID-19 Pfizer vaccination following which he experienced symptoms of a sore left arm, fever, chills, fatigue, and coughing. However, the worker was subsequently diagnosed with eosinophilic granulomatosis with polyangiitis (EGPA), an extremely rare form of vasculitis. The worker then claimed for entitlement to EGPA as a result of an adverse reaction stemming from the Pfizer COVID-19 vaccination.
Adjudicator’s decision
In the September 26, 2022 decision, the Adjudicator denied entitlement to occupationally related EGPA on the basis that although there was an initiative by the employer to have their workers vaccinated, it was not mandatory until November 30, 2021, several months later. This decision was reconfirmed in a subsequent April 3, 2023 reconsideration.
Worker’s position
The worker’s representative (WR) maintained the worker was vaccinated at the strong encouragement of their employer, and for reasons related to his employment as a front-line Police Officer. It was the WR’s position the worker should therefore be entitled to benefits for the illness he sustained as a result of his adverse reaction to the vaccine. The WR’s arguments will be reviewed in the body of this decision.
Employer’s position
The employer’s representative (ER) submitted the worker made a personal health decision to receive the COVID-19 vaccination, similar to most Ontarians. The employer indicated that vaccine encouragement was coming from all levels of government and was not a unique employer initiative, and that at the time of the worker’s vaccination, there was not a mandatory vaccination policy in effect by the employer. The ER’s arguments will also be reviewed in the body of this decision.
AUTHORITY
Operational Policy Manual Published
15-02-01 , Definition of an Accident October 12, 2004
15-02-02 , Accident in the Course of Employment October 12, 2004
15-04-10, Immunization Against Infectious Disease October 12, 2004
ANALYSIS
I find the worker has entitlement to an adverse reaction stemming from the administration of the Pfizer COVID-19 vaccination. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and the applicable policies. My analysis and findings are outlined below.
Worker’s testimony
The worker testified that at the start of the pandemic in March 2020 he was working as a primary response officer, i.e. uniform officer, answering 911 calls. He stated it was a new experience working during the pandemic, and that it was terrifying. He recalls the highways were empty at that time. The worker confirmed they responded to 911 calls, which included domestic violence calls, calls at homeless shelters, traffic accidents, break and enters, and robberies. He also made arrests and attended detention facilities. The worker also indicated they would attend medical calls, attend seniors’ residences, hospitals, and deal with homeless and mentally ill individuals.
The worker stated that during the first year he did not test positive for COVID-19. However, there were two periods where he was required to be in isolation. The first was when the worker received a 911 call for a rooming house that had a number of individuals living in it. They arrested a combative individual who became violent and spit at his partner while yelling that he had COVID-19 and needed to go to the hospital. They called an ambulance and physically struggled with him. When the individual got into the police vehicle with them he continued to spit, cough, and yell, and as a result, they believed they were exposed to COVID-19.
At the hospital, an emergency physician recommended that he and his partner isolate for 14 days. He was not permitted to return to the police station, and their equipment was removed in the parking lot. The worker was instructed to isolate at home in a room, so he isolated at home for 14 days in a bedroom. He advised he had a 1 year old and a four year old at the time, and the isolation experience was horrible.
The second documented exposure occurred in June 2020 when the worker attended a family dispute involving a robbery. They had to arrest a mentally ill homeless lady who had just been discharged from a
local hospital. The lady believed she had COVID-19. They were sent back to the station and, once again, their equipment was removed in the rear parking lot. They were not permitted to enter the station and they were sent home for isolation.
Although the worker advised they were potentially exposed to COVID-19 at every call they attended, the above were the two known exposures and isolations periods.
As Police Constables, they were provided with protective equipment which included goggles, N95 masks, and rubberized gloves at the beginning of the pandemic. Approximately 4-6 weeks after the onset of the pandemic, they were no longer provided with N95 masks as those were reserved for health care workers – they were then provided with cloth masks. The worker found his job terrifying, as he was potentially exposed as a result of work and then would return home and potentially expose his family, including his young daughter, but he did the job he promised and was paid to do.
In December 2020, the worker was asked to backfill on a major crime investigative team on a temporary basis as they were short-staffed. The worker was still assigned to his regular platoon, however, he was considered to be on loan until March 2021.
While on this new assignment, he did not wear a uniform, he wore plain clothes. They investigated break and enters, shootings, stolen vehicles, and any major incidents. However, at any given time, if there had been staffing issues, then he would have been expected return to attend to 911 calls. Overall, there was less contact with the general public in the major crime team. However, if any major incident occurred, they would nonetheless still attend the incident – they were just not wearing a uniform. They would still process arrests and do reports. The office was located out of XX division, the same division that he worked out of uniform.
He testified the traffic at the division was constant. There were uniform officers coming and going. They have an ambulance and EMS station attached to the division, and all police and EMS members would come and go. Prisoners would come and go as well. On a couple of occasions, the division had to be decontaminated.
The worker confirmed that he was included in Phase 1 of the vaccine roll-out, further to the March 4, 2021 All Chiefs Memorandum. Although he was on temporary loan to the major crime investigative team, until March 2021, he testified that at any time he could have been called back to his platoon to resume work as a front-line Police Officer, which is why he received this email communication from his employer.
The worker indicated that every day they are required to check their work emails, and he does so at the start of the day. On one particular day, he received an email to book an appointment. His employer had a dedicated Police Service vaccine clinic in which Police Officers were to attend on-duty to have the vaccine administered. Through that email, the worker was assigned a date, time, and location by his employer to attend the clinic.
The worker then advised that the vaccination confirmation email noted he was to receive his vaccine on March 5, 2021 @ 14h00. He confirmed that the vaccines were typically administered to the Police Officers while on shift, and that his vaccine was scheduled during his regular A-platoon shift (uniform shift) while on duty. However, as he was on temporary loan to the major crime team, the actual vaccine time coincided just prior to his shift start time with the temporary unit.
The worker attended a dedicated Police vaccine clinic at Hospital Y. He was not given an option to attend any other clinic. The employer operated the
clinic and had a vaccine implementation plan which included a parking map, a time, a location, and a station where they could remove the magazine from their guns and temporarily store their guns.
Following the vaccination, the worker immediately went to work.
The worker confirmed that technically, there was no mandate at the time he received his vaccination, however, it’s somewhat misleading to say there was no mandate because everything they did was to keep the community safe. In addition, the employer strongly encouraged it, the service assigned his vaccination appointment, and provided a vaccination clinic. They were told that the vaccine would stop transmission of COVID-19, the vaccine would keep them safe, the community safe, and their families and co-workers safe. The worker did what was asked of him, to keep everyone safe, to stop transmission, and to serve the citizens of the city. If the worker was exposed to COVID-19, he would be locked in a room for 14 days. If the worker wasn’t at work, then he couldn’t do his job.
Although the employer indicated the vaccine was not mandated until November 2021, the worker stated that there were penalties to workers who did not get vaccinated. There were jobs with the employer he couldn’t apply to if he wasn’t vaccinated – one of the qualifications was to be vaccinated. He couldn’t accept paid duties, Officers couldn’t write for promotionals, they couldn’t get promoted to the next rank, and they couldn’t use the gym at work. He indicated there is a grievance right now because the employer released a list of the vaccination status of their Officers.
After receiving the vaccine, the worker stated he began to feel unwell, however he was told that was part of the process. The worker then started to feel progressively worse, at which point he decided to go to the hospital. The worker stated he was told his condition is rare. He is unsure of the long-term prognosis, however, one day he will probably need dialysis or a kidney transplant.
The worker stated he was told by his specialist, Dr. Betschel, that this condition would have occurred whether it happened in March 2021 or in November 2021. This vaccination was organized by the employer, it was administered by the employer, and he got the vaccination because he was a Police Officer. He never would have gotten the vaccine if he hadn’t been a Police Officer as it was new, and he did so because he took an oath to serve.
The worker confirmed he is currently working in an accommodated desk job position.
Upon questioning by the ER, the worker confirmed that prior to the pandemic he would socialize. The worker also advised he disclosed his vaccination status to his employer. The worker confirmed that he received information from his union indicating that the vaccine would be mandatory, though he could not recall the date. The worker advised there were Police Officers who elected not to be vaccinated, however, they were not primary response officers, or they merely ignored the email. Those officers were eventually suspended without pay after the mandate came into effect.
The WR provided the following closing submissions:
Policies 15-02-02, and 15-04-10 were referenced as relevant to this case.
Policy 15-02-02 indicates the decision-maker focuses primarily on the activity of the worker at the time of the personal injury to determine whether it occurred in the course of employment.
In this case, the worker was not engaged in a personal activity that was not incidental to the employment.
It is not in dispute that the worker received his first dose during the province’s phase I of the vaccine roll-out, and that it was new and not available to the general public at the time.
The worker was highly encouraged to get the vaccination, as provided by the evidence on file and the worker’s testimony.
Public health authorities were recommending and directing that first responders be vaccinated, as was the Police Association, further to their February 26, 2021 vaccine rollout update to first responders.
The worker followed the advice and encouragement of his employer, his police association, and his government.
He attended a vaccination clinic that was solely for the Police Service first responders, with the vaccination date and time arranged by his employer, confirmed by his employer, and communicated by his employer via his work email. In the February 27, 2021 email, the employer directed him how to pre-register, where to go, and to contact them immediately if he was unable to attend the appointment.
The vaccination resulted in a serious reaction which led to a diagnosis of a serious and incurable disease.
The employer then subsequently mandated the vaccine eight months later, and as the worker pointed out during testimony, whether he received the vaccine in March or in November 2021, he would still have suffered the injury, and the technicality around the mandate should not be a barrier to entitlement. He would not have sustained the injury in question but for his status as a first responder with the employer.
The WR argued that the vaccine mandate effective date should not be a barrier to entitlement in the claim. The WR indicated it was important to be aware of the WSIAT’s interpretation of Policy 15-04-10. The WR referenced decision 1504/21 in which the panel concluded the policy is written in a permissive nature, and referenced paragraph 13 of this decision.
Similar to the circumstances in decision 1504/21, the worker was consistently exposed to infectious disease due to the nature of his employment as a front line Police Officer and during his temporary role in the major crime team.
The WSIAT panel’s approach in decision 1504/21 was also adopted in a subsequent WSIAT 33/23 decision which specifically dealt with a vaccine injury arising from the COVID-19 vaccination.
The WR submitted the worker’s injury arose clearly as a result of his employment, and that entitlement ought to be granted in the case.
The ER provided the following closing remarks:
The ER indicated the WSIB is very clear that in order for entitlement to be granted, there must be evidence to support that the vaccination is mandatory.
The ER provided evidence to support that at the time the worker had his vaccination, it was not mandatory, and that it was not mandatory until November 30, 2021.
The employer, the Police Association, and Public Health partnered together to create an initiative to encourage all members to consider getting the vaccine, which was not uniquely for Police Officers, but for the entire population of Ontario as it was a worldwide pandemic.
While the ER agreed that Police Officers would need to be vaccinated in advance of the November 30, 2021 deadline in order to comply with the mandatory policy, the employer had not even asked its’ staff if they were vaccinated until September 2021. Staff were required to disclose their vaccination status to the employer on September 13, 2021.
The ER referenced memo X which confirmed other Police Officers received the same memo as the worker and chose not to get vaccinated at the time as it was not mandated.
The ER referenced the February 26, 2021 Police Association update on the vaccine rollout which indicated the vaccine was being offered, and that there was no communication at the
time by the employer, the Police Association or Public Health that it was a mandatory vaccine, or that there were repercussions at work from not being vaccinated.
Furthermore, the ER pointed out that the clinic where the worker received his vaccine was run and staffed by Public Health, and not the employer.
The worker chose to get vaccinated and did so on his own time at a Public Health Clinic with the same staff who administered the vaccine to the general public.
The ER pointed out that during the early part of 2021, there was a hunger for the vaccine and a push from the government that its’ population be vaccinated as soon as possible, as evidenced by large marketing campaigns by the government and daily press conferences by the provincial and federal governments. The ER referenced the March 5, 2021 provincial government press release to support this effort.
The ER maintained the objective facts support there was no mandate in effect on March 5, 2021, nor was there any information at the time that there would be a mandate in future.
All citizens were encouraged by the government to become vaccinated as soon as possible, and it was not a unique push for the employer.
The worker chose to get the vaccination on March 5, 2021, and his employer did not mandate it at the time. The ER indicated the actions of the employer to encourage their workers to receive the vaccine should not be received through a narrow lens, particularly given the global health crisis.
With respect to WSIAT decision 1504/21, the ER pointed out that WSIB decision makers are not bound by precedent. The ER also pointed out that the facts of the case in decision 1504/21 were different as the worker in that case received her vaccination during her work shift and was being paid at the time she received it, and, it was administered by her employer.
The ER submitted the worker’s experience in receiving the vaccine did not differ significantly compared to the general public.
In closing, the ER argued the worker made a personal health decision to receive the COVID-19 vaccine, similar to almost all Ontarians. While it was their position it was not a work-related injury, they were sympathetic to the serious adverse impact of the vaccine the worker sustained. The employer asked that the decision remain upheld.
In response to the ER’s closing remarks, the WR requested that I refer to the employer’s Vaccination implementation plan, and specifically appendix C – the reason why this document is critical is because the employer outlined what their plan was regarding the rollout of the vaccination.
In addition, the WR conceded that although the general public was also being encouraged to be vaccinated, the vaccine was not available to the general public, and the worker was only eligible due to his position as a front-line Police Officer. It was the worker’s position as a front-line Police Officer which exposed him to the dangers of the COVID-19 virus.
Analysis
The file medical information documents the worker initially had symptoms of a sore left arm, fever, chills, fatigue, and coughing, after receiving the Pfizer COVID-19 vaccine on March 5, 2021. However, by July 2022, the file medical information confirmed a new onset EGPA stemming from the administration of the worker’s first dose of the COVID-19 mRNA vaccine. The worker’s file was referred to an external Occupational Medical Consultant who indicated in a September 15, 2022 review the worker’s EGPA was directly linked to the COVID-19 vaccination.
The WSIB operational policies which address the issue of entitlement in this particular case are as follows:
Policy 15-02-01, Definition of an Accident, indicates that an ‘accident’ includes:
a willful and intentional act, not being the act of the worker
a chance event occasioned by a physical or natural cause, and
a disablement arising out of and in the course of employment.
Policy 15-04-10, Immunization Against Infectious Disease, records the following:
As the primary disability
Entitlement will be awarded for any adverse reaction arising from compulsory immunization procedures as a pre-employment requirement, or as a compulsory part of the employment, providing the immunization is for the prevention of work related disease or infection.
Immunization in cases of exposure
Awards will be made for medication or injections administered to workers who, due to the nature of their occupation, are exposed to infectious disease.
Entitlement may involve lost time due to necessary isolation, or complications arising from such treatment.
Policy 15-02-02, Accident in the Course of Employment, records the following:
A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.
Place
If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment.
If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work- related activities.
Time
If a worker has fixed working hours, a personal injury by accident generally will have occurred in the course of employment if it occurred during those hours or during a reasonable period before starting or after finishing work.
If a worker does not have fixed working hours or if the accident occurred outside the worker's fixed working hours, the criteria of place and activity are applied to determine whether the personal injury by accident occurred in the course of employment.
Activity
If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.
I acknowledge the ER’s point that at the time the worker received their vaccination, there was no communication from the employer about the specific wording of ‘compulsory’, or ‘mandatory’ in their written communication, in relation to receiving the COVID-19 vaccine.
However, I nonetheless find the worker’s testimony and evidence, which will be reviewed in the points below, supports the worker was strongly encouraged to receive the vaccine, which I find is tantamount to being mandated, and that the option of not receiving the vaccine would have resulted in negative consequences. My finding on this issue is rooted in the combination of following points:
The worker was a front-line Police Officer at the time of his vaccination, and the vaccine was only available to front-line workers at that time.
The employer had a dedicated vaccine clinic for their first responders, and first responder Police Officers received the vaccine while on duty. I acknowledge that at the time the worker received the Pfizer COVID-19 vaccine he was temporarily working for a different unit and arguably, would have had somewhat less exposure than that of a front-line Police Officer. While in the major crime unit, the worker estimated being exposed to individuals at work approximately 40% of the time while in his temporary position, and performed paperwork/office work approximately 60% of the time. In my view, the 40% exposure to individuals as a result of his employment was not insignificant. Nonetheless, the worker testified that their temporary placement in the major crime team was due to end in March 2021, which is when they received their COVID-19 immunization. Of importance, the worker testified he could have been transferred back to uniform work at any time due to potential business needs. Having regard for these facts, I therefore accept that at the time of his vaccination in March 2021 the worker was considered a front-line Police Officer and was therefore a first-responder for the purposes of the Phase I rollout. I also accept that since the worker’s permanent position was in the ‘A’ platoon of his division, he would have received the vaccine in what would normally have been his on-duty shift as a uniformed Police Officer.
I find it is noteworthy that the worker received an email from his employer requesting that he book an appointment for the COVID-19 vaccination. The February 26, 2021 All Chiefs memorandum for Phase 1 COVID-19 vaccination for frontline Police Officers specifically notes that this phase included front-line personnel who provide direct health care services to the general public – the worker’s position was encompassed in Phase 1. This memo further indicates that Chiefs of Police were encouraged to reach out to their local Public Health Units to discuss the vaccination approach and to inform them of eligible staff that require the vaccines for Phase I. In addition, the Police Association February 26, 2022 vaccine rollout email confirmed that “a dedicated… vaccine clinic…has been set up to accommodate this first group of member vaccinations”.
I find it is significant that the worker received his vaccination at a date, time, and place arranged by his employer, further to the email he was issued. At the Hospital X vaccination clinic, the employer had a vaccine implementation plan which included a station where they could remove gun magazines and temporarily safely store their guns during the vaccination process.
I also find it important to mention that the worker described there were penalties for Police Officers who did not get vaccinated. Police Officers could not apply for jobs with the employer if they were not vaccinated. They could not accept paid duties if they were unvaccinated. They could not write for promotionals if they were not vaccinated. Furthermore, if they were not vaccinated, they could not be promoted to the next rank. Lastly, the worker advised they were unable to use the gyms at work if they were unvaccinated. These factors strongly support there were negative consequences communicated by the employer for those Police Officers who chose not to get the vaccine.
The worker testified everything he did as a Police Officer was to keep the community safe. The worker’s position involved responding to 911 calls which exposed him to domestic violence calls, calls at homeless shelters, traffic accidents, break and enters, and robberies. He also made arrests, attended detention facilities, attended medical calls, seniors’ residences, hospitals, and dealt with homeless and mentally ill individuals. This was during a period of time when all Ontarians were being asked to socially and physically distance to help stop the spread of COVID- 19, yet Ontario’s first responders were directly potentially exposed to the virus, as described above by the worker. It is also important to note that as a Police Officer, the worker would not always have had control in relation to the nature and extent of his exposure. The worker described an incident where he and his partner were assaulted/spat upon by an individual with COVID-19, and as a result, they were required to isolate for a period of time. They were told that the vaccine would strop transmission of the COVID-19 virus, that it would keep themselves, colleagues, the general public, and their families safe. This is supported by the All Chiefs memorandum of February 26, 2021 in relation to vaccinations for front-line Police Officers, which indicates, in part that they will “continue to emphasize the prioritization of the health and safety of their first responders” and which thanked them for “your sustained efforts to keep our communities safe and for continuing to emphasize the health and safety of front-line personnel”. This message was also conveyed in the March 5, 2021 Office of the Premier Press Release, with respect to the vaccine distribution system, and that “This approach is designed to save lives, protect those at risk of serious illness, and to stop the virus from spreading”. The worker stated he received the COVID-19 vaccine in order to continue to do his job to serve the citizens of Ontario.
I acknowledge the ER’s point that there was a push from all levels of government for all people to receive their vaccination. However, in this particular case, the employer arranged the date, time, and venue for the worker to be vaccinated, which was unique to the worker’s position as a front-line Police Constable. Furthermore, and of importance, although all persons were encouraged to be vaccinated by all levels of government, the principal difference in this particular worker’s situation compared to the general public is that he was actually a public servant and therefore employed by the government.
I also acknowledge the ER’s argument that the vaccine mandate for the employer was only initially communicated in August 2021, followed by a communication in October 2021 that effective November 30, 2021, all members were required to be fully vaccinated against COVID-19, and that the worker was vaccinated months prior to the August 2021 date. However, in only a matter of months, the employer’s and province’s strong encouragement to Police Officers to become vaccinated changed to a mandatory requirement.
In summary, while I accept that at the time of the worker’s vaccination the employer had not yet made the vaccine compulsory, I am persuaded that the above circumstances and facts lead me to the conclusion that the worker was strongly encouraged and pressured to receive the vaccine, which in my view, is
tantamount to being a mandate. I therefore find the worker has met the criteria for entitlement in Policy 15-04-10.
However, I also considered entitlement under policy 15-02-02, Accident in the Course of Employment. I find the worker has met the requisite criteria of ‘place, time, and activity’ in relation to the receiving the COVID-19 vaccine. At the time the worker received the vaccine, it was at a clinic arranged by the employer (as referenced in my points above), during what would have been the worker’s normal working shift in the ‘A’ platoon, and it was an activity that was strongly encouraged by the employer. The employer also had a station where Police Officers could remove their gun magazines while receiving the vaccine, which further supports it was an activity incidental to their employment, and that it was arranged, approved and sanctioned by the employer.
In light of my above conclusion that the worker has met the criteria for entitlement under policies 15-04- 10 and 15-02-02, I therefore conclude the worker has initial entitlement to an adverse reaction stemming from the COVID-19 vaccine, diagnosed as EGPA.
CONCLUSION
I conclude the worker has initial entitlement to an adverse reaction stemming from the COVID-19 vaccine, diagnosed as EGPA.
The worker’s objection is therefore allowed.
DATED November 3, 2023
L. Diaz
Appeals Resolution Officer Appeals Services Division