Worker who contracted West Nile gets payout

Court says getting virus from mosquito bite was an unexpected event caused by working outside

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.”

The court agreed with the insurance company’s argument that a disease isn’t an accident by itself, but it ruled a disease can be contracted from conditions created by an accident, using a shipwreck as an example.

“If a sailor is shipwrecked at sea and develops an illness from exposure to the elements, his injury is caused by an accident,” the court explained.

The court set aside the trial judge’s decision and ruled Kolbuc was entitled to the $130,000 insurance payment.

“(Kolbuc) was engaged in work, without intending to cause himself harm, and the harm that did result could not reasonably have been foreseen or expected,” the court said. The decision establishes a disease or illness can be considered a work-related accident for insurance purposes if it can be directly attributed to workplace conditions. Where the West Nile virus is concerned, this raises an important question: Is every case of West Nile virus contracted at work an accident or was this only the case because the virus was unknown in Ontario in 2002 and contracting it was unexpected?

Lia Chiarotto, a lawyer specializing in labour and workers’ compensation issues with Heenan Blaikie in Toronto, says there is nothing preventing courts from reaching the same decision in similar cases. An illness caused by an external source (such as a mosquito bite) can be considered an unexpected event and covered under insurance, unless otherwise stated.

“If (employers and insurance companies) want to exclude this type of event, it must be specifically excluded by the wording of the policy,” Chiarotto says. Because many policies don’t have specific enough wording, it’s likely there will be similar claims in the future, she says.

Chiarotto also points out the decision opens the door for workers’ compensation claims. Under compensation legislation, contributing causes to injury are broadly defined. In a case like Kolbuc’s, where the conditions of working outside and with materials that attract mosquitoes, she says it’s likely in the absence of an insurance policy a workers’ compensation board would find the nature of Kolbuc’s work put him at risk of exposure to the virus and he would be entitled to compensation. Ciarotto notes it wouldn’t matter that the risk of West Nile is now betterknown, as workers’ compensation legislation is a no-fault regime.

Employers and insurance companies can take measures to protect themselves from this outcome in similar cases, however. Chiarotto says an insurance policy can specifically exclude West Nile or other insect-borne diseases from qualifying as accidents deserving coverage. It’s only in the absence of such wording a court will make a finding as in the Kolbuc case. To decrease the likelihood of an incident where workers’ compensation could be involved, employers should take precautions to make the workplace as safe as possible. In Kolbuc’s case, he could have been given insect repellant or protective clothing, especially since his working materials were known to attract mosquitoes.

For more information see:

Kolbuc v. ACE INA Insurance, 2007 CarswellOnt 3008 (Ont. C.A.).

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