WSIB reporting and benefits entitlement in the context of today’s pandemic

The Ontario Workplace Safety and Insurance Board (WSIB) has published a number of helpful resources on its website regarding the current COVID-19 outbreak. Some of the key points on reporting and benefits issues are summarized below.

Reporting

In cases of workers who contract COVID-19 out of and in the course of employment, a claim for benefits may be made, which is discussed in more detail below. 

As for an employer’s reporting obligations, a form 7 must be filed within three days of learning about an employee’s workplace-caused illness if he or she needs treatment from a health professional, is absent from work or earns less than regular pay as a result of a COVID-19 exposure.

Even if employees do not require treatment from a health professional, their  illnesses still must be reported if they are doing modified work at no loss in pay, namely, any change in their regular job while recovering from an illness for more than seven days.  

For cases of possible exposure, but where there is not yet a diagnosis or symptoms of COVID-19, the WSIB is asking that claims not be filed, instead suggesting an exposure incident form be filed through the WSIB’s Program for Exposure Incident Reporting (PEIR) or Construction Exposure Incident Reporting (CEIR) program. These are voluntary reporting programs. The WSIB has indicated that upon such voluntary disclosure, an incident number will be assigned and if the worker subsequently falls ill, the WSIB will process his or her claim more quickly. This link will take you to the necessary forms and provide the number to which completed forms may be faxed.

Claims for benefits

On March 23, the WSIB published an adjudicative approach document discussing how it will treat claims related to COVID-19. In short, it will be possible for a worker to receive benefits for COVID-19. The key to having one’s COVID-19 benefits claim granted will be demonstrating that the COVID-19 arose out of and in the course of the worker’s employment. 

According to this recently published document, there are two primary factors a decision maker will consider in determining the outcome of a worker’s COVID-19 claim: firstly, 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, secondly, whether the WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.

First, the nature of the worker’s employment

According to the adjudicative document, in determining whether the nature of the worker’s employment created an elevated risk of contracting COVID-19, the following questions should be explored:

• 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? 

A review of case law relating to workplace-related illnesses may also shed some light on how COVID-19 cases may be approached. The WSIB is the first line of decision making, beyond which an appeal lies to an independent tribunal, the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The following (non-exhaustive) review of past WSIAT cases shows how outcomes will largely turn on the available evidence.

First, there are number of helpful cases that confirm entitlement, including:

• WSIAT Decision No. 1365/14 involved the case of a registered nurse who contracted the influenza B virus. In this case, it was confirmed that a public health respiratory outbreak was declared at the retirement home in which the nurse worked around the time she contracted her illness. 
  
  Indeed, the evidence established that four staff members and seven residents of the retirement home were ultimately infected. There was no evidence of an outbreak of the influenza in the general community at the time. Therefore, the tribunal accepted that the worker was exposed to a higher degree of risk of contracting the virus than she would have had she not been working in that particular environment. While it is certainly conceivable this worker contracted the influenza B virus outside of her workplace, the tribunal found the evidence in this case sufficient to demonstrate that the workplace exposures were a significant contributing factor to her contracting the disease.
• WSIAT Decision No. 526/04 is similar to the above case in that the worker could have developed his gastroenteritis outside of his workplace, but the evidence was sufficient that his work environment exposed him to a higher risk of contracting the disease. In this case, the worker was installing light fixtures in a building where treated human waste biosolids were loaded onto trucks when he was accidentally exposed to water spray used to clean biosolids from the loading area. He subsequently fell ill. The tribunal accepted an expert’s medical opinion that the worker’s exposure to biosolids in the workplace was the most likely source of his illness. The close temporal connection between the incident and the illness also weighed in favour of the worker’s entitlement to benefits for the illness.
• WSIAT Decision No. 1386/03 is another example of sufficient evidence of risk created by the workplace environment. Here, the worker, who was diagnosed with hepatitis C, worked as a counsellor in a group home for mentally disabled adults. The tribunal accepted there were several possibilities as to the source of the worker’s hepatitis C: exposure from his personal life; his father, who had a history of alcohol abuse and medical problems; etc. However, there was positive evidence that nine of the 16 residents for whom the worker cared had been exposed to hepatitis B, and therefore there was a higher likelihood that this group of residents had also been exposed to hepatitis C than the general population. Further, the worker was involved in the intimate personal care of these individuals, and was exposed to their vomit, feces, and blood. Finally, the worker testified that to his knowledge he did not have any other exposures usually associated with hepatitis B.

Likewise, a number of cases denying entitlement may also be considered, including:

• In WSIAT Decision No. 1954/11, the tribunal confirmed the worker was not entitled to benefits for the viral disease she contracted. The worker was a registered practical nurse employed at a long-term care facility. This nurse was diagnosed with viral encephalitis, and believed her illness resulted from exposure to a patient or a co-worker who were both subsequently diagnosed with shingles. The medical evidence in this case is complex, but it appears the key factor the tribunal considered in denying the worker’s claim was the medical evidence on how the virus is likely transmitted from an individual with shingles. 
• Indeed, the evidence indicated that the worker’s exposure to the virus would necessarily have had to be through direct contact with the lesions of the individual with shingles. Further, the evidence demonstrated that the worker’s contact with her co-worker who was diagnosed with shingles was through a face-to-face conversation, and the tribunal found it highly improbable that the worker had direct contact with the lesions on the patient who was diagnosed with shingles, notwithstanding the fact the worker had some contact through feeding and assisting the individual with toileting. Therefore, the tribunal found it was not probable the worker’s illness was work related.
• In WSIAT Decision No. 2579/07, a paramedic’s appeal from a decision denying initial entitlement to benefits was denied. While the paramedic believed he had contracted a viral disease through exposure at his workplace, the tribunal found the evidence was insufficient to establish this was more probable than not. Indeed, despite his attempts, the worker was unable to produce evidence of a specific call or exposure to a specific patient with whom the worker came in contact during the period preceding his illness. This decision tells us that in order to have one’s claim for benefits for an infectious disease such as COVID-19 granted, the identification of a probable contagious source within the workplace will likely be very important evidence to bring to the tribunal’s attention. 

Second, confirmation of COVID-19

The adjudicative document also discloses that the decision maker will consider whether the worker’s COVID-19 condition has been confirmed. The document indicates that the following questions should be considered in this analysis:

• 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 document therefore appears to indicate that a medical diagnosis of COVID-19 will not be strictly necessary in order to grant benefits for COVID-19, although a worker should at least have his or her symptoms assessed by a medical professional in order to put forward a convincing case.

Take-aways

While the WSIB’s adjudicative document of March 23 confirms workers can seek benefits for COVID-19, whether or not each claim is granted or denied will turn on the particular facts of the case. As this document as well as past WSIAT jurisprudence demonstrates, not only will the worker seeking benefits have to demonstrate he or she actually contracted the disease, the worker must also convince the decision maker the disease was more likely than not contracted because of his or her particular work environment. To do so, a worker should identify a probable source of COVID-19 in his or her workplace; point to the particular aspects of his or her employment activities that place the worker at a higher risk of contracting COVID-19; and demonstrate that an opportunity for transmission of COVID-19 existed in his or her workplace via a compatible route of transmission for the disease.