Highlights of Noteworthy Decisions
- Benefit of the doubt
- Causation (medical evidence)
The worker was an ESL teacher. She worked at an ESL day camp on June 18, 2007. She was diagnosed with hepatitis B in October 2007. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the hepatitis. The Board denied entitlement based on an absence of broken skin and a lack of a confirmed source of the hepatitis B at the camp. The Vice-Chair referred to Decision No. 1386/03, which stated that, where it is impossible to know with certainty whether an exposure is actually the cause of a worker's illness, the adjudicator must weigh the different possible causes and decide what is more probable than not. It is not essential that the medical or scientific experts opine firmly in favour of a work-related cause. The adjudicator must be satisfied on the balance of probabilities that the workplace exposure is a significant contributing factor. An inference may, in certain cases, support such a conclusion. Many of the students at the camp were new refugees to Canada, who came from countries where hepatitis B is more common. However, there was no estimate about increased risk. Of particular importance to the Vice-Chair in this case is that a co-worker, who assisted the worker on the day in question, was also diagnosed with hepatitis B in October 2007. The worker and-co-worker did not work together on a daily basis and knew each other only from meetings three or four times per year. Almost one-third of hepatitis B infections in Canada had no identified risk factors. The worker was not involved in any non-work-related high risk factors that are associated with the onset of hepatitis B. The temporal connection between the work at the camp in June and the onset of symptoms in October was significant as it is within the documented incubation period. The evidence was at least equal in weight. Applying the benefit of doubt in favour of the worker, the Vice-Chair concluded that the worker had entitlement for hepatitis B resulting from workplace exposure on June 18, 2007. If required, the Vice-Chair would also find that the worker had entitlement on the balance of probabilities, based on the temporal connection, supportive medical reporting, lack of other potential exposures and the contracting by the co-worker of the same condition at the same time. The appeal was allowed.