Decision #76/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on March 7, 2023 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
On August 31, 2022, the employer submitted an Employer's Accident Report to the WCB, indicating the worker reported on August 28, 2022 that he sustained a respiratory injury at work. The employer noted the worker said that while waiting by triage with a client on August 27, 2022, he was exposed to another individual who was coughing excessively. The worker reported he experienced initial symptoms of respiratory illness on August 28, 2022, and tested positive for COVID-19 that same day.
On September 6, 2022, the worker provided a Worker Incident Report to the WCB, where he described being exposed to an individual in a crowded hall who was "coughing violently". The worker noted he was standing close to the individual who was coughing and was wearing personal protective equipment ("PPE") at the time.
On September 15, 2022, the WCB contacted the worker to gather further information. The worker confirmed his belief that he was exposed to and contracted COVID-19 from an individual who was coughing excessively and was near him while he was waiting at the hospital with a client. The worker noted he was in a small holding area of an emergency department for approximately 45 minutes and within a "couple feet" of the individual who was coughing. The worker reported the onset of his symptoms on August 28, 2022 as sneezing, then fever, chills, cough, fatigue, brain fog, sore throat, sinus congestion, shortness of breath and altered sense of smell and taste, and that he was still currently experiencing fatigue, brain fog and a cough. The worker advised he took a rapid test on August 28, 2022 and confirmed his symptoms with two physicians over the telephone on August 31 and September 1, 2022, respectively. The worker further confirmed he missed his shift on August 30, 2022 and had not returned to work since then, but was expecting to return on September 17, 2022. The worker forwarded a photograph of the rapid test results to the WCB later that day.
On September 16, 2022, the worker contacted the WCB to express his concern that information regarding the individual he was exposed to would not be released to the WCB to confirm the individual was COVID-19 positive.
On October 5, 2022, the WCB contacted the employer to request information with respect to the worker's shifts prior to August 27, 2022 and whether or not the worker had been working with any COVID-19 positive clients. On October 6, 2022, the employer advised that prior to August 27, 2022, the worker had worked August 16 and 17, and there was no record of anyone he had worked with being COVID-19 positive during that period of time. On October 18, 2022, the WCB advised the worker that his claim was not acceptable as they could not confirm he was exposed to COVID-19 while at work.
On October 24, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker submitted additional information, confirming the mechanism of injury and advising that the individual who was coughing had a mask but would remove it periodically. The worker noted his earlier concern that the information regarding the individual's COVID-19 status could not be obtained by the WCB. The worker further noted that his back was often facing the individual who was coughing so any cough or infection was more likely to infiltrate his mask as the protection from that angle was less effective.
On November 18, 2022, the employer responded to the worker's submission, noting the worker did not initially report his injury was work-related, that he indicated in a September 15, 2022 email to his manager that he overheard the individual's healthcare attendants talking about the individual's COVID-19 status, and that they were unable to confirm the status of the individual who was said to be coughing. The employer further noted the worker stated he and the client he was escorting were wearing PPE and no breaches occurred in the PPE. The employer also confirmed that none of the worker's co-workers were COVID-19 positive prior to the worker's initial reporting.
On December 8, 2022, Review Office determined that the worker's claim was not acceptable. Review Office found the evidence on file did not support the worker was exposed to COVID-19 in the workplace at the time he tested positive. Review Office noted the worker indicated in his submission that the coughing individual's attendants told him the individual had COVID-19, and that this was contrary to the worker's initial reporting. Review Office found there was no evidence to support the worker was exposed to COVID-19 in the workplace at the time he developed it. Review Office further found that credible medical websites indicated symptoms may appear 2 to 14 days after exposure to the virus, and the worker's position that he developed symptoms the day after he said he was exposed to a COVID-19 individual was not in keeping with known incubation periods.
On December 19, 2022, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged for March 7, 2023.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On May 25, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies of the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the August 27, 2022 incident are applicable.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
What constitutes an accident is defined in subsection 1(1) of the Act, as follows:
"accident", subject to subsection (1.1), includes
(a) a chance event occasioned by a physical or natural cause,
(b) a wilful and intentional act that is not the act of the worker, or
(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,
that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;…
The worker was self-represented, and provided a written submission outlining the reasons for his appeal. The worker also made an oral presentation at the hearing and responded to questions from the panel.
The worker's position was that he developed COVID-19 as a result of his exposure to an infectious individual at work, and his claim should be accepted.
The worker noted that he was wearing PPE at the time of the incident and did not take it off. He noticed, however, that the infectious person who was right behind him was coughing and obviously short of breath, and was taking his mask on and off. The worker said he was standing quite close to that individual the whole time, mostly with his back to him. He indicated that the PPE he was wearing was a standard procedure mask, and there is a pocket or weak spot in the way the mask fits with respect to the position he was in, and that even when he was facing the individual, his eyes were exposed, which was another route of transmission.
The worker stated that his story had not changed from what he initially reported. The worker submitted that his initial reporting was vague due to concerns with personal health information and client confidentiality and the fear he could face repercussions if he provided further information. He noted that they are bound by The Personal Health Information Act ("PHIA"), and can lose their jobs if they give out information with respect to clients. He said that when he was reporting the incident to his department at work, he was told that the WCB was pretty good about issues of exposure to COVID with respect to healthcare workers. He said he did not worry too much about detail, therefore, and was trying to keep within the constraints of PHIA. He believed that providing minimal information was acceptable and the safer option with respect to PHIA. The worker confirmed, however, that he was in fact told by the attending paramedics who were caring for the infectious individual that the individual had tested positive on a rapid test at home, prior to coming to the hospital.
The worker disagreed with the WCB's assertion that the time within which he developed symptoms was not in keeping with known incubation periods. Referring to a printout from a Government of Canada website which indicated a person might start experiencing symptoms anywhere from 1 to 14 days after exposure, the worker submitted that current information with respect to incubation periods for COVID-19 indicates symptoms can occur within one day after exposure to the virus, as occurred in his case.
The employer did not participate in the appeal.
The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment.
Based on our review and consideration of all of the evidence which is before us, the panel is satisfied that the worker developed COVID-19 as a result of his exposure to the virus in the workplace on August 27, 2022, and that his claim is acceptable.
In arriving at that conclusion, the panel notes that the evidence supports that on August 27, 2022, the worker was working in a confined space at a facility where COVID-19 would be present, and where individuals would be at a high risk of being exposed to the virus.
The evidence shows that the worker was waiting with a client in a small holding area of an emergency department. The worker indicated, in response to questions from the panel, that it was crowded and there was not much room to move in the area or to change places. He said that for the most part, he stayed close to his client, noting the client required ongoing care; that he had to be able to see the monitors; and that there was nowhere else to stand.
The evidence further shows that for 30 to 45 minutes that day, the worker was standing within a couple of feet of the individual who was coughing. The worker's evidence was that the individual was in distress and obviously short of breath and was repeatedly taking his mask off and on. The worker noted that there was nothing he could do about this.
The panel is not satisfied information which the worker provided subsequently was contrary to his initial reporting. The panel accepts the worker's explanation that he was initially vague in describing the incident due to concerns with respect to confidentiality and the requirements of PHIA. The panel notes that the worker indicated from the outset that he was exposed to an individual in the hallway who was "coughing excessively" and "violently".
The panel questioned the worker at the hearing with respect to his interaction with the paramedics who were caring for the individual who was coughing, and accepts the worker's evidence that the paramedics indicated to him that the individual had tested positive on a rapid test before being brought to the hospital. The worker further noted that the individual was repeatedly told, mostly by the attending paramedics, "You have COVID. Put your mask back on. You're going to get people sick."
The panel does not accept that the initial appearance of the worker's symptoms, as reported, was too soon after the worker's attendance at the emergency room on August 27, 2022. The panel is not satisfied that there is a hard and fast rule or time frame within which symptoms may appear. The panel notes that the printout from the Government of Canada website which the worker provided indicates that a person may start experiencing symptoms anywhere from 1 to 14 days after exposure, and that symptoms typically appear between 3 and 7 days after exposure. The panel is not satisfied that the appearance of the worker's symptoms and positive rapid test results on August 28, 2022 were outside the incubation period for COVID-19.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. The worker's claim is therefore acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of June, 2023