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HomeMy WebLinkAbout1986-1335.Duputs.89-06-23IM TER RATTER OF AN ?.RR~TRRT~ON Under TBB CROWN EMPLOYEES COLLBCTIVB(BBRGAIWIEG ACT I Before j ! TRE GRIZVANCB SETTLERBRT BOARD Between: ! OPSEU (Duptifblj I - and - [ I ! The Crown in Right of kn-itario (Ministry of CorrectionaliServices) 1 Eearinq: April 14, 1988 Grievor Employer Vice-Chairperson Member Member Before: P. KnoDf I. Thomson D. Wallace For the Grievor: R. Ross Wells ! Martha MilzynsEi Counsel I Gowling & Rend&son Barristers & Solicitors For the Emolover: Susan A. Currie J. Laberge Staff Relations Officer Management Board of Cabinet I. I INTERIM AWARD II ___--__ ----- This case concerns the question of the Employer’s obligation to make pension contributions for an employee wno ha.% been &sent for over six months while in receipt of Workers' Comgensation benefits. There is no dispute over the relevant facts. They ar3 set out in detail in ,the interim award issued 5~ this Board concerning this grievance on October 3, 1988. .The further essential facts for gurgoses of this aspect of tne .award are that at all relevant times the grievor was collecting Workers' Compensation benefits and had been deemed by the Workers' Compensation Boar.d to be "temporarily totally disabled". He was receiving all the benefits available Iunder Article f4.4 of the collective agreement which provides: Where an employee receives an award under The Workers' Compensation Act, and the Award applies for longer than the period set out in section 54.2 (i.e. three (31 months), and the employee has exhausted all attendance credits, the Employer will continue subsidies for Basic Life, L.T.I.P., O.H.I.P., Supplementary Health and Hospital and Dental Plan for the period during which the employee is receiving the award. He also wants to benefit from the Employer making pension contributions under Article 42.3 which provides: The Employer will continue to make pension contributions and premium payments for O.!i.I.P;, the Dental Plan and for'Supplementary Health and Hospital on behalf of the employee, at no Cost to the employee while the employee receives or is qualified to receive L.T.I.P. benefits under the plan, unless the employee is supplementing a W.C.B. award. - 2 - The grievor never protection benefits (L.T. explained, there appeared applied"for long term income 1.P.) because, a5 Union counsel to be no financial reason for doing so. Under the Workers' Compensation scheme, the grievor was receiving 90% of his net salary. L.T.I.P..would have paid him only 66-2/3% of his gross salary. Further, Article 42.2.2 "sets off" L.T.I.P. from WCB.receipts, so even if he had been approved by the L.T.I.P. carrier, Confederation Life, he would.not have received any actual money from L.T.I.P. But the Employer has consistently taken the position .that the grievor should and, indeed, had to apply for L.T.I.P. in order to determine if he was eligible or qualified to receive L.T.I.P. benefits before the Employer would make any contributions under Article 54.4. In January 1985, the grievor was notified by the Ministry that the Ministry was applying for L.T.I.P. on his behalf and he was asked to complete the application forms and submit an ,, attending physician's statement to the insurer. When he failed Co do this, he was notified in June 1985 as follows: . . . It would be disadvantageous to yourself if you do not go on L.T.I.P. The reason being, that while on L.T.I.P., your benefits including pension contributions are maintained. L.T.I.P. has a three-part.application process, requiring submissions from the employee, the employer, and the attending physician. It also has a definition of totally disabled which reads .as follows: "Totally disabled" shall mean, for the first 30 months of total disability, an employee is wholly and continuously disabled by illness or accidental bodily injury which prevents him from performing any and every duty of his normal occupation. However, during the Qualifying Period, the employee shall be deemed not to be totally disabled and -3- total disability shall be deemed not to exist if the employee is engaged in any employment for wage or profits. After the first 30 months of total disability, "totally disabled" shall mean he is unable to perform any and every duty of any occupation for which he is reasonably fitted by education, training or experience. This definition differs somewhat from the definition under the collective agreement which provides that: 42.2.4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured.employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training or experience. The L.T.I.P. Plan is written by Confederation Life. It also contains several provisions thrdughout the Plan that set forth the insurer's power to monitor the claimant's condition and determine contractual eligibility. For example, one provision reads: Confederation Life shall have the right (at its own expense) to require a claimant to undergo a physical examination or a mental examina.tion when and so often as may be reasonable. The result of the monitoring by Confederation Life has been that there have been cases on record where L.T. I.P. has rejected claims by employees who had been considered as "temporarily totally disabled" by Workers' Compensation but not considered totally disable3 by the insurer. Also, employees have been considered qualified for C.P.P., but have Seen rejected by L.T.I.P. - 4 - For purposes of these proceedings, the parties agreed to defer the medical question of whether the grievor was “temporarily totally disabled” pending the advice given by this Board as to the Employer’s obligation under the relevant articles. The Board agreed to ass.ist the parties to understand their obligations under Article 42.3 and we agreed to remain seized on the question of the grievor’s medical condition should the need arise in the future. The Argument Counsel for the Union began his argument by explaining the scheme of benefits available to employees who are off work on Workers’ Compensa,tion claims. He explained that claimants who are considered totally disabled receive the additional benefit under Article 42.3 of having their pension contributions payable. We were told to look at Article 42.2.3 to determine if an employee is qualified to ” receive L.T.I.P. and then to look to Article 42.2.4 to achieve the definition of disability.. We are told that if the grievor fits the definition of total disability under the collective agreement, he should be considered to be entitled to L.T.I.P. benefits and to therefore qualify for the pension contributions, It was said that the Employer is financially responsible for the payment, therefore the Employer ought to accept the obligation to decide who oug,ht to be eligible for the payment. It was argued that since the language of Article 42.3 speaks of “qualiEied”, it does not demand that an employee obtain approval or be ‘considered eligible by the carrier of the L.T.I.P. scheme. It was also said that this Board has jurisdiction to.determine whether the Employer has properly denied the benefit under Article 42.3 and to order that the Employer pay such a benefit. It was conceded that the Employer must determine whether the employee is qualified under the L.T. I. P. plan and to do so would look to the - 5 - definition in the collective agreement as well as the Plan itself. But the factual question of whether the employee is qualified should be something that the Employer determines and which can be made reviewable.by this Board. It was said that this is no different than the way the Employer operates under the short term disability protection scheme under the collective agreement. The Employer argued that it would be improper to draw an analogy between the Employer's obligations under the short term sickenss plan and the long term sickness plan. Under the short term sickness provisions in the collective agreement, Articles 52.9 and 52.10 specifically give the Employer authorization to seek further medical information from the employee in order to monitor the Employer's obligation to pay such benefits. There are no similar provisions under the long term protection provisions and it was’argued that their absenc'e implies that the Employer does not carry the same obligations that it does under the short term sickness plan. It was said that Article 42.3. creates the obligation on L.T.I.P. to determine who is qualified for the plan and that the Employer is not in a position to determine such qualifications. It was said that the people in the Ministry ace not medical experts and should not be obligated to determine a'question of medical disability. It was also said that if the Union's argument were to prevail, the grievor would be treated differently and disadvantageously because he would lose the ability under the collective agreement to appeal a denial of deemed qualification for L.T.I.P. to the Joint Insurance Benefits Review Committee under Appendix 5 of the collective agreement. Counsel for the Employer also referred us to the Public Service Superannuation Act, RSO 1980 c. 419, ---. section 21.2 which provides: Where a contributor has qualifed for a benefit under an approved long term income protection plan in respect of a disability incurred on or after the 1st day of July, 1974, a contribution shall be made to the Fund on behalf of the contributor..: It was argued that we ought to read the collective agreement as consistent with the Act and that the Employer would not have the power to agree to a payment unless the employee "has qualified" for the benefit. In reply, the Union argued that the Employer's reference to the Joint Insurance Benefits Review Committee was not relevant or appropriate because the benefit being claimed here was not an insurance benefit which would be subject to review by that Committee. Instead, it was an Employer's obligation to pay under the collective agreement and not an insurer's iiabili.ty. The Decision The key to this case is the meaning of the phrase "qualified to receive L.T.I.P. benefits under the plan" in Article 42.3. It is clear that an employee who actually receives L.T.I.P. is entitled to have the Employer make his pension plan contributions under Article 42.3. But the collective agreement also obligates the Employer to make the payments for an employee who is "qualified to receive" the benefits under the Plan. The Employer would have us conclude that only the L.T.I.P. carrier can determine the qualification, whereas the Union says that the obligation rests on the Employer even when an employee makes no application for L.T.I.'P. Every reference available to us leads us to the conclusion that the language of the collective agreement does ,i - 7 - . . not require that the L.T.I.P. carrier is the exclusive judge of who should receive benefits under Article 42.3. The collective agreement speaks of a situation where an employee “receives” or “is qualified to receive L.T. I.P.” In contrast, the L.T.I.P. Plan itself uses the language of “eligibility” rather than qualification. Throughout the Plan, it speaks of when an employee becomes’eligible~ for insurance and of “eligible” employees. While the terms “qualifications” and “eligibility” can be considered synonymous in many situat’ions, the use of different terms throughout cannot be ignored. If the collective agreement was intended -to require that the insurance carrier determine the question of total disability for employees who either receive L.T. I.P. or who would Se considered acceptable to that insurer, then one would expe~ct the collective agreeement to mirror the language of the Plan by reading “an employee who receives or who is eligible to receive L.T. I.P. benefits under the plan.” ,However, - no such language exists here. :’ Similarly, significant reference can be made to the Public Service Superannuation Act. The Act deals with long - term income protection for non-unionized public servants. Section 21.2 of that Act gives us the phrase, “where a contributor has qualified for a benefit [emphasis added]. The’ words “has qualified” denote a pr.ocess of having made application and gained acceptance under a relevant plan. This is easily contrasted with the phrase “is qualifed”. The present tense does not necessarily denote that acceptance has been formalized. Instead, it denotes the potential of acceptance. Again, had the collective agreement simply read, “While an employee receives or haszlifed to receive -- L.T.I.P. benefits under the Plan,” it would be easy to conclude that no obligation would arise until formal approval or deemed qualification was obta.ined. Given the legislative context pointed out to us, the absence of the phrase “has - qualified” as compared to the phrase “& qualified” cannot he ignored. I - 8 - All Article 42.3 seems,to require is that the employee be qualified to receive L.T.I.P. benefits. It does not specify that he must apply and, be approved by the carrier. It does not speciEy that the application even be acceptable to the carrier. The employee need only be in actual receipt of L.T.I.P. or be "qualifed" to receive the benefits under the Plan. Who then is to determine whether an employee is qualified to receive the benefits under the Plan if no application is made? The insurer has no obligation to make the payments under Article 42.3 , -therefore has no interest in monitoring the eligibility. The obligation to make -the payments is solely upon the Employer. Thus, since the collective agreement does no-t 'specify otherwise/the Employer has the right to determine if the employee is "qualified to" receive L.T.I.P. benefits under the Plan. Clearly, in determining that question of qualification, the Employer will have reference to Article 42.2.4 and to the definition of total disability under Confederation Life's L.T.I.P. scheme. Indeed, the Union acknowledged.that the Employer could have reference to the restricted definition of total disability under the Plan. Further, this right to determine qualification also carries with it the right to monitor the question of continued qualification for benefits. The Employer's role in this'rsgard would be mirrored Sy the role the Employer plays in monitoring and'enfdrcing its rights and obligations under the short term sickness plan in Article 52. This :was acknowledged by the Union. In short, the Employer must make pension contributions for employees receiving L.T.I.P. If an i- - 9 - loyee chooses not to apply for L.T.I.P., but is otherwise qualified to receive the benefits available under the L.T.I.P. Plan because of total disability within the meaning of that Plan, the Employer must still make those contributions. Nothing requires the employee to apply for L.T.I.P. or to have been approved for coverage "in principle" by the insurer. Thus, the Employer has the right and the obligation to determine that qualification. When the Employer makes the enquiries to determine if an employee meets the requirement of the collective agreement and the . . Plan, then the Employer is obligated to pay the contributions wnen the qualifications are deemed to be met. We do not agree that this conclusion takes'away any rights of access to the Joint Insurance Benefits Review Committee as the Ministry suggests. The simple reason for this is that the benefit being claimed is not an insurance ' benefit that would be within the scope of the jurisdiction of that Committee in any event. Thus, we declare that the Employer breached the collective agreement when it required the employee to apply for L.T.I.P. before considering whether benefits were payable under Article 42.3. If the grievor's medical condition was such that he was qualified to receive L.T.I.P. benefits under the Collective Agreement and the Plan, the Employer should make contributions necessary to cover the periods for which the grievor would have been qualified. We trust that the parties will be able to satisfy each other as to the grievor's medical condition and his situation at all relevant 1 times. ' However , w6 retain jurisdiction to deal w matter further should our-assistance be required. i ith this DATED.at Toronto, Ontario this Z3rd day of June, 1989. - _--- - Vice-Chairperson I. Thomson - Member -y--H- D. Wallace - Member