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HomeMy WebLinkAbout2013-1965.GAM.15-03-12 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#2013-1965 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 (GAM) Association - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Bram Herlich Vice-Chair FOR THE UNION James McDonald Sack Goldblatt Mitchell LLP Counsel Kelly Doctor Sack Goldblatt Mitchell LLP Counsel FOR THE EMPLOYER Robert Fredericks Treasury Board Secretariat Legal Services Branch Counsel HEARING February 10, 13, 2015. - 2 - Decision [1] The complainant (whom the parties have asked me to refer to as “GAM”) in this matter asserts that she was improperly denied Long Term Income Protection (“LTIP”) benefits under the collective agreement. The process for the resolution of this claim was described in an earlier decision in this case. I will not review that here. Essentially, all efforts undertaken under the collective agreement to resolve this matter have been unsuccessful and the matter has been referred to me for a final determination. [2] There is no issue between the parties that the central question I am to decide is whether the complainant was, during the relevant period, “totally disabled” within the meaning of the LTIP plan. It provides (in paragraph 8 of the Definitions): “Totally Disabled” means, for the first 30 months of a Period of Disability, an employee is wholly and continuously disabled by illness or accidental bodily injury which prevents him from performing the essential duties of his normal occupation. However, during the Elimination Period, the employee shall be deemed not to be totally disabled and total disability shall be deemed not to exist… “Elimination Period” is defined as: ..an initial period of the longer of (a) 6 months, or (b) the period the employee elects to use accumulated sick leave credits to defer the commencement of benefit payments, during which the employee is Totally Disabled. [3] In other words, in the simplest of cases, and assuming continuing total disability, LTIP benefits will commence at the conclusion of the elimination period. No LTIP benefits are paid during the elimination period. That is because while the employee, to qualify for benefits, must be totally disabled during the Period of Disability (which includes the elimination period), s/he is also deemed not to be totally disabled during the elimination period. - 3 - [4] The association asserts that the complainant was totally disabled for a period that commenced on or about September 30, 2010 and continued until on or about January 18, 2012. The employer disputes that the complainant was ever totally disabled within the relevant time period. In the alternative, it acknowledges that the claim for total disability is stronger during certain portions of the period identified by the association than others. It asks me to make findings accordingly. [5] The documentary file in this matter was, to put it mildly, voluminous, and I am grateful to counsel for the work they have done in separating the wheat from the evidentiary chaff and in identifying the documents warranting review for the purposes of this decision. The number of documents was still impressive. Counsel led me through these documents, I have reviewed them but do not, except to the extent necessary, propose to set them out or subject them to intricate review here. [6] The issue in this case arises in a somewhat complicated context. The complainant, prior to the events that led to the need for this determination, required some physical accommodation in her workplace. This was a result of a motor vehicle accident some years ago. This need for accommodation does not figure directly in the instant case. However, it was in place in August 2010 when the narrative in this case, or at least its contextual background, can be seen to commence. The complainant returned to work after a weekend during which cleaning efforts had been undertaken at her workplace. Unfortunately, she appears to have suffered an extreme reaction to some of the cleaning materials that had been used. I say “appears” because some of the events related to this incident are the subject of a separate ongoing proceeding before me. The instant case involves a claim that the complainant was totally disabled from September 2010 to January 2012. The association asserts that, during that period, the complainant suffered from a mental disability, namely Major Depressive Episode and/or an Adjustment Disorder. The other proceeding before me relates to periods of time both prior and subsequent to the asserted period of total disability. The issues in that case relate to the complainant’s asserted right to accommodation during a period(s) of time when she asserts she was not totally disabled. It is important to identify these boundaries as the accommodation issues are the subject of a separate proceeding in which further evidence is to be heard before any determination is made. These boundaries, however, are not watertight, at least to this extent: some questions regarding - 4 - accommodation will be adverted to (but not decided) herein. This is necessary even at the very outset since the theory of the association’s case, in its briefest possible description, is that the difficulties the complainant encountered, in having her need for accommodation properly addressed, contributed to the deterioration of her mental health. Similarly, a feature of the employer’s case, a repeated theme of the insurance carrier in its various denials of the complainant’s application, lies in the assertion that the complainant’s absence from work was due to unresolved workplace complaints (clearly a reference to accommodation issues) rather than any mental disability. [7] The complainant’s status or entitlement(s) in the period from the date of the initial chemical exposure (August 16, 2010) until the asserted commencement of total disability (September 30, 2010) is not before me in the instant case. Suffice it to say that there were ongoing issues, efforts without any mutual resolve, aimed at securing the necessary accommodation that would permit the complainant to return to or remain at work. [8] During the period that is the subject of the instant proceedings, GAM was receiving treatment from a number of different medical and health practitioners. Dr. L. Di Quinzio is the medical practitioner who clearly has had the greatest amount of contact and continuity with GAM. Dr. Di Quinzio is the complainant’s primary care physician and was her attending physician for much of the period in question – at least up until July 2011 when she went on leave and was replaced by her locum, Dr. Far. GAM attended at Dr. Di Quinzio’s office some dozen times in the period from August 2010 until the latter’s leave at the end of June 2011. Many of these visits, particularly the later ones, were of significant duration. Dr. Di Quinzio’s notes record the observation of symptoms consistent with the diagnoses that were recorded and offered. On December 6, 2012, Dr. Di Quinzio authored a summary report which included the following: On November 3, 2010 I diagnosed [GAM] with Adjustment disorder with depressed mood. On November 30, 2010 I diagnosed [GAM] with Major Depressive Episode, mild in severity initially, but gradually worsening over time. This had evolved from the Adjustment disorder, in my opinion, and was a direct result of the pressure she had withstood regarding unresolved issues in the workplace as related to an August, 2010 incident. - 5 - The August, 2010 incident had resulted in her being unable to attend work for physical reasons and, although recommended, she was not accommodated at another worksite while the issues at her original place of work were resolved. From her descriptions to me surrounding this incident, it appeared there were interpersonal relationship strains in the work place because of the failure to accommodate and communicate. The stress of not being able to attend her work or have these issues resolved placed a great amount of strain on [GAM] emotionally and mentally. [GAM’s] mood suffered because of the stresses associated with her work and the August, 2010 incident. She developed worsening symptoms over time. These included mood lability, mood depression and irritability, poor sleep, poor appetite, low energy, easy fatigability, decreased motivation and interest in daily activities, increased personalization, and poor concentration. All of these symptoms prohibited her from working. Because her depression did not evolve or exist in isolation, but in the context of external stressors stemming from her work environment and unresolved issues arising from a workplace incident, it was not prudent that she return to this stressful environment while experiencing such symptoms. She would not have been able to function in her previous position and would not be able to meet any of her major responsibilities as listed in her position description supplied to me. [GAM] was no longer able to perform her regular duties as of November 30, 2010. [GAM] was not improving over time despite various modalities of treatment and I referred her to Dr. Burra, a local psychiatrist. I have forwarded your request for further information to him. Please note that there is, on average, a 6 month wait in Kingston for mental health professionals such as psychiatrist to see patients, especially if the patients are not suicidal or homicidal. In most cases it falls on family physicians to diagnose and treat patients many months prior to them being seen by any psychiatrist. Dr. Burra’s consultation was actually quite timely given this reality, and it is not the fault of [GAM]. I left on maternity leave in July, 2011. Subsequently, [GAM] saw Dr. S. Far, my locum, in my stead. During this time chart notes indicate the [GAM’s] symptoms were abating somewhat. Dr. Far wrote a return to work letter for [GAM] on January 18, 2012. [9] The treatment GAM received from Dr. Burra was not prolonged – she saw him three times in August and September 2011. Dr. Burra, on December 18, 2012, provided the following summary report: At the request of [GAM], who I saw in consultation on 3 August 2011 when her family physician, Dr. L. Di Quinzio referred her to me, I am writing to say that I am entirely in agreement with Dr. Di Quinzio in what she set out in her letter of 6 December 2012. This being, in effect that [GAM] was indeed unable to work - 6 - between December 2010 and January 2012. I say this on the basis of the history I gathered when I saw the patient on 3 August 2011– and having read Dr. Di Quinzio’s detailed notes on [GAM] which she provided me prior to my seeing the patient in consultation. I should also like to say that irrespective of whether a diagnosis of Adjustment Disorder or of Major Depressive Episode was made– there was no question about the patient’s degree of disability in her functioning would have made it impossible for her to work between December 2010 and January 2012. [10] To be clear, and having regard to other documentary information provided from Dr. Burra, the latter reference above to “whether a diagnosis of Adjustment Disorder or of Major Depressive Episode was made” is not to be read as affording the option that neither diagnosis was made, rather it is a reference to which of the two diagnoses was the more pertinent at given points in time. [11] While the above two physicians are clearly the most important ones for the purposes of the case at hand, they do not, by any means, represent the sum total of medical and allied health professionals treating GAM during the period in question. [12] As already noted, GAM was treated by Dr. Far, in Dr. Di Quinzio’s absence. She was also under the care of Dr. Tsai, a medical specialist in clinical immunology and allergy – Dr. Tsai’s focus was on the impact of the chemical exposure in August 2010 on GAM’s health – this is not an issue of central concern here. She also received physiotherapy during the period, although, again, this was in relation to physical symptoms that may have arisen as a result of lack of proper ergonomic support prior to the period in question here. And again, this is not the direct focus in the instant case. Finally, GAM also received ongoing treatment, described by Vince Martin, the social worker who administered it as “supportive therapy”. GAM attended on some 24 occasions in 2010-2012. He opined, in a written report, that GAM’s mental health symptoms were consistent the work-related stressors she reported. - 7 - [13] Before turning to the central issue: whether the evidence supports a finding of total disability and the reasons why the employer asserts I should avoid any such conclusion, I will consider some peripheral, though related issues. [14] The association asserts that for the period the complainant was in receipt of short term income protection benefits (“STIP”), i.e. from approximately October 7, 2010 to March 2, 2011, her status as totally disabled is incontrovertible. The employer’s payment of those benefits can only be premised on its acceptance of the complainant’s disability. The complainant’s status while in receipt of STIP is important because the period of disability under the LTIP policy includes, at the outset, a minimum 6 month “elimination period”. Under the wording of the policy, an applicant must be totally disabled during the elimination period but is then deemed (for the purposes of benefits) to not be totally disabled during that elimination period. [15] Under the collective agreement, entitlement to short term sick leave with pay requires that the employee be “unable to attend to his or her duties due to sickness or injury”. The association acknowledges that the operative definitions differ with respect to short and long term benefits (the latter, it will be recalled speaks of “an employee who is wholly and continuously disabled by illness or accidental bodily injury which prevents him from performing the essential duties of his normal occupation”). It asserts, however, that there is no substantive or meaningful difference in the definitions for the purposes of the instant case. [16] The employer asserts that the complainant must be put to the proof of her asserted total disability during both the elimination period and the balance of the continuous period in respect of which LTIP benefits are claimed. That requires some medical evidence, reliance on the fact that short term sick leave benefits were provided is not sufficient. [17] The position advanced by the association warrants consideration if, for no other reason than it would appear highly counterintuitive for an employer to accept an employee’s asserted disability for the purposes of short term sick leave and to then dispute its existence for the purposes of LTIP. Of course, this would hardly be the first time legal results might be described as counterintuitive. Employer counsel asserted, quite correctly, that there was no evidence before us as to why the employer granted short-term benefits in the instant case. That is - 8 - true, although one may query which of the parties would be best placed to tender such evidence. On the other hand, one may not wish to place an employer in the position, when faced with making determinations about short-term sick leave, of ultimately being required to learn that no good deed goes unpunished. [18] In any event, given the evidence that is before me, I do not have to resolve this particular legal conundrum. [19] As will become clear, the conflation, in the instant case, of absences due to issues related to physical accommodation with absences due to mental health issues is something that appears to have plagued all involved. As I have already noted, the concern in the instant case is with the latter not the former. [20] However, as a general proposition, to the extent the complainant’s absence from work is due to disputed accommodation claims, it cannot be said that she was totally disabled. Total disability – and this is the foundation of the association’s claim – is said to have resulted from a mental disability (even if the ongoing dispute about accommodation, as the complainant’s care providers attest, contributed to the stressors that created, aggravated and prolonged the mental disability). In the simplest of terms, the claim is that the dispute around proper accommodation resulted, at some point, in the complainant becoming totally disabled, plagued by the symptomology of Major Depressive Episode and/or Adjustment Disorder. It is that disability which forms the basis of the claim. It follows, therefore, that so long as the focus was on negotiating a return to work – whether that was in the form of workplace accommodation or working from home, the complainant cannot be said to have been totally disabled. As late as November 3, 2010, Dr. Di Quinzio was still advocating for the complainant to be permitted to work from home, an option the employer consistently resisted. And, further, in her summary report of December 6, 2012, Dr. Di Quinzio clearly identified November 30, 2010 as the date as of which the complainant was no longer able to perform her regular duties. [21] In these circumstances, I am satisfied that the commencement of the period of disability, including the elimination period, cannot have been earlier than November 30, 2010. - 9 - [22] I pause to consider the submission made by the employer regarding an aspect of the quality of the medical evidence supporting GAM’s claim. It was asserted that both Dr. Di Quinzio and Dr. Burra overstepped the bounds of proper professional comportment. It is said that their reports, particularly that of Dr. Burra (set out above), contained elements of advocacy that should cause me to regard them with a healthy degree of scepticism. [23] This is a difficult submission. It is true, for example, that Dr. Burra’s report purports to comment on an asserted period of disability in excess of a year despite the fact that he only saw GAM on three occasions (in August and September 2011) during that period. It is important, however, to distinguish, among all of the plentiful documents that form part of the record, between those that can be legitimately described as first-hand reports (i.e. those of GAM’s caregivers) and what might be described as “meta-reports” (i.e. those prepared by the professionals engaged by the insurer to assess the claim). Thus, while Dr. Burra’s contact with GAM may well have been limited, it remains three more direct and substantive interactions than those of anyone from the insurer’s team. And while it may be true that various reports of Dr. Di Quinzio, Dr. Burra and the treating social worker might be described as containing elements of advocacy, I am loathe to attribute any resulting impropriety. Indeed, if one were to search for “elements of advocacy” in various reports, one can find equally plentiful instances in the documentation authored by the insurer’s professionals. For example, a report dated April 26, 2011, one of the insurer’s consulting physicians (who had no direct contact with GAM) offered the following: The claimant has been off work since October 2010 with somatic symptoms developing in the context of the diagnosis of “chemical irritation reaction”, as noted by her family physician. There were subsequently significant occupational issues with her feeling that she was not being appropriately accommodated. In reaction to these issues she has developed anxiety and depressive symptoms. Her family physician diagnosed an adjustment disorder, then a mild depression and more recently a more moderately severe depressive episode. It was not clear, however, that it is depressive symptomatology that is limiting her from returning to work. There appear to occupational be [sic] a number of unresolved issues and possibly associated grievances. One suspects that it is these issues more than depressive symptomatology, that has presented a barrier to returning to work. This is not to say that she has not experienced some reactive anxiety and dysphoria in this context, but rather to indicate that it appears to be the unresolved occupational issues rather than severe major depression that is limiting her from returning to work. - 10 - [24] It is less than clear to me what forms the basis for the conclusion that GAM’s absence was more attributable to “unresolved occupational issues”, apart from the author’s “suspicion”. [25] Further, it appears that in preparing this document, the author was not (yet) in possession of any material from Dr. Burra. In a later report, dated October 4, 2011, the author recorded the following (the first paragraph is reproduced as it appears in the document): Dr. Burra, August 26, 2011 notes that her difficulties were clearly triggered by what she perceived, “apparently with good reason” has had an helpful and on accommodating stance on the part of her employer. The initial reason she stopped work was due to toxic chemical exposure in the workplace. There is no past psychiatric history. She scored 53/90 on a depression questionnaire. While she meets criteria for major depressive episode he considers a diagnosis to that of an adjustment disorder because stressors are still active antidepressant. He indicates there is nothing a history to point to this being part of another psychiatric disorder such as mood disorder proper. General Impression: In reviewing the prior file documentation and the reports noted above from Dr. Burra, I note that his reports confirms the adjustment disorder diagnosis. These additional reports do not provide additional information with respect to functional limitations. These reports do not alter my prior opinion. [26] Without entering into the question in any further detail, it is sufficient to note that there may, without impugning the conduct of any of the authors, be legitimate reasons to assess the materials with some degree of caution. An adjudicator’s need to sort through levels of advocacy is not an unknown requirement in an adversarial context. [27] I turn now to the central question: was GAM wholly and continuously disabled by illness which prevented her from performing the essential duties of her normal occupation for the period commencing November 30, 2010 to January 18, 2012. [28] The employer advances a number of reasons why, in its view, the evidence submitted fails to establish any such disability. Perhaps chief among these is the asserted failure - 11 - of the documentation to clearly and specifically outline the nature of GAM’s functional limitations. [29] I find the association’s submissions on this point to be persuasive. GAM’s position of Senior Program Consultant, Salaried Models and Programs in the Primary Care Branch of the Ministry is one that comes with considerable responsibilities. A summary recitation of the responsibilities outlined in her Position Description discloses these: • Leading the development of accountability agreements with service providers • Providing leadership and expertise on the resolution of complex and contentious issues • Providing expert advice to senior management and other Ministry programs • Developing or contributing to the development of operational policies by analyzing and researching complex operational issues • Providing expertise or direction to staff on complex organizational issues • Developing proposals for funding allocations • Leading special projects and initiatives [30] This is a position that requires a wealth of expert knowledge and the exercise of considerable judgement, discretion and initiative. [31] This is not a case where (unlike, for example, any ongoing need GAM may have for a suitable ergonomic workstation) functional limitations may lend themselves to ready measure (such as, for example, a physical limitation on the amount of weight an individual is capable of lifting). It is true that neither Dr. Di Quinzio nor Dr. Burra provided forms with elaborate or exhaustive taxonomies of relevant functional limitations. However, both clearly expressed the view that, during the relevant period, GAM was incapable of performing the regular duties of her position. Dr. Di Quinzio, in coming to that conclusion, made specific reference to GAM’s position description. I have little difficulty in contemplating that a person burdened with pathological conditions such as Major Depressive Episode or Adjustment Disorder may be unable to perform the essential duties of a difficult and complex job such as the - 12 - complainant’s. GAM’s clinical record is replete, during the period, with references to experienced symptomology associated with these conditions, such as poor sleep, loss of appetite, fatigue and low energy, inability to concentrate, lack of motivation, feeling overwhelmed, emotional lability, feelings of helplessness and hopelessness, anxiety and depression. While one may understand the insurer’s desire for more standardized (I use this word somewhat guardedly as it was not suggested to me that any standardized forms appropriate to the circumstances exist or were provided), I am satisfied that, during the period in question, GAM was unable, by reason of her illness (diagnosed as Adjustment Disorder and/or Major Depressive Episode) to perform the essential duties of her position. [32] In coming to that conclusion, neither have I ignored the employer’s submissions and some of the concerns raised by the insurer regarding the severity of the condition and its continuous nature. In my view, these two issues are related. [33] While the definition of total disability under the LTIP policy clearly contemplates a continuous period of disability, it would be unreasonable (and no one advocated any such position) to require daily reports attesting to the ongoing existence of disability and, in this case, attesting to ongoing symptoms severe enough to preclude performance of one’s duties. [34] I am satisfied that the documentary evidence, considered as a whole paints, in brief, the following picture. There was an unfortunate incident involving chemical exposure at work in August 2010. The parties have and continue to do battle on the accommodation issues arising from that event. However, as of November 30, 2010, the complainant, as a result of symptoms associated with her diagnosed condition(s) of Adjustment Disorder and/or Major Depressive Episode, was rendered incapable of performing the essential duties of her position. [35] I am also satisfied that state of affairs continued until January 18, 2012, when Dr. Far certified that GAM was capable of a return to work on a graduated basis. Again, it would not be reasonable to require the complainant to provide daily medical reports to substantiate the ongoing nature of her disability. By and large the early medical notes (i.e. those prior to the commencement of the period of total disability) focussed on the type of accommodation the complainant required as a result of both her pre-existing disability and the consequences of the - 13 - chemical exposure. Once the period of total disability commenced, those notes no longer speak of any accommodation issues and focus instead on medical leaves for initially specific and ultimately (on April 14, 2011) indeterminate periods of time. That period culminated in Dr. Far’s note in January 2012. [36] The complainant made numerous efforts to appeal the decision in this case directly to the insurer. Each effort was rebuffed. Each time the insurer suggested further documentation be provided, the complainant appears to have complied. If there were specific concerns the insurer had about either the quality or the completeness of the information it received, it might have made specific inquiries or otherwise sought to secure that information. While I agree with employer counsel that the onus in this case falls to the complainant, I am satisfied that onus has been met on the basis of the documentation provided. [37] Having regard to the foregoing, I hereby find that the complainant was totally disabled within the meaning of the LTIP policy for a period commencing November 30, 2010 and ending on January 18, 2012. [38] I hereby remit the matter to the parties to resolve in view of my finding. I remain seized to deal with any resulting difficulties they may encounter in that regard, including, but not necessarily limited to, dealing with the fact that Dr. Far recommended a graduated return to work in her letter of January 18, 2012. Dated at Toronto, Ontario this 12th day of March 2015. Bram Herlich, Vice-Chair