Worker who contracted West Nile gets payout

Court says getting virus from mosquito bite was an unexpected event caused by working outside
By Jeffrey R. Smith
|Canadian Employment Law Today

In most work insurance policies, a worker must have suffered from an accident that was a direct result of the job duties to receive a payout. A disease is generally not considered to be an accident but rather the result of natural causes and this will often be backed up by the courts. However, the Ontario Court of Appeal recently added some uncertainty to insurance coverage when it overturned a lower court decision dealing with a construction worker who contracted the West Nile virus from a mosquito bite sustained at work.

Ryszard Kolbuc, 57, was a plasterer applying stucco to the outside of buildings in September 2002 when he was bitten by a mosquito carrying the West Nile virus. Within a few days, he couldn’t walk and was diagnosed with acute flaccid paralysis caused by West Nile. Although mosquito bites were common for outside construction workers, there had been no reported cases of West Nile in Ontario at that point in time. Kolbuc’s insurance policy covered accidents caused by work-related conditions. He argued the materials he used in his work had a smell that attracted mosquitoes and because he contracted the virus through a mosquito bite while performing his job duties, it was a work-related accident and he was entitled to a $130,000 payout in accordance with his employer’s insurance policy. However, the Ontario Superior Court of Justice agreed with the insurance company that a disease is the result of natural causes and can’t be considered an accident. It ruled while Kolbuc’s situation was “tragic,” he wasn’t entitled to compensation under the policy.

Kolbuc took the matter to the Ontario Court of Appeal and was more successful. The court found because there had been no previous reported cases in Ontario, the contraction of the virus was “an unforeseen, unexpected event that was caused by an external source — a mosquito — and falls within the ordinary definition of an accident.”