APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240058
OBJECTING PARTY: WORKER
REPRESENTED by: SELF
RESPONDENT: EMPLOYER
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: STEPHEN CRISOSTOMO, appeals resolution officer
DATED: JUNE 6, 2024
ISSUES
The worker objects to the Adjudicator’s decision dated February 28, 2023 and reconsideration decision dated September 15, 2023, which denied initial entitlement to Workplace Safety and Insurance Board (WSIB) benefits for an adverse reaction related to their 2021 COVID-19 vaccinations.
BACKGROUND
The worker spoke to the Adjudicator on January 24, 2023 and advised that they started to have ringing in their ears following their first COVID-19 vaccination on March 16, 2021, which worsened after their second vaccination on May 28, 2021 and that they developed hearing loss after their third vaccination on December 22, 2021. The worker advised the COVID-19 vaccinations were a compulsory part of their employment at the time.
The employer completed the Employer’s Report of Injury/Disease (Form 7) dated January 30, 2023 and indicated the worker, a Personal Support Worker (PSW), reported experiencing hearing loss after acquiring their second dose of the COVID-19 vaccine.
Dr. Day’s clinical notes dated April 8, 2021 noted the worker had an earache and poor hearing.
Entitlement to benefits for an adverse reaction to the COVID-19 vaccine was reviewed in February of 2023. Based on the review, the Adjudicator denied entitlement to benefits for an adverse reaction to the COVID-19 vaccines the worker received in 2021 after determining the criteria for entitlement for an adverse reaction to an immunization procedure as outlined in Operational Policy 15-04-10, Immunization Against Infectious Disease had not been met. Specifically, it was determined there was no confirmation that the vaccinations the worker received in March of 2021 and May 28 of 2021 were a mandatory part of their employment. This decision was communicated on February 28, 2023.
The February 28, 2023 decision was reconsidered in September of 2023. In the September 2023 reconsideration decision, the Adjudicator accepted that the vaccinations the worker received were required for their employment; however, there was no casual link between the vaccines the worker received and the development of their tinnitus and hearing loss. Thus, the Adjudicator denied entitlement to benefits for an adverse reaction to the COVID-19 vaccines the worker received in 2021. This decision was communicated on September 15, 2023.
The worker objected to the decisions dated February 28, 2023 September 15, 2023; however, they remained unchanged and as a result, the matters were referred to the Appeals Services Division for further consideration.
Worker’s Position
The worker submits:
- The employer’s COVID-19 policies strongly encouraged and supported all employees who have direct or indirect client/resident contact to receive the COVID-19 immunization. The employer’s policy further stated the employer would facilitate vaccination opportunities and failure to follow the policy would put themselves at risk. Further, there were consequences of not adhering to the policy including unpaid leave of absence. Therefore, the employer’s written policies made it implicit that due to the COVID-19 pandemic that all employees were expected to be vaccinated.
- Weight should be placed on Dr. Day’s medical opinion that the vaccinations they received significantly contributed to their hearing loss and tinnitus.
- Studies provided support a causal relationship between the Pfizer vaccine and the development of hearing loss and tinnitus.
- Entitlement should be allowed for their hearing loss and tinnitus as well as loss of earnings benefits, health care benefits and a non-economic loss benefit.
Employer’s Position
The employer’s representative submits:
- The worker’s uncontrolled diabetes at the time of their initial hearing complaints could have caused their hearing loss. In support of the submission, the representative relies on numerous internet sources.
- The medical articles submitted by the worker linking COVID-19 vaccines to hearing loss are all speculative in nature.
- The denial of entitlement in the claim should be upheld.
AUTHORITY
Operational Policy Manual
Published
15-04-10 Immunization Against Infectious Disease
October 12, 2004
ANALYSIS
I have carefully considered all of the available information and the relevant operational policy in reaching this decision.
I find the worker is not entitled to WSIB benefits for an adverse reaction to the COVID-19 vaccines they received in 2021. The reasons for my decision follow.
Operational Policy 15-04-10 states in part:
Entitlement is in order for any reaction from compulsory immunization procedures.
The immunization must be for the prevention of a disease or infection that is work related.
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.
In my review of Operational Policy 15-04-10, for entitlement to be granted for benefits in this claim, there must be evidence that the worker had an adverse reaction that resulted from a compulsory immunization procedure, for the prevention of a work-related disease or infection.
When determining whether a reaction to a COVID-19 vaccination is work-related, the WSIB considers:
- Whether the vaccination was a compulsory part of the employment.
- A vaccination will generally be a compulsory part of the employment if the employer has a rule or policy that requires employees to be vaccinated or if the employer uses some element of coercion for vaccination (e.g. threat of termination of employment, job changes or penalties).
- Whether there was an adverse reaction caused by the vaccine (my emphasis added).
In this case, while the worker submits the employer’s written policy at the time they received the first two doses of the COVID-19 vaccination strongly encouraged and supported all employees who have direct or indirect client/resident contact to receive the COVID-19 immunization, a review of the policy shows that at the time the worker received their first two doses of the COVID-19 vaccination, COVID-19 vaccination/immunization was not mandated by the employer. As the March 9, 2021 policy, which was in effect until August 10, 2021 clearly states:
Employer strongly encourages and supports all employees who have either direct or indirect client/resident contact to receive COVID-19 immunization.
COVID-19 vaccinations that are provided free of charge by the Government and are voluntary, therefore employees will not be reimbursed for scheduled vaccination time.
Based on my review of the employer’s COVID-19 vaccination policy published September 7, 2021, I am satisfied that the employer had a policy that required all “employees” to be fully COVID-19 vaccinated by October 30, 2021, which was prior to the worker receiving their third COVID-19 vaccination.
However, noting:
- The consequences outlined in the March 9, 2021 policy states:
When an employee is not vaccinated, an assessment of the nature of work being performed, and the risk to the work environment will be conducted. The outcome may include; placing the employee on unpaid leave of absence until COVID-19 no longer poses a significant public health risk, or the risk in the work environment is considered minimal (i.e. community risk level is yellow or green). Employees required to take unpaid leave of absence because of the above may choose to utilize their existing banked time, excluding sick leave.
- The written statements by the worker’s co-workers contained in the record , which indicate employees were told they were required to get the COVID-19 vaccination and if they did not, they would lose clients from their schedule including not being assigned new clients, which two co-worker confirmed happen to them resulting in them having to receive COVID-19 payments.
I am satisfied that the employer used some element of coercion for the worker, a PSW, to get the COVID-19 vaccination. As such, I find the first the criterion has been met.
The question that remains is whether the worker had an adverse reaction from the 2021 COVID-19 vaccinations they received.
A review of the file reveals:
- Dr. Day’s clinical notes dated April 8, 2021 noted the worker had an earache and had poor hearing.
- There was no other mention of any issues related to the worker’s tinnitus and hearing loss until 2022.
- Dr. Day’s letter dated August 14, 2023 indicated he was unable to determine all of the factors that led to the worker’s hearing impairment; however, the timing of the worker’s symptoms leaves the possibility of iatrogenic causes such as vaccination as a contributing factor.
- The file was reviewed by Dr. Markus, Occupational Medicine Consultant (OMC), on September 11, 2023, who opined, on a balance of probabilities, the available evidence does not support compatibility between COVID-19 vaccinations and either tinnitus or hearing loss. The opinion was based on weak evidence in medical literature.
- The file was reviewed by Dr. Spilchuk, OMC, on December 11, 2023, who reviewed the medical literature provided by the worker and opined that although there has been cases and media reports of hearing loss and tinnitus after receiving a COVID-19 vaccine, they were observational and could only be used to generate, not prove, hypotheses. Dr. Spilchuk noted recent cohort studies found no evidence of an increased risk for hearing loss after receiving COVID-19 vaccinations. In addition, a recent systemic review concluded it was unclear whether the vaccine was directly causing hearing loss.
In assessing the available evidence, I find the evidence does not support that the worker’s tinnitus and hearing loss was an adverse reaction to the COVID-19 vaccines they received in 2021. I base my finding on the following:
To establish if a person had an adverse reaction to a vaccine, there must be a causal link between the adverse reaction/injury sustained by the person and the vaccine administrated to them.
I note the worker reported poor hearing after receiving their first COVID-19 vaccine; however, this on its own is not necessarily determinative that there is a causal link between the COVID-19 vaccine and the worker’s reported poor hearing. Thus, while I accept a temporal relationship can help to establish causation, it does not automatically lead to a finding of causation.
There is little population-based evidence in the file that establishes the COVID-19 vaccine is known to be a causal factor in the development of tinnitus and hearing loss.
There is no evidence in the file of any biological plausibility (evidence that the association is compatible with existing theory and knowledge related to how the vaccine works) between the worker’s tinnitus and hearing loss and the COVID-19 vaccines they received in 2021.
Dr. Day’s August 14, 2023 opinion is only suggestive of a “possible” link between the worker’s tinnitus and hearing loss and the vaccines they received and was based solely on the timing of the worker’s symptoms.
I place significant weight on the opinions of Dr. Markus and Dr. Spilchuk for the following reasons:
o Dr. Markus and Dr. Spilchuk are Occupational Medicine Specialists with extensive education and training on Occupational Diseases and their causes;
o Their opinions are supported by medical literature, as referenced in their reviews; and,
o Their opinions are consistent with each other.
Entitlement in the claim must be determined on a balance of probabilities, that being, it is more probable than not that the COVID-19 vaccines the worker received in 2021 significantly contributed to the development of the medical conditions/adverse reaction (hearing loss and tinnitus) they experienced. I recognize that Dr. Day’s opinion was not based on facts and/or research. As such, I find that Dr. Day’s medical opinion is suggestive at best, that it is possible that a relationship exists between the worker’s tinnitus and hearing loss and the COVID-19 vaccines they received in 2021. However, possibility does not rise to the level of probability (it is more probable than not or more likely than not), as required for entitlement to be allowed and the standard upon which I must rely on in making my decision.
Based on the available information, I find the weight of the evidence noted above and contained within the record does not establish the worker’s tinnitus and hearing loss following receiving COVID-19 vaccines in 2021 was causally related to the COVID-19 vaccines they received. Therefore, I am satisfied that on a balance of probabilities that the worker’s tinnitus and hearing loss following receiving the COVID-19 vaccines in 2021 was not caused by the vaccines they received. Thus, the criteria in Operational Policy 15-04-10 for ruling on initial entitlement to WSIB benefits have not been met. Therefore, initial entitlement entitlement to WSIB benefits for an adverse reaction (tinnitus and hearing loss) to the COVID-19 vaccines the worker received in 2021 is denied.
CONCLUSION
Based on the evidence outlined in this decision, I conclude entitlement to WSIB benefits for an adverse reaction (tinnitus and hearing loss) to the COVID-19 vaccines the worker received in 2021 is denied.
The worker’s objection is denied.
DATED June 6, 2024Click or tap to enter a date.
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division