Hepatitis C case ‘likely’ work related

Health-care worker awarded WCB benefits after contracting disease, suffering mental breakdown despite lack of concrete evidence he got it at work
|employmentlawtoday.com

An appeals tribunal of the Ontario Workplace Safety and Insurance Board has awarded benefits to a worker who was diagnosed with hepatitis C and later had an emotional breakdown.

The unnamed worker was a counsellor for mentally disabled adults from 1980 until 1995. In November 1994 he donated blood and the Red Cross sent him a letter stating it had found evidence of hepatitis C and that he should see his doctor.

The diagnosis was confirmed by a specialist in December 1994. Although the specialist made an immediate association between the workers’ condition and possible risk factors from working in an institutional setting, no claim was made at that time.

On Jan. 27, 1995, the worker’s father died. In March 1995 the worker was transferred to another facility because the residential group home where he had been working was closing.

On March 22, 1995, his first day of work at the new facility, he suffered an emotional breakdown. He never returned to work with the employer and filed a claim for hepatitis C and for mental distress in March 1995.

Entitlement for hepatitis C

There were several medical reports that addressed the question of this worker’s risk factors for hepatitis C.

A report by Dr. W. Depew, his specialist, addressed to the worker’s family doctor, confirmed the diagnosis and stated:

“This man’s only risk factor for the acquisition of hepatitis at least on historical grounds is his involvement with mentally retarded children (sic) in an institution. Although he has not sustained needle sticks he has been scratched many times and he has been bitten on at least one occasion.”

The employer obtained a report from Dr. M. Sherman, a specialist in hepatology at the Toronto General Hospital. He reviewed the medical records of the six residents at the home where the employee worked from 1991 until 1995. Some had tested positive for hepatitis B but few had been tested for hepatitis C.

“The exposure described (between the worker and the residents) is most unlikely to have resulted in transmission of disease,” said Dr. Sherman. “Hepatitis C is actually quite hard to catch.”

Dr. Sherman compared the incidents in question to the medical records of the residents in coming to the conclusion that the likelihood of the worker getting hepatitis C at work was low.

The appeals tribunal wanted more information about the six residents Dr. Sherman reviewed and information about other clients the employee had cared for from 1990 until 1994, given that the worker had tested negative for hepatitis C in 1990.

The tribunal referred questions to Dr. George Sweeney, the tribunal’s medical assessor. He looked at the records of a total of 16 residents that the worker had cared from 1990 to 1994. And while it was impossible to know if any of them had hepatitis C because they hadn’t been tested for it, the fact that nine of the 16 had hepatitis B made it “likely” that some had it because there are similar risk factors for both diseases.

“According to the worker, his duties included cleaning up after residents and this could involve vomit and feces,” said Dr. Sweeney. “In the course of his duties he was subjected to biting and scratching and there was one well-documented exposure to blood on the worker’s skin. These are situation that involve increased risk of contracting (hepatitis C.)”

Dr. Sweeney said it was impossible to say for certain whether the worker contracted hepatitis C at work.

“But it would seem on the basis of the facts that (the worker) is much more likely to have contracted hepatitis C in the workplace,” he said.

The appeals tribunal conceded that one could not be certain where the worker contracted hepatitis C. But it said its role in this case was merely to decide whether it was more probable than not that he acquired his infection during his duties at work. It concluded it was likely work-related.

“While we would prefer more definitive medical or scientific evidence, we consider the evidence sufficient to support a conclusion in favour of the worker,” it said.

Entitlement for mental stress

The appeals tribunal then turned it attention to the worker’s claim for mental stress.

It focused on the March 22, 1995, emotional breakdown and his subsequent treatment for severe depression. Medical reports said there were a number of factors that impacted on his emotional condition, including his father’s death and his emotional reaction to his job re-assignment. It dismissed those two factors.

“The death of the worker’s father was a personal factor,” the appeals tribunal said. “(And) tribunal decisions have not generally granted entitlement to emotional reactions arising out of job changes or even job terminations.”

But the appeals tribunal said it was satisfied the medical evidence supported the notion that the diagnosis with hepatitis C was a “material or significant contributing factor” to his emotional breakdown.

“It is not necessary that the work-related factors be the sole cause of the condition,” it said.

The appeals tribunal ruled the worker was entitled to benefits for hepatitis C and for mental distress as the result of his exposures at work.

The appeals tribunal said the worker has since found another job and is currently working as a real estate agent.

For more information see:

Decision No. 1386/03

, 2004 CarswellOnt 6365, 71 W.S.I.A.T.R. 95, 2004 ONWSIAT 2516 (Ont. W.S.I.A.T.)


Editor's note: The above case was heard in July 2003 and decided in August 2004. Though not a "recent" decision, as most cases covered by Canadian Employment Law Today are, it is still of interest and provides an example of when a worker is given the benefit of the doubt when it's not completely clear the injury or disease was work related.

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