HomeMy WebLinkAbout1989-0350.Addario.93-04-13 /
'~*'" - :" ONTARIO EMPLO¥~:S DE LA COURONNE ~ t
' " . ' CROWN EMPLOYEES DE L 'ONTARIO
~ GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
DUNDAS STREET WEST, SUITE 2700, TORONTO, ONTARIO, MSG ~Z8 TELEPHONE/TELEPHONE: (416)--~25~ ;388
RUE DUNDAS OUEST. ~UPtEAU, 2;00, TORONTO {ONTAR¢OJ. MSG-~Z8 FACSIM~.LE~T,~':L~COP~E: {~16~ 326-~396
350/89
XH THE I~TTER OF ~1 ~ZTI~TXON
Uxtde~
THE CROWN EHPLOYEES COLLECTIVE B,~I~(~INXNG ACT
Before
THE GRIEVANCE SETTLEHENT BOARD
BBT~EBN
OPSEU (Addario)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
J. Carruthers Member
F. Collict Member
FOR THE A. Ryder
.UNION Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE I. Werker
EMPLOYER Coumsel
Fraser & Beatty
Barristers & Solicitors
May 19, 1992
August 17, 25, 1992
(
DECISION
The gfievor, Ms. Margaret Addario has grieved that she has been denied long term Income
Protection (LTIP) benefits for the period September 13, 1986 to May t, 1989 contrary to the
collective agreement.
The only witness to testify was the grievor. The employer did not call any witnesses.
However 37 documents were filed as exhibits. The grievor joined the classified service in 1982.
Since August 1983 she held the position of secretary to the Chief. Serologist at the Serology Dept.
in the Ministry's Laboratory Sen/ices Branch at Rexdale, Ontario. The grievor's troubles began on
Frtday March 2, 1984 when she felt a sharp pain in her lower back as she bent down to pick up a
package of typing paper. On Monday she found it very painful to work sitting down. At lunch she
.reported her condition to the nurse at the Branch. The next day she attended work but later visited
a medical clinic near her home, where she was seen by a Dr. Chris, who referred her for x-rays.
She stopped attending work after a few more days because of the pain and remained off till August
1986.
In August 1986 she returned to her job, but only on a part-time basis working 4 hours a day.
While she still had the pain, she was able to cope. However when she went back to full-time hours
'she could not continue for more than a few days. She went off again in October, 1984. She started
to receive LTIP benefits from November 27, 1984.
By letter dated August 13, 1986, she was notified by the employer that her LTiP benefits witl '
be discontinued as of September 13, 1986 and offered to the grievor a full-time position as Clerk
Typist In the Serology Branch effective September 15, 1986. On August 15, 1986 the grievor
showed this letter to her family physician, Dr. Ruggiero, who by this time had seen her several times
regarding her back problem. Dr. Ruggiero gave her a medical note indicating "This lady is able to
work 4 hours per day 1-1/2 hours sitting and 1/2 hour standing x 6 months". The grievor testified
that the doctor suggested that she should try working 4 hours a day and that she agreed .......
The grievor's uncontradicted evidence is that she tnformed her employment counsellor, Ms.
Elaine Sandor and Mr. C. Appetbe Director of Human Resources, of her doctor's opinion and
showed them the medical note. Ms. Sandor responded that there were no hatl day positi[~ns with
the Ministry. Mr. Appelbe did not respond to the doctor's recommendation at ali, but suggested that
since the grlevor was not willing to accept the full-time position offered, she should apply for a leave
of absence. According to the grievor, Mr. Appelbe "practically dictated" a letter wherein the grievor
informed that she can onty work four hours per day and requested a leave of absence without pay
for 6 months. She prepared and signed' this letter and sent it to Mr. Appelbe together With Dr.
Ruggiero's note. It was understood between Mr. Appelbe and the grievor, that the gdevor will be
appealing the decision to discontinue LTIP benefits.
The grlevor's appeal was denied by a letter dated April 21, 1989 from the insurer Conferated
Life. That letter reads:
Further to our correspondence of December 7, 1988 regarding the status of your
appea! to receive L.T.I.P. benefits, we have concluded a further, review of your file
following receipt of additional medical information.
The review of the medical information in your file indicated that atthough you have
a chronic pain syndrome, there are no substantial, objective, physical findings or
problems.
You have been advised that therapy, exercise, weight loss, and supportive ca're
from your physician would be necessary on an ongoing basis, and a
recommendation has been made to increase your activity level towards eventually
resuming employment.
Your claim was paid for the period November 27, 1984 to September 12, 1986.
The definition of total disability during that period was for your occupation as a
Secretary. Benefits ceased September 12, 1986 on the basis that the medical
evidence did not support a degree of total disability on a continuous basis sufficlent
to prevent you from performing any occupation.
While we note that your chronic pain has remained throughout, in review of the
various reports on file, you~have not been under any further medical treatment of
any significance in order to better deal with your complaints of chronic pain. As
well, while the recommendation at the time was to attempt to increase your activity
level' with the view to resuming employment, to date as far as we have been able
to determine, you have not pursued such attempts at any work.
It is possible that your present day medical status might be such that it does not
permit you to resume any regular gainful employment. However, this is not a
consideration in respect tO our decision regarding benefit ent~ement beyond
September i3, 1986. Indications at that time were that you could not be
considered continuously totally disabled and thereby preve~nted from attempting to
resume gainful employment.
In conclusion then, there has been no new evidence presented to establish that as
at September 13, 1986, you were continuously and totally disabied and thereby
prevented from attempting to resume any gainful employment. The medical
evidenCe did not establish continuous total disability for..~.~ occupation, and so we
must advise ooce again that our decision to terminate benefits as of September 13,
1986 remains unchanged.
We regret that this decision cannot be of a more favourable nature.
The gdevor eventually returned to full-lime employment on June 12, 1989, in a clerical
position in the Serology Dept. office. She contfnued that employment unti~ May 28, 1990, when she
went off again because of health problems unrelated to her back probtem.
The evidence is that the grievor received LTiP benefits for the period November 17, 191~4
to September 12, 1986. The claim in this grievance is for the period September 13, 1986 to May
~, '~989, for which the grievor was denied benefits.
Eligibility for LTIP benefits is governed by the following provisions of the collective
agreement.
42.2.3 Long Term Income Protection 'benefits commence after a
qualification period of six (6) months from the date the employee
becomes totally disabled, unless the employee elects to continue
to use accumulated e, ttendance credits on a day-to-day basis after
the six (6) month period.
42.2.4 Total disability .means the continuous inabil~y 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 fred by
education, training or experience.
The 6 month qualification period specified in article 42.2.3 Is not in issue in this case.
Article 42.2.4 deals with eliglbility for two distinct periods. The first consists of the qualification
period and the first 24 months of benefit period. To be eligible for benefits during this period
{referred to by counsel as the "pre-definition change period") an employee must, under article 42.2.4,
establish that h~ Is unable "to perform any and every dub/of his normal occupation". It is common
ground that the grievor met this eligibility requirement. The letter from Confederation Life above
states that the definition of "tota! disability' for this period re, ales to inability to perform "your
occupation as a secretary". As that letter indicates, the insurer was satisfied that the grim/or was
unable in the pre-definition change period to perform her occupation as secretary to the chief
serologist and accordingly she was paid LTIP benefits for that period which ended September 12,
1986.
However, under article 42.2.4 after the qualification period and the first 24 months of
benefits, an employee must meet a different eligibility test to be entitled to continued benefits. This
was referred to as "the post definition ch,ange pertod". That test in article 42.2.4 is the inability to
perform "any and every duty of any gainful occupation for which he is reasonably fitted by
education, training or experience". The insurer and the employer have taken the position that the
grievor did not satisfy this test for the post-definltton.change period, ti was this conclusion that
caused the discontinuance of the LTIP benefits from September 13, 1986. . .......
Counsel advised the Board that they were unable to find any G.S.B. decision dealing with
eligibility during the post-definition change pertod. Before we deal with that issue, however, we turn
to a further reason re~ied on by the employer and the insurer as justifying the discontinuance of the
grlevor's benefits. The insurer alludes to this in the following paragraph in Its letter denying the
grtevor's appeal:
While we note that your chronfc pain has remained throughout, in review of the
various reports on file, you have not been under any further medical treatment of
any significance in order to better deal with your complaints of chronic pain. As
~ell, while the recommendation at the time was to attempt to increase your activity
revel with the view to resuming employment, to date as far as we have been able
to determine, you have not pursued such attempts at any work.
Counsel for the employer also argued that the grievor had "not done all she could" to
rehabilitate herself. He pointed to references in medical documentation to possible surgery and to
cortisone injections, and a recommendation that she increase her exercise activity, The grievor
'could not recall any suggestion of surgery. The medical report simply states that the doctor asked
if the grievor would consider surgery and that she declined. There is no evidence to suggest that
the doctor seriously discussed and recommended, surgery, including matters such as the risk
involved and the chances of success. What the document indicates is a casual conversation where
the doctor asked the grievor if she would consider surgery and that the grievor declined. This In
our view does not justify a conclusion that the grievor refused or failed to follow a course of medical
treatment prescribed. With regard to the injections, the grtevor's uncontradicted evidence is that
it was discussed but that nothing came of it. The evidence is conclusive that the doctor's letter
recommending increased exercises and activity was addressed to the insurer and that the grievor
· became aware of that for the first time during the arbitration hearing·
On the basis of all of the evidence, we are convinced that the grievor cooperated with the
employer, saw every doctor she was referred to and followed any prescribed treatment to the best
of her ability. ..
Therefore, this grievance must be determined on the basis of whether the grievor met the
definition of "total disability' for the post-definition change period. The prepon, derance of medical
evidence filed establishes to our satisfaction that during this period the grievor was unable to
perform her own job as secretary to the chief serologist on a full-time basis. The insurer and the
employer had recognized that this was the case up unt~l September 12, 1986. There is no evidence
that there was any degree of improvement in the grievor's condition on or around that time which
suggests that after September 12, 1986,' the grievor had recovered sufficiently to be able to perform
her job on a full time basis.
HoWever, as already noted, the lnabirity to perform one's own job does not necessarily
entitle an employee to LTlP benefits during the post-definition change period. The medical evidence
in this regard does not contain substantial conflicts. It is therefore not necessary to review that
'evidence in detail. The conclusion to be drawn from ali of the medical evidence available is that the
grievor was able to work subject to two limitations. First, she could only work part-time four hours
per day. Second, her work should not require prolonged sitting, She must be able to stand for 1/2
hour after every 1-1/2 hours of sitting.
On employer counsel's interpretation of the test in article 42.2.4 for the post-definition
change period, the grievor clearly fails to meet it. According to him, in order to satisfy this test the
grievor must not only show that she cannot perform her own iob, but that she cannot perform any
job within or outside the Ministry and even outside the Ontario Public Service. Moreover, it is his
position that since the legal onus is on the grievor to prove that the denial of LT1P benefits was
contrary to the collective agreement, the grievor must satisfy the Board that she was unable to
perform any such job. Counsel submits that since the grlevor's own physician had certified that she
was able to work part-time (4 hOurs per day) that by itself is fatal to the grievor's case; In a nut-
shell, the employer's position Is that as long as an employee is able to do work to any extent, she
is not "totallY disabled", even in the absence of any evidence to ~.how that a position meeting her
restrictions was available.
- We first turn to the employer's position that the grievor's obligation goes so far as to require
her to establish that she cannot perform any work Outside the Ontario Public Service. Counsel
submits that articte 42.2~4 refers to "any gainful occupation for which he is reasonably fitted by
education, training or experience". In his view, in order to ~imit the scope of this provision one
would have to read in the words "In the Ontario Public Service" into the article. This he submits is
tantamount to amending the collective agreement, something this Board Is not empowered 10 do.
With respect we cannot accept the employer's position, it must be remembered that the
collective agreement is between the crown.as the employer and OPSEU as the employee bargaining
agent. The purpose 'of this collective agreement, as is the case with all collective agreements, is
to set down terms and conditions that will govern the employment relationship between the
employees and the particular employer who is party to it. The purpose of LTIP is to provide income
protection to employees when they are disabled and unable to earn a livelihood with the employer.
it will indeed be an extremely unusual event that a benefit negotiated between the parties hinges
on the availability of employment elsewhere. We cannot think of any other provision in this or any
other collective agreement we have come across, where circumstances outside the employer's.
workplace dictate the eligibility to a benefit under a collective agreement. We have no doubts
whatsoever that when the parties refer to "any occupations" in article 42.2.4 they are referring to
occupations with the employer, namely, the crown in right of Ontario.
9
We are reinforced in this view by the practical difficulties created by adopting the
employer's position. If the employer is correct, how broad is the scope of the phrase "any ..........
occupation". If the employee had been empfoyed in Toronto In the Ontario Public Service for
example, is she required to show that she cannot perform any occupation in all other levels of
government and the private sector in Toronto only?. Or must she show that she cannot perform any
job anywhere in Ontario? Since the provision simply says 'any occupation" 'without any
qualification, arguably she may then be required to show that there is no job in Canada that she is
able to perform before she qualifies for LTIP benefits for the post-definition change period. How is
anyone going to establish at a Grievance Settlement Board hearing that there were no jobs outside
the Ontario Public Service that the grievor was able to perform, it simply makes no sense.
This leads us to the employer's position that as long as an employee is able to work to any
extent, he is disqualified from recei~ing LTIP benefits during the post-definition period, even though
no position meeting the employee's restrictions is available. As atready noted, the medical evidence
Is that the grievor was able to work within certain restrictions, namely only four hours per day and
no prolonged sltting, tf the employer's position is accepted, then clearly the grievor would not meet
the test in article 42.2.4.
When an insurer or a physician refers'to "total disability" it is possible and indeed is
probable that they would understand the term in the ,way the employer suggests. However, here
we are attempting to ascertain what the employer and the trade union intended by inability to
perform any and every duty of "any gainful occupation', for which he is reasonably fitted. This
provision of the collective agreement must be interpreted in light of its purpose, namely to provide
income protection to employees who are prevented from earning a living because of a disability.
Given this intention of income protection, does it make sense that the parties would deny. that
income protection to an empioyee who has the ability to perform the duties of an occupation in the
abstract, but is still 'unable to earn a IMng because no position within her abilities is available? We
think not. If an employee has the qualifications and experience to be a model and is able to .........
perform duties in that occupation two hours a day, does that disentitfe her from receiving LTIP
benefits in the absence of evidence that she could have such a position. That does not in our view
make any sense because that an employee a.nd an employee who cannot perform any work
whatsoever, are in the identical position when it comes to the ability to earn an income through
work. They both have no income because of a disability, The'parties would have intended to cover
both employees under article 42.2.4.
Despite the very able submissions of employer counsel, we are persuaded that when the
parties referred to 'any gainful occupation", they were referring to real and available occupations
and not to imaginary ones. The use of the term "gainful" implies an abifity to earn income. An
ability to perform duties in an occupatlon in the abstract does not enable the employee to earn any
income. The parties in our vlew did not intend to exclude such an employee from coverage.
The uncontradicted evidence is that the gfiev0r presented her doctor's note recommending
that she can work 4 hours a day.w~th no prolonged s~tng to both her employment counsellor and
to Mr. Apl>elbe. The former's response was that there were no such positions in the .government
service. When the gfievor indicated to Mr. Appelbe that she was willing to .try four hours a day as
suggested by her doctor, Mr. Apppelbe's only response was to suggest that the grievor apply for
a leave of absence. There is no evidence whatsoever that there was available any position within
the grievor's restrictions or even that the employer at any time turned its mind to attempt to find
such a position for the grievorl It is certainlY clear that the employer did not at any time indicate
that a position meeting the grievor's restrictions might be availabJe. The result was that the grievor
was unable to work at all and had no income whatsoever. While the grievor did not actively pursue
or demand a part-time position, in view of the employer's demonstration of no interest in that
possibility, the grievor is not to be faulted for her attitude. There Is no suggestion that the employer
would have been able and willing to accommodate the.grlevor with a part-time position meeting her .......
restrictions, had the grievor actively pursued such a posit[on more aggressively.
Employer counsel submits that the onus is on the grievor to establish that there were no
positions available within her restrictions. We cannot accept that. It is the employer who has the
lmowtedge as to what positions are available in the public service. Once it is established that the
grievor made the employer aware of her restrictions and her willingness to work within those, the
onus shifts to the employer to show that such a position was available and that the grievor was
made aware of that. There is no evidence whatsoever to indicate that the employer was even willing
to consider the grlevor's request for part;time worl<.
Finally, employer counsel submits in the alternative that if the Board finds in favour of the
gr[evor, her eligibility for LTIP bener~s should be restricted to the time when the grievor's condition
of "chronic pain syndrome" was first diagnosed. It Is argued that it is this condition that would
cause total disability and that there was no basis to conclude that the grlevor was totally disabled
any time prior to that.. On the~asis of the totality of the evidence we cannot agree, The evidence
is clear that the grievor's condition did not change to any Significant degree throughout the period
of claim. Mdre specifically, there is no evidence to suggest that there was any change in her
condition around the time when the diagnosis was first made. The reasonable conclusion to be
drawn in these circumstances is that the grievor's condition of chronic pain syndrome existed
throughout, although it took some time for a diagnosis to be made. It is not reasonable to conclude
that the condition itself started the day the diagnosis was made.
it follows from alt of the foregoing that the grievance must succeed, and that the grievor
was entitled to receive LTIP benefits for the period ctaimed. The employer is directed to provide
the benefits. We leave it to the partles to agree upon the appropriate compensation. If they fail to
agree, we remain seized with jurisdiction ~o deal with the same .....
Dated this 1 3 day of Ap~: :L ~. lg93 at Hamiltoi~, Ontario.
N. Dis~nayake
Vice-Chairperson ·
rruthers
Member
F. Collict a~' l::ached)
Member
PARTIAL DISSENT
RE: G.S.B. ~350/89 (ADDARIO)
This Member is in agreement with major findings in this award. However, he can only
agree that Ms Addario was entitled to six months of LTIP benefits during the post-
definition'change period as opposed to the approximate 32 months of LTIP benefits
awarded.
The essence of this partial dissent is based upon the absence et EVIDENCE to
substantiate the disability of Ms Addario over the 32 m0nth.period; and the onus to
produce that evidence is clearly upon Ms Addado' (see DORMAN, G.S.B. #72/78,
page 7).-
· Essentially, much MEDICAL INFORMATION was presented to the Board associated
with Ms Addario's medical condition. However, other than observations made in
writing by the various doctors, EVIDENCE, as such, was not produced to support a
contention of inability to work during the whole 32 months post-definition change
pedod, other than the letterer Doctor Ruggiero dated August 15, i986 - which
covered only a six month period.
(._ The many letters from doctors submitted to the Board indicated that Ms Addario had
been examined and that certain findings had or had not been determined, However,
they did not indicate that Ms Addario was disabled and was unable to perform her
own work or work comparable to that which she usually pedormed.
In a letter dated September 28, 1988, Dr. Rado summarized the majority of the
medical information concerning Ms Addario's condition. His conclusion was that she
could "...undertake the substantial duties of her usual occuoation..."
2
Clearly, this is one more opinion from an independent medical exar~iner. However,
this particular medical examiner is on record as stating that Ms Addario can ",.:actively.
participate in the workforce...", in her usual occupation. The other medical information
presented to the Board did not indicate that Ms Addario was unable to'work, with the
exception of Dr. Ruggier0's letter of'August 15, 1986 which did state that she could
return to work - but with some limitations; and the onus .of proof of inabi{ity to work is
upon the grievor.
In view of the above, this Member does agree that LTIP is payable to Ms Addario for
a period of six months during the post-definition change period. T~e reason for this is
as follows:
1. The Employer offered Ms Addado a full-time position'as a Clerk-Typist. This
was not her normal occupation of Secretary. However, it was a position for
which Ms Addario was reasonably suited "by education, training and
experience.".
2. Ms Addario submitted to her Employer a letter from her Doctor, dated August
i 15, 1986, which stated, ~
"This lady is able to work 4 hours per day 1 1/2 hours
sitting and 1/2 hour standing X 6 months"
3. Article 42.2.4 is set out at page 5 of the award. During the post-definition
change period, Ms Addario was offered a position other than her normal .
occupat!on for which she was reasonably suited. However, it was a full-time
position, which her Doctor stated she could no.__[t pedorm. · Inasmuch as she
could not, therefore, pedorm "any and every duty" of the full-time Clerk-typist
(
3
position to which.she was assigned (ie. a 7 t/2 hour day job), she clearly was,
by definition as set out in Article 42.2.4, "totally. disabled" and could not perfor-m
the job assigned to her.
4. This restriction of a four hour per day work assignment proposed by.Ms
Addario's Do~or, was for aperiod of six months only. Following the
"termination of that six month period, there was no evidence presented to the
panel that would indicate that Ms Addado was totaJly disabled or that she was
unable to return to work to perform her normal occupation or indeed, any other
occupation for which she was reasonably suited by education, training or
experience. '
5. In view of the above, this Member would conclude that Ms Addario was entitled
to LTtP for six months on_D~ during the post-definition change period.
This member dissents with the majority in paying to Ms Addario during the post-
definition change Period, LTIP benefits for the pedod of September 13, 1986 to may 1,
1989, a period of more than two and one half years -- almost 32 months. The
reasons for this are as follows:
1. Ms Addado's condition was examined on various occasions by Doctors ~between
1984 and 1988. In a letter dated July 15, 1988, Ms Addado was requested by
Confederation Life to be examined by an independent doctor specializing in
Physical Medicine for the purpose of assisting in the on-going assessment of
her claim for LTIP during the post-definition change period,
4
2. In a letter dated September 28, 1988, Dr. Rado, the independent medical
examiner who examined Ms Addario and reviewed the medical evidence .....
assoc~iated with her condition, reported his findings to Confederation Life which
were, in part, as follows:
"Following my examination, I was able to review the
documents which you sent me. TheSe included reports
1rom Dr. Ruggiero (December 19, 1984, March 5, 1985,
May 3, 1985, August 28, 1985, December 9, 1987), Dr.'
West (July 24, 1985), Dr. Chris (January 31, 1985), Dr.
Gertzbein (July 16, 1986), Dr. Cooper (August 25, 1987,
February 19, 1988I, Or. Gregory (May, 1988)"
(Page I}
Dr. Rado expressed his opinion of Ms Addado's condition in hiS letter, as the
i~dependent medical examiner, as follows:
"Overall, the findings on present examination differ little
from those noted on examination 3 and 2 years ago. This
suggests that the problems have become chronic. There
has been no aggravation of symptoms which tends to
indicate that there 'is no worsening of the underlying
anatomical problem which is most likely Iow-back strain.
the patients well preserved joint function and muscle bulk
tend to indicate a high level of functioning. Repeated
examinations have not demonstrated substantial obiective
findin.qs of ohysicat abnormafitv sufficient to support her
proloncled disability status. Based on the examination, I
would not expect her to be significantly limitect in carrying
out her home responsibilities and to actively participate in
the workforce..."
{underscoring added) (page 3)
.'
5
".Based on my assessment, I found no si.qnificant physical
impediments which would lead me to conclude that this
patient would not be able t~) undertake the substantial
duties of her_usual occuc)atipn."
(underscoring added) (page 5)
3. No additional medical evidence was submitted to support the extensive 'absence
of Ms Addario followina the letter of Dr. Ru_cLqiero dated Au.~ust 15, 1986.
Moreover, it should be noted that subsequent to a review of' all of the medical
documentation associated with'her condition, not only did Dr. Rado find n....~o
ohysical imoediment preventing her from a return to work, he indicated that she
could "..,undertake the substantial duties of her usua_.___[I occupation". That is, it
was not recommended that she should be assigned ioa job other than the
position of Secr. etary, which was the position she fitled in 1984. when her
condition first occurred.
4. Finally, it should be noted that Ms Addario was advised that her claim for a
( continuation of LTIP benefits was denied in a letter dated April 21, 1989. It is
significant that a letter from her Doctor, Dr. Ruggiero, dated April 25, 1989, only
four days 'later, indicated that she was "abie to return to her regular work".
5. In the view of~Member, a clear inference may be drawn between the
absence of medical evidence to support a claimed disability on the part of Ms
Addario for the last 26 month period for which LTIP was claimed, the denial of
LTIP for the period claimed, and the prompt recovery (4 days after denial of the
LTtP appeal) to return to work to her usual occupation. The April 25, 1980
letter from her Doctor, Doctor Ruggiero, did. not even make a' recommendation
6
that she should return to a modified or other position to which one might be
assigned on a restricted or limited basis.
in conclusion, the onus of proof associated with a claim for sick leave entitlement (and
sick leave benefitS) is upon the .arievor. (See DORMAN, G.S.B. #72/78 page 7). After.
the termination of the six month period at the commencement of the post-definition
change period,' there was n_~o evidence submitted by Ms Addario (following the August
15, 1986 medical note from Dr. Ruggiero)to substantiate an inability to pedorm her
occupation or any other occupation for which she was suited by .education, training or
experience.
Clearly, Ms Addario cannot, as it were, "sit in the bushes"! Ms Addado has a
responsibility to advance evidence to the effect that she is ur~able to work. She failed
to do this.
In FLETT, G.S.B. #2937/91, the following comment was made by the Board:
"The Board takes as its point of departure that an employee
need not be in pedect health in order to attend to his or her
t job duties."
(page 11)
However, to be entitled to the benefits ir) this subject case (Addario),' the onus is upon
the grievor to provide documentation of inability to work. This was not done in this
case beyond the time internal referred to above.
F.T. COLLICT ~ --~ ' DATE