The WSIB COVID-19 adjudicative approach and statistics to date-July 2020 update

May 12, 2020

Adjudicating whether a disease is work-related during a pandemic with "community spread" is difficult. Workers may be exposed to increased risk of contracting the disease while travelling to and from work, while at work, while working at home on one side or while engaged in their usual non-work lives on the other side. It is often nearly impossible to tell whether the particular contact that led to the worker's COVID-19 resulted from a work or non-work contact.

One way to address this issue (favoured by worker representatives) is Scheduling the disease by way of presumption, either rebuttable (Schedule 3 to the Workplace Safety and Insurance Act) or irrebuttable (Schedule 4 to the Workplace Safety and Insurance Act). Schedules provide a Disease in one column and a work process or occupation in the other. If a worker has a disease and the corresponding work process or occupation, the presumption in favour of entitlement applies.

Another possible path is case-by-case adjudication. This is the path the WSIB follows for C. Difficile, MSRA and most other infectious diseases that are transmitted human-to-human. This path tends to lead to many more denials.

With COVID-19, the WSIB has chosen a middle path on the issue. The middle path is found in the Board's Adjudicative Advice document, viewable here:

There are two hurdles to climb for a worker to receive COVID-19 entitlement. First, the WSIB requires that the nature of the worker's employment creates a risk of contracting the disease to which the public at large is not normally exposed. This is certainly true of most workers since March who are in indoor contact with more than a few people at work or who must take public transit to get to work. These workers differ from the public at large, who at this time have daily contact only with immediate family at home and less frequent contact for essential supplies such as groceries. Workers must then show that they have COVID-19. With testing not offered in most cases unless the condition is quite severe and with so many false negatives in quite a number of the tests, this is perhaps the bigger of the two hurdles.

The Adjudicative Advice document above makes clear that workers who are removed from work on a preventative basis (ie. workers without COVID-19 symptoms) are not entitled to compensation. To allow entitlement, the WSIB could have used a broad interpretation of the definition of "occupational disease" in the Workplace Safety and Insurance Act, which includes a "medical condition that in the opinion of the Board requires the worker to be removed either temporarily or permanently from exposure to a substance because the condition may be a precursor to an occupational disease", and asked the Legislature to amend the section to confirm the interpretation retroactively in light of the COVID-19 pandemic. It chose not to, and as a result, fewer workers have been removed from exposure than would otherwise have been. This probably has not helped Ontario's infection rate.

The Adjudicative Advice document is entirely silent on the impact of COVID-19 on returning to work with one’s accident employer after an orthopedic injury. Workers are sometimes placed back into unsafe work (from a COVID-19 perspective) to accommodate orthopedic injuries. As far as the WSIB is concerned, this (so far) appears to be not material (ie. insignificant). Further, the WSIB has broad powers of inspection of workplaces under section 135 of the Workplace Safety and Insurance Act to ensure that all proper precautions are taken to prevent accidents and to ensure that the “ways, works, machinery or appliances” are safe, adequate and sufficient. The WSIB could exercise this power to ensure that workers in essential industries are at lesser risk of contracting COVID-19. It has chosen to not do so.

The WSIB has recently released statistics on COVID-19 claims up to July 6, 2020, viewable here:

Most claims have now been adjudicated with about 6% of the approximately 5,000 claims still pending. Of the claims that have been adjudicated, over 80% have been allowed. Over 90% of claims arising from nursing and residential care facilities and agriculture have been allowed, while about 2/3 of claims arising from hospital settings. Most other settings have 40 to 70% allowance rates.