Loading...
HomeMy WebLinkAbout2013-1415.Grievor.14-07-23 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-1415 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Grievor) Association - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Mark Wright Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Jonathan Rabinovitch Ministry of Government Services Legal Services Branch Counsel HEARING October 24, 2013 - 2 - Decision [1] When a dispute arose concerning the payment of long term disability benefits for an employee of the Ministry of Education, the parties asked me to determine the matter. It was agreed between them that the hearing would proceed only by way of all the medical and related documentation that was before Great West Life (GWL), the insurer’s carrier. [2] The grievor began employment with the Government in 2005 and, in 2008, transferred to the Ministry of Education as a communication training analyst. In 2009 she went off work due to anxiety and depression. Her family physician Dr. W., prescribed antidepressant medication and referred her to a psychiatrist, Dr. M. at Toronto Western Hospital. She began counselling sessions with Dr. M. and Ms. B.L. through the Employee Assistance Program (EAP) and was working towards a return to work when she was raped by an acquaintance. Her anxiety and depression escalated following that traumatic event. She stopped her treatment for a period but began again in June 2009. She was placed on numerous waiting lists for trauma counselling and began weekly counselling with a Social Worker Ms. R.J. with the Sexual Assault and Domestic Violence Care Centre at Women’s College Hospital. She attended 36 counselling sessions between August 2009 and November 2010 as well as 6 group counselling sessions for survivors of sexual assault offered by that same service from September 22 to November 17, 2009. [3] The next few months were difficult. She was lethargic, tired, experiencing flashbacks, nightmares and distrust of others. During that time she moved in with a man she had been in a relationship with for some time and became pregnant. Because of medical complications she decided to have an abortion, another traumatic event that was followed by the serious illness of her mother and the death of a friend in a plane accident. In the fall of 2009, her relationship ended and she moved back to her parent’s home in Newmarket. She continued with her therapies but transferred her care to a family physician closer to home, Dr. D. Even though her symptoms had not improved, she and Dr. D. decided she was ready to return to work. [4] She worked from January to August of 2010, but she characterized her effort as a failure. Her symptoms increased and she had trouble completing tasks and meeting deadlines. The preliminary hearing over the criminal charges was on her mind and she suffered panic attacks and cried often. In April she encountered her attacker, which resulted in a panic attack that kept her off work for some time. In fact, she missed work often and in August decided she could not perform her duties because of her illness and ongoing symptoms and went off work completely. [5] Throughout this time she had been on a combination of discretionary unpaid leave, unpaid sick leave and unpaid personal leave. She received short term sick leave pay from May 29th to the end of December 2009. She applied for long term disability (LTIP) benefits. On an Employee’s Statement Claim for benefits dated December 7, 2009, the Complaint set out in detail the course of her illness, her treatments and her attempts to return to work. At the time she described her health issues as follows: Post Traumatic Stress Disorder (PTSD) from physical and psychological problems; severe anxiety in - 3 - social situations and when alone; flashbacks, and fear for her life. She also stated she suffered from depression leaving her in a constant state of sadness and loss. She was very emotional and was immobilized from performing her work duties or her activities of daily living. Many of these symptoms existed before the rape but were exacerbated after it occurred in April of 2009. Her application also contained a list of the various appointments she had attended for treatment: Dr. W. – 17 visits from January, 2009 to November 2009; Dr. D. – 17 visits between March 2010 and July 2011 and, in excess of 50 counselling sessions at various clinics and hospitals. [6] The first medical report on file was dated March 26, 2009, a month before the assault. Dr. M., the staff psychiatrist in the Community Mental Health Program at Toronto Western Hospital, noted the grievor’s reported symptoms as; low mood, decreased motivation, indecisive and uncaring about her personal hygiene and attendance at work; interrupted and insufficient sleep; lack of appetite; compromised concentration and suicidal ideation. Dr. M.’s DSM IV Diagnostic impression was Major Depressive Disorder, psychosocial/environmental issues – relational strain with biological family, social withdrawal, adjustment to pending move and living situation. He gave her a GAF score of 51 but noted the highest it had been in the past year was 71. He recommended antidepressant drugs and a continuation of her therapy sessions. [7] The Global Assessment of Functioning (GAF) is a numerical scale from 1 to 100 used by health care providers to rate the social, psychological and occupational functioning of individuals. A GAF score of 61-70 represents “some mild symptoms of some difficulty but generally functioning pretty well, has some meaningful interpersonal relationships.” A GAF score of 51-60 is said to indicate moderate symptoms or moderate difficulty in social, occupational or school functioning. [8] Dr. W., her family physician, identified similar symptoms from January 2009 to August of 2009, months after the assault and diagnosed her as suffering from Post-Traumatic Stress Disorder (PTSD). It was Dr. W. who referred the grievor to a psychiatrist, Dr. M. at Toronto Western Hospital. During that time she was receiving treatment and counselling for her depression and hair loss at the Robert Shad Naturopathic Clinic. In August 2009, in response to the Employer’s questions the family physician Dr. W. stated that the grievor continued to suffer from a disability that kept her off work. Although it was classified as temporary, return to work was depended on the course of treatment. [9] She continued to see her family physician Dr. W. until 2010 when she moved to Newmarket and transferred to Dr. D. another family physician. His patient files indicate monthly meetings with an ebb and flow of the same symptoms. On August 17th, 2010, he reported she was feeling better but by August 25th she was back in his office complaining of anxiety, “constant butterflies in her stomach”, and difficulty sleeping. These exacerbated symptoms were described as being caused by the conduct of the assailant’s solicitor. On September 8th, she was back in his office at which time Dr. D.’s notes say she was totally disabled with an indefinite return to work date. The claimant told him she did not want to return to work and he explained to her that he could not justify her absence from work indefinitely and that he needed to talk to her therapists to ascertain her status. When Social Worker Ms. R.J. returned Dr. D.’s call, he noted her comments as follows: - 4 - In a nutshell, she explained that because the adjustment to the rape is going to be delayed by resolution of the court case (which might not take place until May of the next year; it’s her advice that the client should not be working until that time. I explained to her that this is not an actual illness in the sense that it requires a certain treatment in order to get better but rather the inability to cope with one’s life circumstances that are generated completely out of control. [10] Ms. R.J. told Dr. D. about some of the claimant’s reported symptoms, including intrusive flashbacks, disturbing dreams, reliving the traumatic event and others, which prompted Dr. D. to test her for PTSD. In October, 2010, Dr. D. noted she was better but still experiencing a lot of PTSD symptoms and still tended to fall apart when her boundaries were challenged. On November 8th, 2010 he noted that she was about the same as she had been. Dr. D. completed an Attending Physician’s Initial Long Term Disability Statement in November of 2010. In it he noted that her symptoms began in March of 2009 and her diagnoses were PTSD and depression. Her subjective symptoms included stress, lack of focus and a lack of concentration. She had been seeing him weekly at first and then monthly. He opined that she might return to work by June 2010 but cautioned that that was highly uncertain and depended on the course of treatment. Under the additional comments requested, he stated: My client is slowly working through the many issues that were created by her being sexually assaulted. She fulfills the diagnostic criteria for PTSD and depression. It is highly unlikely that she will be able to return to work for several months, particularly as the court process related to her sexual assault is ongoing and will not be completed until at least June 2011. I will continue to monitor her course through next several months. [11] In December 2010 he noted that she was doing quite well but still felt she could not go back to work while the court date was “hanging over her head”. In January of 2011 she was found to be euthymic and he continued with her treatment plan. For the next two visits her condition was unchanged but, in Dr. D.’s opinion, it was reasonable for her to stay off work until the trial. [12] In response to the Employer’s request in August for additional and/or more recent information, Dr. D. confirmed their mutual understanding that the Claimant would not be returning to work until September or October and requested more information about the actual work situation she would be returning to then. In October 2011, his notes stated she was very well, almost back to normal. She was to return to work on October 17th, 2010. His assessment changed from PTSD to Adjustment disorder (resolved). [13] The grievor attended 36 counselling sessions between August 2009 and November 2010 as well as six group sessions with the Social Worker Ms. R.J, with the Sexual Assault and Domestic Violence Centre [previously identified]. In her Therapy Report of November, 2010 to the Criminal Injuries Compensation Board, she stated as follows: - 5 - d] How has the patient’s/client’s life, on a daily basis, been affected by the [incident[s] [crimes of violence] and ensuing symptoms? [Please address each issue as educations, work, relationships, friends etc.] Life, on a day to day basis has been profoundly affected by the assault; the legal process related to the assault, and the ensuing symptoms, the primary area that has been affected is her work. She was on a leave-of –absence after the sexual assault, and had completed the paperwork and process to return to work after the preliminary hearing in January 2010. As overseen by her family physician, her-return-to work plan recommended that she started at a reduced schedule and build back slowly to a full –time schedule. She was committed and motivated to follow her return-to-work plan. However, she experienced lingering difficultly re-integrating into her work environment. She experienced intense anxiety and stress, particularly leading up to and following the date of the preliminary hearing, and even more so when the hearing was extended to a second day, over a month later. In turn, she had difficulty focusing at work and completing the functions of her role. She experienced changes in her appetite and lost approximately 10lbs. She also felt much guilt and shame for experiencing these difficulties and symptoms. We have spent a great deal of time in therapy, exploring and normalizing these post-traumatic stress symptoms and speaking about the non-linear and individual nature of healing. In addition, the post-traumatic stress symptoms that she has been struggling with have created barriers for her in reaching out to existing friends and forging new relationships. She feels distanced from close friendships as she does not feel like she is as positive or fun as she once was in relationships as she continues to struggle with the impacts of the violence and legal process. [14] It was Ms. R.J.’s opinion that the claimant might continue in the process of coping with these impacts for a long time. [15] In November 2011, Ms. F. K., a counsellor with the Barbra Schlifer Commemorative Clinic wrote the insurer in support of the claimant’s LTD benefits. She reviewed the clients’ files and, with respect to the future, said the following: The Client is committed to healing. She has worked hard in our time together to bring her life back together after terrible trauma seen through her dedication in attending individual counselling at the Barbra Schlifer Clinic the client needed the time she took for extended disability leave to begin to heal from the assault. She made drastic changes in her life while she was on leave. She was able to speak out against her assailant at the trial this fall with determination, strength and confidence. I was able to bear witness to her capacity to trust herself and be surrounded by friends that she trusts. The client is building a life free from violence. She was determined to return to work after the trial when she reflects on her job that she states that she feels good in her role. It is my professional opinion - 6 - that she should be granted short term disability leave since it was extremely imperative to heal from violence. [16] The claimant received a letter from GWL dated March 28, 2011 advising her that her application for benefits had been denied. She was told that the reason for the denial was that her level of impairment was not in keeping with her inability to work. It was said “it appears that you are able to perform all the activities of daily living and your continued absence from work appears to be preventative at this time. Therefore benefits have been declined as the definition of disability has not been satisfied. [17] This decision was based on a review of the documentation but was influenced to a great extent by the Independent Medical Evaluation performed by Dr. R. in February of 2011. He is the Medical Director of the Psychiatric Rehabilitation Day Treatment Program at Toronto East General Hospital. His report was dated March 5th, 2011 and was very comprehensive and was based on a review of her medical history from 2009 to 2011. He noted that when she went off work in January 2009, the major stressors were workplace related and emotional such as abandonment issues and the disapproval and disappointment of her family. Her treatment involved medication and counselling but these sessions shook her up for days and made her very upset. [18] After the assault, she was at her lowest: her symptoms were exacerbated and, in some cases, new issues caused more symptoms to arise. She went back to work in January of 2010, a week after the preliminary trial and was very shaky. She was not meeting expectations and could not concentrate or focus. She was fearful that her assailant would harm her and had panic attacks, nightmares and could not sleep. The workplace was different and her job duties had changed, causing more stress. She took time off work for varied reasons but ultimately she went off work in August 2009. He stated in the last two months before August she had been able to focus on herself and therapy. When she was working she had a difficult time because her therapy would cause her distress and it would take several days before she was able to focus on her tasks. When she was off work she had the time to recover from the stress. At the time of his examination, the grievor said she felt more grounded but needed to find better ways of coping since the trial was scheduled for September 2010. At that time she was more grounded than she had been but attributed to the fact that she did not have to explain her actions or absences, which she found difficult. She still had panic attacks and flashbacks and her sleep was interrupted. She expressed fear that if she returned to work while the stress of the pending trial was still an issue, she would fail again and her job might be threatened. She had tried to return to work in January 2010 but failed. [19] In assessing her psychiatric impairment, Dr. M. noted that the claimant had said she had a mild degree of impairment in her non-work life. He described her daily routine, which appeared to be full of activity from cooking to exercising and socializing. His psychiatric opinion of her was Post Traumatic Stress Disorder, major depressive Disorder in partial remission and a current GAF of 56 to 70. He was asked to assess the treatment she had received and recommend any changes. In considering the future treatment plans, he was very thoughtful. He stated as follows: - 7 - In terms of treatment recommendations, this depends on the goals. Currently, her goal is to continue in therapy and return to work after the trial in the fall of 2011. If this remains the goal, then the only recommendation I would suggest is that therapy continue to focus on managing trauma symptoms and optimizing coping strategies ideally using cognitive strategies. For the sake of thoroughness, I would suggest she consider using the free self-cognitive website. This is not instead of the counselling, which is highly valued but in addition to it. This website helps individuals learn coping strategies particular to affective labiality and distress. If the plan remains to return to work in the fall of 2011 after the trial, then the main recommendation would be to focus on preparing her for the trial and managing the triggers appropriately. If she were my patient, I might be cautious in exploring earlier developmental issues as this may inadvertently promote regression, especially in a current emotionally vulnerable period. If her goal were to return to work before the trial, then the medication recommendations would remain the same as above but the therapy recommendations would focus more on the workplace clarifying with Human Resources mutual expectations, concerns, responsibilities and consequences. If she were my patient and she hoped to return to work before the trial, I would encourage her to develop a clear and fair return to work time-frame that is acceptable to her employer and to her. I would encourage her to clarify that there are no disciplinary actions outstanding and there appears to be some concern about what has transpired last year. If she planned to return to work in the next while and not wait until after the trial, then therapy should de-emphasize past developmental trauma and focus on cognitive strategies to help her cope better in the here and now and balance work and personal life responsibilities and stressors. For the sake of thoroughness, I note that she values the therapy that she has had with both her therapists, particularly her current therapist. However, she does readily describe and volunteer that after her sessions, there is a lot of stirring up of issues, which is unsettling for her. If she were planning to return to work in the next while rather than after the trail, a focus more on the here and now and less of a focus on post-trauma may be worth considering. [20] Dr. R. noted that there had been an improvement in her psychiatric symptoms. The main factors affecting the clinical course were the legal situation and the pending trial. In addition, he said “there are work issues impacting on her as she found work stressful, especially as she was going through therapy working through painful trauma. It was very clear that the grievor was motivated to return to work when the trial was over. Dr. R., in response to a question, found no reason to doubt her credibility or reliability. Her therapists and family physician supported her position and felt it was in her best interests to wait until after the trial. He was asked whether this was a clinical situation that would benefit from firm and fair limits within a reasonable time frame to motivate the claimant. He replied that this was not a situation that would respond to that treatment, that the main issue presently was the fact that she had attempted to return to work in 2010 and had not - 8 - been successful. She believed that work was stressful because of her mental state after the assault. She is concerned the same thing would happen and that her job might be in jeopardy. REASONS FOR DECISION [21] This is an appeal for long term disability benefits under the insurance policy with Great West Life between the parties. Eligibility for benefits dependent upon meeting the definition of disability which requires an applicant to be wholly and continuously disabled by illness or accidental bodily injury from performing the essential duties of the position for the first thirty months of disability. [22] There is no doubt that the claimant has suffered for some time from a disability. She was exhibiting symptoms of depression early in 2009 caused by personal and familial issues. Those issues were exacerbated by the assault she experienced in April of 2009. Those symptoms continued throughout her entire psychiatric history until her final return to work in October of 2011. Initially it was the PTSD symptoms that dominated. She was having panic attacks, nightmares, sleep insomnia, inability to focus or concentrate hypersensitivity and depression. She worked very hard to deal with these symptoms and attended numerous counselling sessions with different therapists and did learn coping mechanisms to manage her activities of daily life. [23] Two aspects of the future weighed heavily on her mind; the criminal trial and her return to work. The pending trial was a constant stressor. She was told it would be a ten day trial and she would be the main witness for the prosecution. The closer the trial, the greater the stress. [24] However, the major factor in the denial of benefits was the claimant’s concerns about returning to work before the trial. Those concerns arose from what she considered to be a failure to perform her duties when she returned in January 2010, after one year’s absence. For eight months, until August, she was absent numerous times, some for medical reasons. She was called in to a meeting about those absences that she characterized as disciplinary in nature. This experience generated a fear that if she tried again and failed, she would lose her job. This became another stressor that influenced her opinion that she should not go back to work until after the trial. [25] Throughout this period of time there has been no suggestion that she has not been honest or sincere about how she was feeling. Not only did her therapists and doctors accept and treat her symptoms as real, a consultation performed by an independent psychiatrist did not suggest any reason to doubt her credibility. Therefore the only question is whether she was unable to perform the essential duties of her job from December 2010 to October 2011. [26] The reason for the denial of benefits was the insurer’s belief that her level of impairment was not consistent with an inability to perform her duties and her absences from work appeared to be preventative at this time. - 9 - [27] There is always a preventative element to any medical treatment. The goal is to treat the patient’s illness or injury so that he/she can return to her/his former life. That involves ensuring that the patient is able to perform her/his duties without risk of a recurrence or relapse. In this case, the claimant’s medical team has been with her throughout her ordeal. They know her and her vulnerabilities. In considering whether she was ready to return to work they considered current symptoms and concluded that remaining off work was a reasonable treatment plan. The independent medical specialist was asked specifically whether the recommendations of the claimant’s medical team were justified and he did not say they were unreasonable. [28] The insurer has placed emphasis on the lack of the claimant’s motivation to return to work. Motivation can be defined as drive, enthusiasm and impetus and a lack of those feelings can be a symptom of depression. In 2009, before the assault, the claimant was experiencing a lack of interest in life, anxiety, sleeplessness and lethargy. She had days when she did not get out of bed all day. She had no motivation to do anything. She has, however, been described as motivated to return to work. There is no doubt that she has worked hard to get better. She has also been eager to return to work in the past and has been consistent in her plan to return as soon as the trial is over. If she is not motivated to return to work before then, does that mean she is ready but doesn’t want to work or that she cannot go back to work in her present state. [29] The insurer has interpreted Dr. R.’s comments about motivation to mean that if she were motivated she could go back to work in a matter of weeks. Even at that she would require several weeks of preparation. I do not read his report in the same way. He was asked whether she could go back to work if she was motivated to do so and he said she could but the fact is that he and Dr. D. agreed she was not motivated but also agreed that it was not unreasonable to follow a treatment plan that allowed for a prolonged state of time off work. Dr. R. dealt with two possible outcomes: if she was going back to work before the trial or going back to work after the trial. He did not offer any recommendation as to which would be the preferred treatment but only opined on the appropriate treatment for either scenario. [30] In my view, all of the medical specialists, including her family doctor, psychiatric consultant and therapists have confirmed her symptoms, confirmed her continuing quest for treatment and motivation to recover from her medical issues and return to work. The reasons for her reluctance to return to work before the trial are founded in her past experiences when she was unable to perform the duties of her position. The Grievor fears she will fail again are real and have become a stressor in addition to the trial. She is continuing to suffer from symptoms of depression and PTSD and her continued treatment is not merely preventative but responsive to her symptoms. - 10 - [31] For these reasons her appeal succeeds. The claimant was entitled to benefits from December of 2010 to October 2011. Dated at Toronto, Ontario this 23rd day of July 2014. Loretta Mikus, Vice-Chair