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HomeMy WebLinkAboutRynberk 93-12-30 . " ",' Concerning an arbitration Between: Oaklands Regional Centre and Ontario Public Service Employees Union Grievance of Pam Switzer (now Rynberk), sick plan Board of Arbitration J. W. Samuels, Chairman J. E. Roffey, Employer Nominee J. D. McManus, Union Nominee For the Parties Union M. Bevan, Grievance Officer S. Walker, Local President P. Honsberger, Local Vice-President C. Case, Unit Steward P. Rynberk, Grievor Employer G.1. Campbell, Representative J. F. Bedell Hearings in Burlington, December 2, 1992; April 7, November 29 and 30, 1993 ~. ,." ~;: ¡:g ~ 1 The grievor claims sick pay for a two-month period during which she was off work in the summer of 1991. Article 13 of the collective agreement provides for a sick leave plan and Article 13:02(a) says that "The Employer agrees to provide and the Union agrees to accept the Hospitals of Ontario Disability Income Plan and the benefits and regulations pertaining thereto". Thus, the parties have established HOODIP as tlieìr sick plan. Article 5.01 of HOODIP sets out the conditions of entitlement for the Sick Pay Benefit: Benefits shall be paid to a Member who satisfies the following conditions: a. he is Totally Disabled on the date his Waiting Period, if any, expires; b. he supplies proof of Total Disability satisfactory to the Participating Hospital when he has been absent for three(3) or more days. However, such proof may be required at any time in order for him to qualify for benefits. And the words "Totally Disabled" and "Total Disability" are defined in HOODIP in Article 1.19: "Total Disability" and "Totally Disabled" mean, with respect to an insured person for the first two years of absence, a state of incapacity as a result of bodily injury or disease which prevents the insured person from performing the regular duties of the occupation in which the insured person was engaged immediately prior to the commencement of disability..... So the issue for us is whether the grievor met the conditions for entitlement under HOODIP for the two months she was off work. ;t . \ 2 The grievor is a residential counselor in a home for the developmentally handicapped. On July 6, 1991, she was involved in an incident with a resident, during which she called on a fellow employee (we will call her "F") to assist her. F and the grievor did not get along. F did not come to the grievor's assistance. The grievor was upset by this. However, the resident was dealt with and the grievor suffered no injury. The grievor did not think that the incident with the resident, and F's failure to assist, were serious enough to file an Incident Report (which is necessary if an event could affect the health of a resident or an employee), but she did write out a formal complaint about F's failure to assist, and submitted the complaint to her Residential Manager, L. Locke. Ms. Locke investigated the complaint the next day, July 7, speaking to both the grievor and F, and to another employee who had been involved. Ms. Locke concluded that there was a personality conflict between the grievor and F, and she advised both to act professionally and not to let their differences get in the way of their relationships with residents and fellow staff. In her testimony before us, Ms. Locke also said that the resident's behaviour during the July 6 incident was not unusual at Oaklands. The residential counselors face this sort of thing regularly. The grievor continued to work normally for the following week. On July 11, at around 3 PM (shift change time), she went to the Residential Manager on duty, Mr. M. Geisterfer, and asked him to prepare an Employee Incident Report. She dictated the description of the problem to Geisterfer, and he wrote it down on the Report: The last three months have been particularly stressful for Pam and she has found it increasingly difficult to relax and maintain an emotional equilibrium. Her tolerance level has diminished considerably and this has affected her capacity to maintain personal and objective relationships with her colleagues and the residents. 3 After the words "Describe actions taken to prevent recurrence", Geisterfer wrote "Pam will be consulting her physician on a regular basis". Mr. Geisterfer told us in his testimony that he had no opinion on the contents of what he had been asked to write. He didn't know the grievor well. He had seen her before and she was behaving as usual, as far as he was concerned. The next day, July 12, thegrievor brought in a note from her personal physician, Dr. G. B. Lamb, which read: This is to certify that Pam is suffering from excess stress which I feel is work related. I recommend time off for an indeterminate period. And she was off for the next two months. She claimed Workers' Compensation for the period, but in November, the WCB wrote to say that her claim was denied-" the evidence does not indicate that you suffered a work related disablement". On September 9, before she had heard from the WCB, the grievor came to see the new Residential Manager, Ms. G. Fowler, in the house in which the grievor had been working before going off work. The grievor told Ms. Fowler that she hadn't yet received any money from the WCB and needed money, and that she was ready to return to work, and that she would like to change her claim with respect to the time off work into a claim for sick pay. Ms. Fowler suggested that she transfer to another house to get away from F, but the grievor said that she wasn't keen to do this, because she liked the residents in' her original house. On September 11, Ms. Fowler told the grievor she could return to work immediately. The grievor brought in a certificate from Dr. Lamb dated September 13- "Pam will return to work on a trial basis". And the grievor returned to work on September 14. , . c' e 4 What was the grievor's condition while she was off work? Dr. Lamb has been a general practitioner since 1989, so he had been at the job for about two years when the grievor came to him to consult about her "stress". She told him about the incident on July 6. She complained of decreased sleep and decreased appetite and decreased concentration. He told us that these are vegetative signs of stress. He prescribed a sleeping pill to 'help her sleep, and he thought that she should not return to work, because she wouldn't be capable of performing her normal duties, especially with the stress at work. A week later, he saw her and she complained of mood swings, from normal to depressed or elated. He said it was fine for her to go away on vacation for ten days. She mentioned that her father was a physician and that he had suggested she was under stress. Dr. Lamb asked her if she wanted to take an anti-depressant, but she refused (probably because of the side-effects associated with the drug). At the end of July, she visited Dr. Lamb again and they discussed her financial situation. Her concentration was fine, her mood was better and her appetite was better. The sleeping pill was helping her sleep. She had no suicidal or homicidal tendencies. Dr. Lamb didn't think she was fit to return to work. On the August 9 visit to Dr. Lamb, the grievor was complaining of frontal headaches daily, of two to three hours duration. She said they were related to thinking about work. Again, she refused an anti -depressant. On August 21, she complained to the doctor about her lack of money from the WCB. She told him she was having panic attacks when she drove near Oaklands-palpitations, sweaty, shaky, light-headed. She complained of decreased concentration, decreased appetite at times, mood swings, and crying. Dr. Lamb suggested she see a psychiatrist, Dr. S. Naidoo. Dr. Lamb thought the grievor was getting worse, she had some sort of r..,.,,:,.,.,." í' :;: "", . . 5 traumatic stress syndrome. He was able to make an appointment on an urgent ~asis with Dr. N aidoo for September 6. On August 29, the grievor discussed her money problems with Dr. Lamb. On September 6, the grievor saw Dr. Naidoo, who discussed the situation at length with the grievor, and who concluded (in her written report of September 12) that "It appears that the issues at present seem to be more of a political and administrative one than a diagnostic one". In short, there was nothing wrong with the grievor. On September 7, the grievor visited Dr. Lamb again. She told him that Dr. Naidoo thought it was a traumatic syndrome, but not post- traumatic stress syndrome. But money and the law seems to have been the main topic of discussion. The doctor suggested she get a lawyer or talk with management about her deteriorating financial situation. He diagnosed a depressed mood, and stress related to a traumatic event (this was the day after Dr. Naidoo, a specialist, saw the grievor and concluded that there was nothing wrong with the grievor! Of course, to be fair to Dr. Lamb, he hadn't yet seen Dr. Naidoo's conclusion. All he knew was what the grievor told him-that Dr. Naidoo though it was a traumatic syndrome.) On September 13, Dr. Lamb agreed to let her try to return to work. He scaled down his diagnosis to a "situational crisis". It is interesting that he came to this conclusion the day after Dr. Naidoo wrote in her report "It appears that the issues at present seem to be more of a political and administrative one than a diagnostic one". Throughout the entire period, Dr. Lamb did nothing but listen to what the grievor told him and his entire assessment was predicated on the truth of what she told him. He did no objective physical or other tests whatsoever. é' " "' ? ~, 6 In our view, with the greatest respect to Dr, Lamb, he was wrong in his ass~ssment, and what happened in early September is critical to our VIew. On September 6, the grievor saw Dr. Naidoo, a psychiatric specialist, who concluded that there was nothing diagnostically wrong with the grievor, The grievor had gone to Dr. Naidoo on an "urgent" basis, because, in late' August, Dr. Lamb thought the grievor was getting worse and was suffering from some sort of traumatic stress syndrome. The day after the grievor saw Dr. Naidoo, Dr. Lamb concluded that she was suffering from a depressed mood, and stress related to a traumatic event. The assessments by the two doctors are entirely incompatible. We think Dr. Naidoo was correct at that time, and therefore Dr. Lamb has to be wrong. And we think that Dr. Naidoo's assessment at that time would have been the same, at whatever point in the piece Dr. Naidoo had seen the grievor. From all of the evidence we heard, there was ever only one problem which affected the grievor, having to work with F. For a week after the July 6 incident, the grievor had no trouble working even with F. At any time, if she really couldn't work with F, the Employer could have reassigned her to another house, away from F, and we have no hesitation in concluding that the grievor could have worked. When the grievor finally decided to return to work in mid- September, not because anything had changed in her medical condition, but because she was now having severe financial problems, Dr. Lamb was hesitant. He would let her try to return to work. And when she returned, she had no problems. What is even more significant, the Employer suggested she work in a house away from F, but the grievor insisted that she liked the residents in her original house and wanted to stay there, working with F. This did work out for awhile, then the two were separated; the grievor was transferred to another house. . ' 7 In sum, we conclude that the grievor was never "totally disabled", as this tef!11 is defined in HOODIP, and therefore is not entitled. to benefits under the plan. For these reasons, the grievance is dismissed Done at London, Ontario, this 5Vll. day of /1..C-t-- t-. ,1993. /' ~~s J. E. Roffey, Employer Nominee ~ ~. ~ J é ~dLL..- J. D. McManJs, Om on ominee (WL c. ~ ) if}~ '. , [ ~.., ~' ~~, ',; Oaklands Regional Centre and Ontario Public Service Employees Union Grievance of Switzer (now Rynberk) 0., ,'~ n D 8nN ;¡; ~f 'Ii ¡j" ~, r ~, ~, Having read the award of the majority, I have concurred in the final decision. ~: My concurrence is based solely on the evidence presented at the hearing-in particular the evidence of Dr. Naidoo (see page 6 of the award), who was called as a specialist in this matter, has to be preferred over the evidence of Dr. Lamb, a general practitioner attending the grievor. " My decision to concur in no way detracts from my view that, in certain situations, work-related stress should be and can be a compensable injury.