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HomeMy WebLinkAbout1991-2855.Wilson.95-04-13 CNTARIO EMPLOYES DE LA ¢OURONNE CROWN EMPL 0 YEE$ DE L 'ON TA RIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUtTE EfO0, TORONTO, ONTARIO. M~G 1Z8 TELEPHONE/T~L£PHONE: (475; 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG IZ8 FACSIMILE/TELEcoPlg_ ; (416) 326-1396 GSB # 2855/91 OPSEU # 92C021 Onde~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TaB ~R~EV~CE BETWEEN OPSEU (Wilson) Grtevor The Crown in, Right of'Ontario -- ,. (Ministry* of Health) ~. .. .... Employer BEFORE: O. Gray , Vice-Chairperson J. Carruthers Member D. Montrose Member FOR THE J. Monger ' GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE W. Hayter: EMPLOYER Counsel Genest, Murray' DesBrisa~, Lamek Barristers &''Solicitors HE~RIN~ March 22, 1995 DECISION For reasons given in our decision of February 22, 1995, on December 6, 1994, we orally granted the employer's request for an order which required that the grievor submit to a psychiatric examination. On March 22, 1995, we orally granted the employer's application for what amounted to an enlargement of the earlier order. The enlargement requires that the grievor subm/t to psychological testing in aid of that psychiatric examination. This decision confirms that further order and sets out our reasons for making it. Background The nature of the grievance and the issues raised in the proceedings were described in detail in our decision of February 22, 1995. We will not repeat those here, beyond noting that the grievor claims that the employer's treatment of her breached Article 18 of the part/es' collective agreement and caused her mental ham culminating in a depressive episode which prevented her from working . from roughly August 1992 to July 1993, and that she seeks damages covering the loss of vacation credits used to top up her short term disabil- ity benefits during her absence due to the depression she says was caused by the employer, ,the cost of the psychological counseling she received from and after August 1992, and o the shor~ fall between the short term disability benefits and the wages she would have earned had she been able to continue working during the period of her absence due to the depression she says was caused by the employer, as well as damages for mental anguish. For reasons outlined in our decision of February 22, '1995, we earlier con- cluded that· the employer should have the opportunity of an independent Psychi- atric examination of the grievor with respect to the nature and cause of the de- pressive episo(/e which formed the reason for her sick leave from'roughly August 1992 to July 1993. There being no objection to the qualifications or independerme of Dr. Bloom, the psychiatrist proposed by the employer, we accepted_ the em- ployer's request that he be authorized to conduct the examination. At the 'hearing ~f December 6, 1994 at which we ruled that we Would order that the grievor submit to examination by Dr. Bloom, counsel for the employer asked that we also order that she submit to psychglogical testing in such manner and by such psychologists as Dr. Bloom migh{ consider appropriate after he has begun his own examination. Counsel said Dr. Bloom had told him it was possible that he might wish to have the benefit of such testing. We declined to make that additional order at that time, and observed .in our decision of February 22, 1995 that If Dr. ~loom concludes that such-testing is desirable, he will not doubt tell ' employer counsel what tests he thinks should be conducted, and by whom. We ' - would expect employer counsel to rhea disc. uss the matter with union counsel, in an effort to secure agreement. It would only be in the event that the grievor refused to submit to testh~ requested by Dr.. Bl.oom that we would have to return to this issue. Dr. Bloom ~id conclude that psychological testing would assist him in his inqmry. He invited Ms. Wilson to confer with her Counsel about whether to con- sent to such testing. Her conSent was not forthc~ming. As events unfolded between December 6, 1994 and the scheduled con- tinuation date of March 22, 1995, there Was not time either to get a ruling on the psychological testing issue or to get Dr. Bloom's report into the ~mnds of union counsel before March 2 I. The Parties appeared to recognize that any attempt to £LX either side with exclusive responsibility for these timing problems would be unwise in the circumstances. At the conclUSion of Dr.. Bloom's' examination in chief, union counsel asked that the cross-ex~mination'be scheduled for another day, so he could get advice with respect to the report, coUnSel for the employer agreed. The earliest available date for continuation was May 10, 1995. In view of that, the employer asked that we deal with the psychological testing issue. Dr. Bloom testified before us that psychological tests can assist in identi- fying personality disorders, and also that the admin/stration of such tests and the interpretation of their results falls within the exclusive domain of psycholo- gists. He regularly engages the services of forensic psychologists to assist in his forensic psychiatric examinations. He would prefer to do so here. The hypothesis at which he has arrived based on his interviews of the grievor is that some per- sonality disorder was in play. This was onIy a hypothesis, he emphasized, but one which psychological testing might either comqrm or refute. He also acknowl- edged that the results of such tests might do neither, and that the absence of test results did not prevent him from expressing an opinion on the question asked of him. He said, however, that he would be lacking in thoroughness if he did not seek the information that testing could provide. With respect to the way he would have arranged such testing, Dr. Bloom explained that he would normally write a letter of instruction to the psychologist to explain the reason for the referral. He would also make available to the psy- chologist all of the material he had. He would leave it to the psychologist to de- termine what tests to administer. The psychologist would want to interview the subject, having regard to his or her own professional obligations. Dr. Bloom ex- pected that in this .case a psychologist would probably administer an MMPI (Minnesotta Multiphasic Personality Inventory) and an MCMI (Millon Clinical Multiaxial Inventory) why. He thought the psychologist would probably also administer some form of intelligence test, and perhaps Other tests as well. in questioning by union counsel on this issue, it was put to Dr. Bloom that the proposed testing was intrusive. Dr. Bloom replied that by compa.rison with what can be done in medicine and psychiatry, it wasi not at all intrusive. He said he would not expect something untoward to happen to someone taking such tests "unless there was something else going on." We took,it that this "something else" would be something he had not been told of or detected in the grievor. Union counsel did not suggest to Dr. Bloom that there something particular to be con- cerned about in Ms. Wilson's case. Counsel for the union opposed the request that the grievor be ord&red to submit to examination by a psychologist. He argued that such testing was intru- sive. It might not yield useful results, and the absence of test results had not -4- prevented Dr. Bloom from expressing an opinion. What was sbught amoUnted, he I said, to a fishing expedition. He again questioned the employer's motivation. He also argued .that the "fairness" rationale relied upon by emplOyeP counsel earlier v/hen seeking the order that the grievor submit to examination by Dr. Bloom did not apply here because Dr. Wood (the grievor's therapist and expert witness) had not administered or relied on the results of psychological tests in arriving at his opinions. . .. We rejected union counsel's arguments. We had already concluded that - Since the grievor had put her mental condition and the cause df it in issue,' fair- ness required that the employer 'have-the benefit of an independent examination of her mental state. In coming to that conclusion we. said that' We are not comfortable with the notion that an order that a grievor submit to an independent physical or mental examination should only be granted when the arbitrator finds the evidence of experts called by the proposed examinee to be "inadequate or equivocal." Such a test requires the arbitrator to prejudge issues ' which the party applying for the order must necessarily be arguing that the arbitrator cannot fairly'judge until after hearing the result of the requested examination. We are equally uncomfortable, and for the same reason, .with any. suggestion that such an Order should only be granted ff the arbitrator concludes that the resultant evidence is or will become "necessary or desirable." The entitlement to the examination arose from the grievor's having put her men, tal condition in issue, not from the nature or strength of the evidence she had of- , feted in connection with .that.issue.· . The issue for our determination at this stage was the apprc~priate scope of the examination,, having already determined that some examination was appro- '. priate. Like the question of entitlement to an examination, the question of scope should focus on the nature of the issue raised by the grievor, not on the nature of - t.he evidence she chooses to present on that issue. In principle, the methodology chosen by the grievoFs expert to. address the issue should not constrain the ~hoice of methodology of the expert retained by the employer to conduct an inde- pendent examination. The question of psychOlogical testing was raised with us when we made our initial order. We deferred it, preferring to deal with it only if Dr. Bloom foUnd it necessary and the parties could not then agree. Dr. Bloom did conclude that psychological testing would be desirable. The matter was not pursued thereafter in quite the way we anticipated in our decision of February 22, in part due to the problems of timing to which we have averted, but it was pursued nevertheless. The grievor has refused to submit voluntarily, and we have been asked to return to the issue, as we said we would in those circumstances. Dr. Bloom has concluded that thoroughness warrants that he consider the results of tests which he must retain someone else to perform, and has offered a plausible rationale for that view. We have rejected the argument that Dr. Bloom should not be permitted to do what Dr. Wood chose not to do. The other argu- ments raised by union counsel reprised arguments made against the granting of the original order. They then persuaded us only to impose sensible restrictions on the use outside our hearing of the information generated by the examination. They were no more persuasive in this context. We were persuaded that the order made orally on December 6, 1994 and confirmed in our written decision of February 22, 1995 should be enlarged to permit Dr. Bloom to retain a qualified, independent psychologist for the purposes he described, subject to certain restrictions. Having so concluded, we advised the parties of our conclusion on March 22. There was then a discussion about how union counsel could have an opportunity to consider the qualifications and inde- pendence of the psychologist selected by Dr. Bloom and address any concerns in that respect in a timely way. Employer counsel said he would promptly advise union counsel of the identity and qualifications of the psychologist to whom Dr. Bloom proposes to make the referral. Union counsel said he would raise any ob- jection within a few days thereafter. Counsel agreed that as an objection was unlikely, we need not propound in advance procedures for dealing with one. Our formal order follows. We wish to emphasize, however, as we did on March 22, 1995, that the issue on which the now enlarged examination is to be focused is the nature and cause or causes of the depressive episode which formed the reason for the grievor's sick leave from roughly August 1992 to July 1993. Examination into any particular aspect of the grievor's mental state, past or pre- sent, is appropriate only to the extent that its result could arguably bear on that issue. Formal Order We hereby confirm and elaborate on our oral orders of March 22, 1995: 1. The grievor ·shall submit to an interview and tests (oral and/or written) conducted by a qualified and independent psychologist selected by Dr. Hy Bloom for the purpose of assisting Dr. Bloom in finalizing his medical legal report on the nature and cause or causes of the depressive episode which formed the rea- son for the grievor's sick lea,~e from roughly August 1992 to July 1993. The psy- chologist may administer an MMPI (Minnesotta Multiphasic Personality Inven- tory), an MCMI (Millon Clinical Multiaxial Inventory) and any other oral or writ- ten test which the psychologist considers necessary to properly interpret the r4- suits of the MMPI and MCMI tests. 2. Before(the selected psychologist receives any material or enters into the assignment, he/she is. to be' given a copy' of this order.. His/her Proceeding with 'the' assignment and/or considering any material which may be provided in that connection Shall constitute an undertaking by the psychologist to the parties and to this board that informatiOn he/she receives or generates as a result'is to be kept confidential and not communicated except in accordance with this order or further order Of the Grievance Settlement Board. 3. Dr. BloomLmay provide 'the psychologist with such information as he con- siders appropriate in the circumstances, including the clinical notes of Drs. Wood, Broughton and Eisen which were provided to him pursuant to previous orders. 4. The psychologist's report, together with copies' of all of his/her interview notes.and test data, shall be delivered to Dr. Bloom, who shall forthwith provide copies to Mr. Hayter. Mr. Hayter shall forthwith provide copies to Mr. Monger (or as he or the union may direct). In the event Dr. Bloom prepares a supplementary report to Mr. Hayter, a copy is to be provided forthwith to Mr. Monger (or as he or the union may direct). For the purpose of taking the employer's instructions,. Mr. Hayter may discuss the contents of any of the foregoing documents with Ms. Vered Gorewicz. Except with the consent of the union, or upon further order of this Board, a) only the grievor, union counsel, Dr. Bloom, Mr. William J. Hayter and Ms. Vered Gorewicz shall be permitted to review or be told of the con- tents of any report, notes or data prepared gathered by the aforesaid psychologist, and b) no use shall be made of any such report, inotes or data except for pur. poses of these proceedings. Dated at Toronto this 13 day of tprit,1995. ~O~~e~~V ~ray~', ~¥1ce C lr  hers, Member-