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HomeMy WebLinkAbout1990-0866.Rhodes.91-11-18 'J ~ " ,. 1 ~ \ 1-: .¡.: \ It' . ONTARIO EMPLOYÈS DE LA COURONNE CROWN EMPLOYl;ES DE L'ONTAAIO 1111 GRIEVANCE COMMISSION DE 1 . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET wEST, SUITE 2100, TORONTO, ONTARIO, MSG 7Z8 TELEPHONE/TELEPHONE: (416) 325- 1388 780, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIOj, M5G lZ8 FACSJMILE/n:LÉCOPIE, (416) 326-1396 866/90 ~ ". IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rhodes) Grievor - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer BEFORE: N. Dissanayake Vice-Chairperson r. Thomson Member H. Roberts Member FOR THE N. Coleman GRIEVOR Counsel Gowling, Strathy'& Henderson Barristers & Solicitors .. FOR THE L. McIntosh EMPLOYER Counsel Crown Law Office (Civil) ..;:.~- Ministry of the Attorney General HEARING October 31, 1990 January 24, 1991 February 5, 1991 , '. , 2 DECISION . The grievor, Ms. Linda Rhodes, grieves that she has been denied long term income protection (LTIP) benefits ,contrary to the collective agreement. She seeks benefits for the period July 26, 1986 to October I, 1989, on which date she commenced receiving LTIP benefits. A preliminary issue was raised by the employer that the Board had no jurisdiction over a grievance alleging denial of LTIP benefits. In addition the parties were in disagreement as to whether the grievor was eligible to receive LTIP benefits for the period in question. GSB jurisdiction over a grievance alleging denial of LTIP benefits This has been a much litigated issue. The first significant decision of the Board '. was Re Hooey, 348/81 (Weatheríll). The employer raised a preliminary objection to the Board's jurisdiction to hear a grievance alleging a denial of LTIP benefits. The Board in a decision dated January 17, 1983 concluded as follows: It is clear that among the employee benefits provided for under the collective agreement is to be a long term income protection plan. It is implicit in the collective agreement that the employer is to arrange for such a plan, and its express obligation is to pay eighty-five per cent of the monthly premium therefor. It 15 acknowledged that the employer has ,. , arranged for such a policy of insurance, and that -t . J it has paid" its share of the premium cost~ There I is no issue in this case as to the appropriateness of the policy provided, nor of its providing the I benefits called for by the collective agreement. The essence of this grievance is that a claim under the policy has not-been met or, more precisely, that the insurer has terminated the payment to the grievor of cert.ain benefit payments. The employer I s objection to the arbitrability of this matter is that the grievance involves a claim against the insurer, and that it does not involve a claim of violation of the collective agreement. In our view, the, employer's objection is well- founded. The employer's obligation under the collective agreement is to arrange for a policy of long term income protection insurance meeting certain criteria, and to pay eighty-five per cent of the premium thereof. Such a policy has been arranged and as we have noted it appears to provide the benefits which the collective agreement requires be provided in such a policy. The employer has paid its share of the premiums for such insurance. That being the case, the employer has met its obligations under the collective agreement in respect of this benefit. The benefit, that is, is insurance. The employer is not the insurer, --and is not itself responsible for the provision of the benefits - although it might well be so responsible if, for example, it had failed to meet its obligations by not providing the insurance. The union sought judicial review of this decision. On ~ay 18, 1984, the application for jUdicial review was dismissed, the court unanimously holding that lithe majority - correctly interpreted,the collective'agreement as requiring the employer to provide insurance, not to provide the benefits referred to in the agreement". The court went on to hold that since the employer had provided a policy of insurance with the benefits called for In the collective agreement, the I I · 4 employees' claims should be against the insurer, not against the employer. Then came the Board I s decision in Re Sekhon, 418/83 (Jolliffe) known as liRe Sekhon I", dated August 24, 1984. In upholding the employer1s preliminary objection to the Board's jurisdiction, the Board concluded that that case was the same as that raised in Re Hooey and·' that lithe result becomes inevitable in light of the Divisional Court judgement in Hooey". Re sekhon I in turn was the subject of an application for judicial review. In a unanimous decision the court concluded that by finding that it did not have jurisdiction to hear the grievance the Board committed a, jurisdictional error. The court makes the following findings: 'The collective'agreement for 1982 under which this grievance is said· to be made unlike the collective agreement, in force during the Hooey grievance provides specifically under a new heading, IIInsured Benefits Grievance" section 27.9.1: where an employee has a complaint'that he has been denied benefits pursuant to the insured benefits plans specified in Articles 39, 40, 41, 43, 46, he shall discuss the complaint with his supervisor wi thin twenty days of first becoming aware of the complaint and in the next sub-section: if the complaint is not satisfactorily resolved by the supervisor ,within seven days of the, discussion the employee may refer the complaint in writing to the Joint Insurance Benefits Review Committee. - It' . I 5 The subsequent sections provide for a clear procedure. If the committee fails to resolve the problem the employee is given the right under section 27.9.3 to file a grievance in writing with the Executive Director. This grievance to the Executive Director is considered by that section to be the second stage of the grievance procedure for the purpose of this article. The final stage is to the Grievance Settlement Board as provided for in section 27.9.4. The board had jurisdiction pursuant to the collective agreement to hear the griE;!vance. The Grievance Settlement Board did not find it necessary to deal with the other threshold issue of whether the employee was an employee covered by the collective agreement of 1982 and we have not considered that issue. The Board had jurisdiction which it failed to exercise by holding itself bound by the Hooey decision in spite of the amendment to the collective agreement which r have read that is section 27.9.1 and subsequent sections. The court went on to quash the Board's decision in Re Sekhon I and remitted the matter to a new panel of the board~ The employer sought and received leave to appeal the . Divisional court's decision, but before the appeal was heard, the parties agreed to remit the matter to another panel of this Board. A new panel of the Grievance settlement Board conducted a hearing on October 27, 1989 and issued its decision unanimously on March 15, 1990. This decision, referred to as Re Sekhon 11;" 418/83 (Saltman), f~amed the issue for determination as - "whether the Board has jurisdiction to determine the merits of the grievor's complaint that she has , It , I 6 been improperly'"denied long term income protection benefits or, in other words, whether a claim for long-term income protection benefits is arbitrable under the 1982-83 collective agreement". The Board in Re Sekhon II compared the provisions of the collective agreement before it (1982-83) dealing with LTIP, and the provisions that were in the 1980-81 agreement before I the panel in Ra Hooey. The key difference was the addition in the 1982-83~agreement of article 27.9 which was not in the agreement at the time the Re Hooey decision was made. The pertinent portions of that provision state: ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, applicaticn, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. . . . INSURED BENEFITS GRIEVANCE 27.9.1 Where an employee has a complaint that he has been denied benefits pursuant to the insured benefits plans specified in Articles 39, 40, 41, 43 and 56, he shall first discuss the complaint with his supervisor within twentÿ" (20) days of first becoming aware of the complaint. 27.9.2 {a} If the complaint is not satisfactorily resolved by the supervisor_within seven (7) days of the discussion, the employee may refer the complaint, in writing, to the Joint Insurance Benefits Review Committee established in Appendix 6 and addressed to It . 7 the Benefits Policy Branch, Civi-l Service Commission, within an additional ten (10) days. (b) 'Any referral to the Joint Insurance Benefits Review Committee under 27.9.2(a) shall include a release of information form (Appendix 7) completed, signed and dated by the employee. (c) The Joint Insurance Benefits Review Committee shall consider the Complaint and the Benefits Policy Branch shall give the employee its decision in writing within sixty (60) days of the committee meeting at which the complaint is discussed. 27.9.3 (a) If the complaint is not satisfactorily resolved under 27.9.2, the employee may file a grievance in writing with the Executive Director, Staff Relations or his designee within seven (7) days of the date he received the decision under 27.9.2(c). In the event that no decision in writing is received in accordance with the specified time limits in 27.9.2 (c) , the grievor may submit the grievance to the Executive Director of Staff Relations within seven (7) days of the date that the Benefits Policy Branch was required to give its decision in writing in accordance with 27.9.2(c). (b) A submission of the grievance to the Executive Director or his designee under this section shall be 'considered to be the second stage of the grievance procedure for the purpose of this Article. The employer in that case argued that the inclusion of article 27.9 only created addití0nal procedural rights, which did not affect the scope of matters which are arbitrable. However, at p. 10-11, the Board disagreed and concluded: In our view, there can be no doubt as to the Board's jurisdiction ~n this matter. Article I· I I 8 27.9.1, which was introduced ~n the 1982-83 collective agreement, provides an employee who has a complaint respecting the denial of benefits pursuant to the insured benefits plans, including the long-term income protection plan, with access to the grievance and arbitration procedure to have that complaint resolved. - There then follows a detailed procedure for the resolution of these grievances, up to and including arbitration before the Grievance Settlement Board. In our view, although there are procedural aspects to the amendments to Article 27,_ by expressly providing that complaints respecting the denial of insured benefits can be referred to arbitration, the parties have created substantive rights, which can be pursued up to and including arbitration. We are reinforced in our view by the provisions of Article 27.1, which allows for grievances relating to the obligation to arrange for a policy of insurance in accordance with the requirements of the collective agreement and with the payment of the appropriate premiums thereunder. Were Article 27.9 intended to cover the same matters I there would be no purpose to the amendment. It seems clear, therefore, that Article 27.9 allows for grievances to be brought respecting the denial of long-term income protection benefits. The Board is, therefore, of the view that this matter, which deals with the termination of long-term income protection benefits, is arbitrable. To the extent that this decision is at variance with the Board's decision in Ross 1059/88, in which a similar objection was raised, we must decline to follow it. We recognize that the Board ought to speak with one voice and that only in exceptional circumstances should one panel of the Board depart from the decision of another: see, in this regard, Blake 1286/87. There are, however, exceptional circumstances in this case which warrant such a departure as it would appear that the panel in Ross was unaware that the earlier Sekhon decision had been overturned on judicial review and that no cçmsideration was given to the amendments to Article 27. It is on the basis of these amendments that the Board asserts jurisdiction in this matter. Therefore, in light of the particular circumstances of this case, the Board finds that the grievance is arbitrable and remains seised to deal with the grievance on its merits. " I .' , I 9 . Counsel for the employer urges this panel not to follow the Sekhon II decision. Firstly, counsel argues that it is open for us to follow one of two lines of authority on the issue of arbitrability of a grievance challenging the denial of LTIP benefits. According to her Re Hooey and Sekhon I is one line of authority and Re Sekhon II J.s another. She main;ains that the former decisions are still good law and we area t 1 iberty to follow them. We disagree. Re Hooey we agree is still good law when considered in light of the collective that existed at the time. This was held. to be so by the Divisional Court. However, the essence of the Divisional Court's decision in Sekhon I is that the reasoning in Re Hooey is inapplicable because of the changes in the 1982-83 collective agreement. That is why the Court quashed the Board's award in Sekhon I which purported to follow Re Hooey despite the amendment to the collective agreement. As th~ Board notes at p. 4 in Sekhon II, the court went on to decide the jurisdictional issue itself, by directly expressing the view that the Board had jurisdiction and' that the grievance was arbitrable. That is clearly contrary to the conclusion reached by the Board in Sekhon 1. Therefore, Sekhon I can no longer be regarded as good law. The only good law available on this issue, following the amendment of the collective agreement, is that in Sekhon II. I , 'f 10 Therefore, we should consider the employer's argument as to . why we ought not to follow it. Counsel reargued before us a submission considered and rejected by the Board in Sekhon II to the effect that the amendment to article 27 only created . procedural rights and not substantive rights. Whether we apply an "exceptional circumstances test" [Re Blake, 1286/87 . (Shime)] or a "manifestly wrong test" [see, Ministry of Correctional services v. OPSEU (Daniel Dupuis) and GSB, (Div. ct. of Onto May 8, 1990) ] we see no justification for not following the Board's decision in Sekhon I I , as'far as the arguments it considered and rejected are concerned. However, we are prepared to consider in addition, what Counsel described as a new argument based on section 7 of the Crown Employees Collective Bargainin9 Act, which had not been made to the Sekhon II panel. The Section 7 arqument Section 7 of the Crown Employees Collective Barqaininq Act reads as follows: 7. Upon being 'granted representation rights, the employee organization is authorized to bargain with the employer on terms and conditions of employment, except as to matters that are exclusively the function of the employer under subsection 18 ( 1) , and, without limiting the generality of the foregoing, including rates of remuneration, hours of work, overtime and other premium allowance fer work performed, the mileage rate payable to an employee for miles travelled when he is required to use his own automobile on the employer's business, benefits pertaining to time not worked by employees -- ¡., 11 including paid holidays, paid vacations, group life insurance, health insurance and long-term income protection ~nsurance, promotions, demotions, transfers, lay-offs or reappointments of employees, the procedures applicable to the processing of grievances, the classification and job evaluation system, and the conditions applicable to leaves of absence for other than any elective public office or political activities or training and development. Counsel points out that in section 7 what the union is authorized to bargain about is long-term income protection ! "insurance" and not "benefits". Counsel contrasts the , reference in the same provision to "benefits pertaining to time not worked by employees", and argues that. where the legislature intended to refer to "benefits" it has used that term. Counsel contends that with regard to LTIP, the legi31ature deliberately used the term It insurance" instead o'f "benefits" because it intended to authorize negotiations only over LTIP insurance and not LTIP benefits. Therefore counsel submits that even if the Board in Sekhon II was correct in holding that the new provision in article 27 conferred a substantive right to LTIP benefits, the parties had no authority under section 7 to negotiate such a right. In other words, the parties only had authority to negotiate a procedure relating to LTIP, but had no authority to negotiate for LTIP benefits itself. Counsel relies on Re Keelinq, 45/78 (Pritchard) in submitting that a provision in I I I ; t 12 the collective agreement which the parties had no authority to negotiate under the Act is of no force or effect. Even if we accept all of the foregoing reasoning, the section 7 argument must fail simply because, that provision does not purport to set out an exhaustive list of all of the terms and conditions of employment that may be negotiated by the parties. It isa general provision authorizing bargaining relating to terms and conditions of employment lIexcept as to matters that are exclusively the function of the employer under subsection '18 (l) " The section states that the . . . . union may bargain t'erms and conditions of employment "without limiting tþe generality of the foregoinglt and prefaces the list of negotiable items with the word lIincluding". Therefore, the absence of a reference in section 7 to LTIP "ben'efits" , does not prevent the bargaining of that benefit. In summary, we do not find the Sekhon II decision to be incorrect. For the reasons given, the new Itsection 7 --~'!"'''argument" has no merit and does not persuade us that we ought to depart from the conclusion reached in Sekhon II that, under the collective agreement as presently framed, a denial of LTIP benefits is an arbitrable matter. Accordingly, we shall proceed to deal with the merits relating to the grievor's eligibility to benefits. ,t 13 Eligibility for benefits There was no viva voce evidence adquced at the hearing. The relevant facts were presented to the Board by way of an agreed statement of fact and a total of 88 documents filed on consent. The grievor, Ms. Linda Rhodes has been employed with the Ministry of the Attorney General since october 1975 as a court clerk. On October 5, 1985 she had her second child. While her maternity leave ended in December, 1985 she did not return to work at that time. She was on sick leave until July of 1986 and then was granted a leave of absence without pay. On July 14, 1986, her family physician Dr. M.G. Kennedy issued ... -. -" ~ .. . . ..~ a medical note stating that she was suffering from post-partum depression. The note goes on to advise the grievor to stay off work and claim long term disability. The grievor applied for LTIP benefits, attaching to the application a detailed report dated July 14, 1986 from Dr. . Kennedy. That report states inter alia that the grievor is diagnosed as suffering from "Depression - post parturn", that total disability commenced on October 15, 1985, and that she is under psychotherapy treatment. The report further states that the grievor is unable to perform her regular occupation and, that the prognosis is that she will recover sufficiently to be able to perform those duties within 3 to 6 months. By '. 14 letter dated August 7, 1986, the insurer, Conf~derati6n Life, advised the grievor that the medical information submitted was insufficient to enable it to determine eligibility for total disability benefits and indicated that it had written directly tó Dr. Kennedy requesting further information. On September 25, 198 6,- Dr. Kennedy submitted a further report. It confirms that the grievor was suffering from post- partum depression and that she had been referred to a psychologist for psychotherapy. Dr. Kennedy closes the report with the statement "In summary, I feel this lady is suffering from chronic depression and is unlikely to return to work." In November 1986, Confederation Life required the grievor to submit herself to an interview with a psychiatrist Dr. John Flannery. She attended that interview and on November 17, 1986, Dr. Flannery issued a report based on his interview. Dr. Flannery reviews the grievor's childhood and family situation and concludes that "the. best treatment to interrupt the present state would be for her to resume workingfl. On December 11, 1986 Confederation Life informed that based on Dr. Flannery's report the grievor was "not currently disabled from any physical or emotional condition which would prevent you from performing the duties of your usual occupation of court room clerk". Accordingly the grievor's I I I 15 LTIP claim was denied. She was informed that if she so wished she could submit medical evidence substantiating a state of total disability. The evidence indicates that following the issuance of Dr. Flannery's report, Dr. Kennedy and Dr. Flannery had a telephone conversation during which Dr. Kennedy "strongly ~isagreed" with Dr. Flannery 1 s opinion that the grievor should return to work. (See Tab 37, p. 3) . Dr. Kennedy expressed' his own opinion that "there was absolutely no way that she could cope with work at this time". I I Dr. Kennedy then referred the grievor to a psychiatrist, Dr. G.F. Gower for assessment. Dr. Gower's.report dated March 19, 1987, states that the grievor was incapable of working until recently, but that she was "theoretically capable of working nown. Dr. Gower concludes that the grievor "is already through the worst of the depression and I would not '- exp~ct psychotherapy to extend beyond a few months". Despite stating that the grievor was theore~ically capable of working, Dr. Gower goes on to state "I nevertheless advised her against working for the time being as I believe it would be too stressful after all she has been through ... " . u, On June 19, 1987, Confederation Life wrote to the grievor stating that Dr. Gower "did not see you until your symptoms . I · 16 . were resolved and therefore, this medical evidence is not sufficient to support your being totally disabled for your own job during the period for which you are claiming benefits." On September 23, 1987, the union objected to that letter pointing out that Dr. Gower had clearly recommended that the grievor not return to work. A supplementary report from Dr. Gower was also filed in which Dr. Gower states that Confederation Life had misinterpreted his report. The doctor states: It is true that the worst of her post-partum depression was over when I saw her, but how could my relatively late arrival possibly form a basis for denying the claim? Also, when I said that she was theoretically capable of returning to work in my previous note, I at the same time made it clear that I was advising her against it on account of the son's behaviourial problems and the husband's long hours - this refers of course to her response which is tantamount tg impairment and which r thought would be obvious, especially in a woman recovering from a post partum depression~ (emphasis added) On October 1, 1987, Confederation Life wrote to the union pointing out that Dr. Gower's recommendation that the grievor not return to work "was based on the difficulty she was having ln coping with her son's behaviourial problems and her husband's long hours, rather than an impairment in her physical or mental functioning which would prevent her from performing her usual job duties." -,- -. 't 17 At the request of the union, confederation Life agreed to make a further review of the grievor's claim. The union provided a further report dated February 9, 1988 from Dr. Kennedy. That report reviews in detail the history of the grievor's medical problems and the treatment she received during the period following the birth of her second child in October, 1985 until October 20, 1986. Dr. Kennedy concludes: I feel that Mrs. Linda Rhodes was quite depressed after the birth of her last child. The depression was compounded by stressful situations at home, in her marriage and her life in general. I felt from the period since her last child was born up to when I saw her on October 20, 1986 she was quite depressed. On June 6, 1988, Confederation Life wrote to the union again, stating that despite the additional medical reports "the information on file does not satisfy the policy provision that Mrs. Rhodes was continuously prevented from performing her regular occupational duties for the period being claimed. " Reference was made to Dr. Flannery's report which recommended a resumption of work. In addition,. it was stated that "we have no indication of Mrs. Rhodes' medical supervision or care during the period of thirteen months (October 1986 to November 1987) as Mrs. Rhodes did net continue to see her attending physician, Dr. Kennedy." In the meantime, the griever's cla:m was referred to the Joint Insurance Benefits Review Committee under the collective . . 18 agreement. The committee reviewed the grievor's claim and requested that thè grievor undergo an independent medical examination. She was examined by Dr. J. Jeffries, a psychiatrist at the Clark Institute, who issued a report dated February 16, 1989. Following a relatively lengthy review of the grievor's past history, Dr. Jeffries makes the findings inter alia that "clearly she has had a couple of episodes of post-partum depression." He goes on to state: n she is a woman with a lifelong vulnerability . . . to depression J.n light of major losses of her childhood." Dr. Jeffries then states: I think that Mrs. Rhodes' current state would stronglY suggest that she is not able and indeed has not been able for some years to perform the duties of her usual occupation. I appreciate that this incapacity J.s partly due to attitude even though it is mainly due to symptoms. My own opinion is that it would be very unwise indeed for her to return to the Ministry of the Attorney-general for work. In fact, it would probably be unwise for her to work for any government agency. I think she is likely to distort any slight in that setting into a cause for litigation or a stress from which she has to retreat into further disability. Were she to be placed in some other setting, I.~ould be more optimistic, though not strongly so. I certainly do not feel that at this time she is capable of any full-time work and therefore ~she should be introduced to work slowly. I do not feel myself competent to judge how long it would take her =0 achieve her full potential. I doubt that she will be able to do so before bath children are in full- day school or full-time daycare. (emphasis added) -- ...".,.~, ~_.) - 'I , 19 Upon receipt of Dr. Jeffries' report, Confederation Life wrote to the grievor on May 18, 1989. The reievant portion of which reads: Our file' indicates that approximately 2 1/2 years ago, during your initial psychiatric assessment, you were strongly encouraged to return to the workforce as that would have been the best manner for you to resolve your personal and home problems. We cannot give approval to benefits back to July 25, 1986 because you failed to comply with the recommended treatment. In addition, we cannot use the results of the latest Independent Medical Assessment to validate a period of disability going back now for almost three years. We will, however, be willing to accept this claim on the basis that you are presently incapable of engaging in gainful employment providing you submit confirmation that you are under appropriate treatment and counselling as recommended by the Independent Medical Examiner and that you continue to receive such treatment for the duration of your disability. Accordingly, a disability date of February 6, 1989 was established for the gr ievor and she received LTIP benefits commencing October 1, 1989. The claim in the grievance therefore is for LTIP benefits for the period between July 1986 to October 1989. The union claims that she was totally disabled throughout that period. Counsel submits that any conditions or requirements for eligibility set out in'the insurance policy, which are inconsistent with the collective agreement cannot deprive the , -t 20 grievor of her rights to LTIP benefits in the collective agreement. Counsel goes on to argue that in any event, the grievor has met all of the requirements for eligibility found in the insurance polìcy. The insurer 's justification for denying the grievor benefits for the period in question is succinctly summarized in the Confederated Life letter dated May 18, 1989: As you know, you have not worked since September 1985. Your claim for benefits has been denied on the basis that you did not have a disabling condition which prevented you from performing your normal occupation. As well, you were not under any particular medical treatment, therapy or appropriate counselling for the problems which you claimed prevented you from working. These two grounds, (1) that the grievor had not established a total disability and (2) that the grievor was not under the personal treatment of a physician during the entire period of total disability, were reiterated by counsel for the employer. Counsel concedes that the latter requirement is, contained only in the policy, but submits that as long as such requirements are not in direct conflict with the collective agreement, they should be given effect to. The Board heard submissions on when, if at all, requirements-for eligibility contained in the insurance policy may be relevant, and counsel cited to us numerous legal · t 21 authorities in support of their respective positions. However, for the purposes of disposing of this grievance, we will assume without deciding, that the policy requirements were applicable as a condition of the grievor's eligibility to benefits. We will in turn consider the two requirements for eligibility alleged by the employer to be unsatisfied by the grievor. Tota~ disability Counsel for the employer submits that Confederation Life justifiably concluded that the grievor had not established total disability for the period in question. A review of all of the evidence discloses two aspects relied on by the insurer in taking that position. The most significant of all appears to be the report by Dr. Flannery. Dr. Flannery does not directly state that the grievor was not suffering from chronic depression as diagnosed by other doctors. Nor does he directly address the question whether or not the grievor was totally disabled. However, he appears to be of the view that the cause of the grievor's depression is her circumstances at home. Accordingly he concludes, that the best treatment for the grievor is to return to work. The insurer interprets that , to be a medical finding that the grievor was not totally disabled. I '. . t , 22 '" If that is a reasonable interpretation of Dr. Flannery's report, the learned doctor stands alone with his opinion that the grievor was not totally disabled. There is no question on the basis of the evidence, that Dr. ,Kennedy, who had the most intimate knowledge of the grievor's condition, consistently took the position that the grievor ought not return to work. Dr. Gower, a psychiatrist also advised her against returning to work. And finally, Dr. .Jeffries, an independent psychiatrist to whom the grievor was referred by the Joint Insurance Benef its Review committee concluded in ," ,¡.... ...:;: ~~" . February 1989 that the grievor's ncurrent state strongly suggests that she is not able ~nd indeed has not been able for some years to perform the dutïes of her usual occupation." In' the circumstances, we cannot 3.gree with counsel for the employer that the grievor had not established total disability. It was not reasonable for the insurer to solely rely on the one opinion favourable to it, to the exclusion of the overwhelming evidence to the contrary. Dr. Flannery's opinion was based on one interview. There 1S no evidence that he had access to the grievor's medical history other than whatever he may have obtained from the grievor at the interview. Nor is there any evidence that he talked to Dr~ Kennedy, who· had·been treating the grievor for several years~ before giving his opinion. What the evidence does cf 23 indicate is that in a telephone conversation Dr. Kennedy advised Dr. Flannery that he "strongly disagreed" with Dr. Flannery's opinion and stated that "there was no absolutely no way that she could cope with work at this"tïfuè.1I The overwhelming medical evidence supports a finding that the grievor was totally disabled. While the insurance company relies heavily on the fact that the grievor failed to follow the "treatment" prescribed by Dr. Flannery, namely, an immediate return to work, the grievor can hardly be blamed for that in view of the medical advise she had from Dr. Kennedy and Dr. Gower to the contrary. It is not unreasonable at all that she followed the advise of her own doctor who had treated her for some period of time rather than a doctor who gave an ~pinion based on a single interview with her. The other area of concern expressed by Confederated Life is the fact that the grievor's inability to' work was caused by the grievor's problems at home (a hyper-active son and a workaholic husband) rather than a mental or physical impairment. (See, p. 16 supra) In our view, that IS an absolute misconstruction of the state of affairs. What caused the grievor to miss work was her mental condition which is an impairment. It is the impairment and not the cause of the impairment that constitutes the total disability. As Dr. I Gower points out in his second report, it is the grievorts . -t I I I I 24 response to her husband's long work hours and her, son's behaviourialproblems, that is tantamount to an impairment. To illustrate, let us take two mothers A and B who have chronically ill children. A is unable to attend work because she has no one to look after her ill child and she decides to stay at home to personally look after her child. In B's case, the child's illness has caused her so much stress that she is .. suffering from acute depression, and the depressión' makes her unfit to work. Clearly A 1S not "totally disabled" for purposes of LTIP because she is not suffering from a medical impairment herself. What keeps her away from work is not a medical impairment but her personal and family circumstances. However, B is totally disabled because she is SUffering from a medical impairment and it is her own medical impairment which prevents her from wo~~ing. In the grievor's case, there is no suggestion that she is refusing to work becaus,e she ,', ~.\ wants to stay at home to attend to her personal problems. On the contrary, the evidence is convincing that 'her personal problems have caused or at least have contributed to, a state of accute depression. It was this condition, which is a medical impairment, which prevented the grievor from working. In our view, no matter what the cause of the impairment, . whether it is the work environment, family, personal, or financial problems, if a medical impairment prevents an employee from working, she is totally disabled for purposes of LTIP. ,t 0 25 In Re st. Joseph's Hospital" (1987) 28 L.A.C. (3d) 185 (ponak), the grievor had become extremely upset upon learning that her mother was suffering from a terminal illness. Her doctor recommended that she' stay off work for a period of two weeks. The grievor's claim for sick leave with pay was denied ,- on the grounds that the grievor was not herself ill but was ' ... merely distressed about her mother's illness. The Board disagreed and stated at p. 193: The Board agrees with the union's submission that the Grievor's reaction to her mother1s serious illness could itself be characterized as an illness. The employer took the position that the Grievor was experiencing a life crisis that led to mental and emotional distress, but this was not really an _ illness. with respect, the Board cannot agree with this view. While the Board can agree that the Grievor was indeed in the midst of a life crisis, the Board is more concerned about the Grievor1s response to this crisis rather than to its causes. It is a truism that people respond differently to different situations. Faced with a crisis, some individuals soldier on and indeed find in their·,work a certain relief from the ongoing crisis itself. others react as did the Grievor, with great anxiety. and "an inability to cope". In the BoarØ's view, this in --. no way diminishes the fact that th~ Grievor may have . suffered an illness. One cannot base illness on causes rather than symptoms. The Grievor I s reaction to the illness of her mother was to become emotionally depressed and in her own words she IItotallv fell apart". In the Board's opinion, "Such a situation could fall within the definition of "illness". , (emphasis added) ; ,- " 26 As the Board in Re st. Joseph's Hospital '(supra) holds, it is irrelevant that other employees may be able to continue working with similar problems. It is not surprising that people react differently to problems. Some can cope with stress better than others. The fact is that the grievor found the stress too much. As the doctors have pointed out because she had suffered two episodes of post-partum depression the grievor was more vulnerable to stress. That in our view does not take away from the fact that the grievor was disabled. [See also, Re De Havilland Aircraft of Canada Ltd., (1986) '25 L.A.C. ( 3d) 249 (Davis)]. For all of those reasons we find that there was available to Confederated Life overwhelming evidence that the grievor was totally disabled for the period in question and it was not reasonable for it to have concluded that she was disqualified from receiving LTIP on those grounds. Medical treatment The insurance contract has a general policy which .. provides that lithe employee must be under the personal treatment of a physician during the entire period of total disability. II The employer claims that this condition has not been met. It is pointed eu t- the provision requires the grievor to be under treatment for the "entire periodll. It is contended that there were periods during which the grievor did · -- t ~ 27 not see any doctor for her own condition, and further that even when she did see doctors, she was not receiving any particular medical treatment. Unlike some insurance policy provisions, this contract does not spe~ify periodic (weekly, monthly etc. ) medical visits. The provision is very broadly and vaguely phrased. On the evidence before us, there were periods during which the grievor did not see any doctor relating to her own condition. However, in our view that does not mean that she was not under medical treatment during those times. particularly in the case of a person with a'mental impairment such as depression, such a provision must be liberally construed. Once such a person, puts herself in the hands of a qualified doctor, it is not reasonable to expect her to do anything more than follow the doctor's advice. If the doctor requires that she visit him weekly she can be expected to do so. However, if the doctor advises her toga home and relax and to see him in 6 months, she cannot reasonably be faulted for not seeing a doctor for 6 months. SimilarlYI if the insurer~ employer or trade union requires her to see a doctor she may be expected to comply. If there is no such referral, she cannot be blamed for relying on her own doctor. On the evidence before us there is not an iota of evidence that at any time the grievor was uncooperative or that she failed to follow doctor's orders. The only exception is that she failed to comply with = . . .. _h__ t .. 28 . Dr. Flannery's prescribed "treatment" of returning to work. We have already given our views as to why it was reasonable for her to have done so in·the particular circumstances. Also, the evidence indicates that during the period when the grievor was not seeing her own doctor, she was busy obtaining medical treatment for her son. Since, her son's condition was a major cause of her own impairment, in our view when she obtained treatment for her son she was indirectly addressing her own problem. Employer áounsel is correct in pointing out that there is no evidence that the grievor was under a particular course of treatment for the entire period. However, the grievor can only be expected to comply with any treatment recommended,-by a doctor. What if a doctor's only prescribed treatment is bed-rest at home? The issue of the appropriate treatment is a matter determined solely by the doctor in question. That is out of the cont~?l of the patient. This is illustrated amply by Dr. Jeffries' statement that he was surprised that none of the previous doctors had_prescribed an anti-depressant for th~' grievor. The evidence is clear that the grievor saw every doctor I she was referred to and cooperated with them. There is no I , " . 29 evidence to suggest that she failed to folloVl any doctor's advice as to visits or treatment. \ In all of the circumstances, it is not reasonable to conclude that the grievor was not under mèdical treatment for the entire period. It follows from our findings above that the grievor was eligible to receive LTIP benefits as provided under article 42 of the collective agreement for the period claimed for, July 26, 1986 to October 1, 1989. The employer is hereby directed to provide those benefits. We remain seized in the event the parties encounter difficulty in implementing this award. \ - - - - Dated this 18th 'day of November, 1991 at Hamilton, ontario ~~ N. Dissanayake Vice-Chairperson ~~ 6~homson --Member "1 Partially Dissent" (dissent H. Roberts attached) Member . . . , 866/90 OPSEU (Rhodes) - Ministry of the Attornev General Partial Dissent I regret that I cannot accept fully, the decision reached in the majority award of the Board, on the above case, for the reasons stated below. 1. I accept the ruling in Sikhon II that a denial of LTIP benefits, under the collective agreement as presently framed, is an arbitrable matter. 2. I, cannot agree with the decision to date back payment of LTIP benefits in this case, to July 26, 1986. The definition of Total Disability in Article 42.2.4 of the collective agreement reads as follows- "Total disability means the continuous inability as a result of illness, mental disorder, or injury of the insured employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training of experience." The manual submitted by the Union, containing the Agreed statement of Facts, an Index, and a total of 83 tabbed items constituting the Union's evidence, was referred to frequently during the course of the hearings. During the period in time from July 1986 to July 1988, we find the Following comments in the tabbed manual. Tab 5 -The qrievors application for LTIP, dated 14 July 1986 -item 9 - Do you expect to return to work? - Yes · 'f ; - 2 - .. Tab 5 Pages 12 and 13. Attendinq Physicians Initial Lanq Term Disability Benefits statement - Dr. Kennedy - Page 13- Item 7 proqnasis (b) indicate when you do expect patient will recover sufficiently to perform duties of Regular Occupation? - 3-6 months Tab6 - Report from Dr. G. Kennedv - 14 Julv 1986 "I have examined Linda Rhodes today and still find her suffering from post partum depression. I have told her to stay off work and claim long term disability. II Note. This is the same date on which. on the Attending Physicians Initial Report -Tab 5 -Dr. Kennedy"s prognosis for her being able to perform her regular occupation was 3-6 months. Neither of these comments indicate Total Disability. Tab 13 - Report from Dr. M. G. Kennedv - 25 September 1986 uln summary , I find this lady is suffering from chronic depression and is unlikely to return to work.1I "UnlikelyU lacks the positive weight of "unablell in Total Disability terms. Tab 17- Report from Dr. J. G. Flannery - 17 November 1986 Excerpts -urn her view she is "depressed" and rather looks forward to bèing put on long term disability for ,that. What psychiatric treatment there has been has been ineffectual, and the patient seems to have been offended by it." -lilt occurred to me that living as she does the best treatment to interrupt her present state would be forhèr to resume working." -"Reluctantly she accepted this argument at least to the it... ~ point of compromising that she was prepared to work part-time (part unspecified) and we left it at that.1t - ~ . ... - 3 - , .- Tab 24 - Report from Dr. G. F. Gower - 19 March --1987 -=- "'-.' Excerpts -"When I say she was incapable of working until recently, I mean that I see Mrs. Rhodes is theoretically capable of working now. Both the patient and her husband agree she has improved considerably and she is thinking of looking for work. Neither of them are making a case for an indefinite period of disability" -"I believe that she is already through the worst of the depression and I would not expect psychotherapy to extend beyond a few months.1I Tab 37 - Dr. M. G. Kennedy - 9 February 1988 A long history on the grievor with comments on her depressed states with occasional references to some improvement. Of Special significance in my view is his statement - IIHowever, I cannot tell you how lonq her depression lasted after October 20..1 -...... ..~:-... 1986, as I believe the patient was attending another physician.1I This bears, I believe, on the totality of her disability. Tab 42 - Dr. G. F. Gower - 19 May 1988 - A letter to the Union After some apparent prodding by the Union in a letter they sent to Dr. Gower, on April 15, 1988, which is not included in the Union evidence in the tabbed manual, Dr. Gower made some attempt to modify some of the comments he made in his earlier formal report to Dr. Kennedy, . under Tab 24. Of special note in this letter of 19 May 1988 is Dr. Gowers statement ("also Mrs. Rhodes and I agreed to stop regular sessions of psychotherapy last September.") This would be, I believe September 1987. Tab 46 - This report to Confederation Life from Dr. Padden-Chartres is admittedly net dealing with the griever as individual but is devoted to finding care for her 3 year old son. These reports referred to above carry often differing analyses comments, ~'andopinions on the grievors condition - from the three doctors involved. Treatment or examination moves from one to the other, with gaps in between references. There does not appear to be a uniform and consistent diagnosis which meets the required definition of Total Disability as recorded above. It should not be surprisîng therefore, that Confederation Life (the insurer) could not find grounds for the approval of the grievors claim, nor could the Joint Insurance Benefits Review committee (Union and Employer) find grounds to recommend the claim, on the basis of 'these reports from July 1986 to July 1988. ~~~ f . " ~ - 4 - Under Tab 79 . we find a report from Dr. J. Jeffries. dated 16 February 1989 This report provides a very detailed and insightful look at the grievor as an individual. In the paragraph on page 5 and continuing over to page 6 of Dr. Jeffries report, we find positive statements relative' to the grievors not being able to perform the duties of her usual occupation as seen at the time of this examination, with an expressed uncertainty as to just when she might be capable in the future. ' with resp~ct, I am less certain of Dr. Jeffries' ability to conclude that this condition, as seen on February 6, 1989, had existed "for some years." From his comments however, I accept that Total Disability within the terms of Reference has been established by his examination of the grievor on February 6, 1989. The determination of Total Disability as a prerequisite to the payment of LTIP benefits is well covered in GSB 1299/89 (Wong) G. Simmons, January 1991. Confederation Life accepted this proof of Total Disability in their letter to the grievor dated 28 February 1990, under Tab 70 of the manual of correspondence provided by the Union. In paragraph two of this letter, Confederation life leaves the door open for payment of LTIP benefits prior to 1 October 1989, if medièal support of total disability and proof of approp~iate treatment is provided by Dr. Kennedy. One can sympathise with the grievor on reading the history of her past life in Dr. Jeffries report of 16 February 1989 under Tab 79. At the same time it should be noted at the foot of page 5 that Dr. Jeffries believes her attitude has had some part in the creation of her problems. From all of the above it is my opinion that total Disability within the meaning of Article 42.2.4, as a pre-requisite for LTIP, was not properly established until 6 February 1989 and Confederation life recognition of this fact was correct. I' -r----, j ;:' r . ;.: . , \ : --< ~\:-<'-l\t::: H. Roberts, Member "