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Home My WebLink About1992-2646.Taylor-Baptiste.95-11-23 .~ ,,, ONTARIO EMPLOYES DE LA COURONNE fjJ CROWN EMPLOYEES DE L'ONTARIO '\ ~~~ 1111 GRIEVANCE COMMISSION DE , lYl"~\ & "). . SETTLEMENT REGLEMENT Cl} . BOARD DES GRIEFS ~\ jj ~' " 180 DUNDAS STREET WEST SUITE 2 roo. TORONTO. ONTARIO. MSG lZ8 TfELEPHONEITE:LE:PHONE f416) 326- 1388 180, RUE DUNDAS OUEST BUREAU 2106. TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITELECOPIE f416) 326-1396 GSB # 2646/92 OPSEU # 92~724 .,.., ---~-~ IN THE MATTER OF AN ARBITRATION - '~,' t." A,"-~ JC~\1E ....\ } ~ j\-l-ii> WJ' -.-... , Under \ ' ~'~ t ~3 THf CROWN EMPLOYEES COLLECTIVE BARGAINING ACT \ / r rYEE-~ Before CFW C::"1'L~~ "-N'" GRIEV j!'"',- ~,- I i t::.IJlC I J ~'..J;...-,,--.r- BOARD THE GRIEVANCE SETTLEMENT BOARD EEN OPSEU (Taylor-Baptiste) Grievor ... and - .ii: The Crown in Right of Ontario (Ministry of Correctional services) Employer BEFORE 0 Gray Vice-Chairperson . I Thomson Member M O'Toole Member FOR THE A Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE S Eves EMPLOYER Counsel Hicks, Morley,_Hamilton, Stewart, Storie Barristers & Solicito~s ( HEARING June 2, 1994 October 25, 31, 1994 November 28, 1994 January 24, 1995 April 7, 1995 - -- -- - _i \ .1. t. I f. \0 t J... , .~ ~ , I J , ( )- - t ,. \ ~'- i I -; Ii I \' Decision f r I {' -~ , ,t .,..[ ; ; ~ _l. 'fJ~ , ~ r -; '" ,~} ~ Manann Tay16r-,Bapttste, fotmefly Marlann B<:Ydnar;'-gneves that between Ap'rI12'i', 199"0 and her return to wOl'k 1Ii December'1991 she was'denied benefits to which she claIms she was entitled Under thee Long Term flneome -l?rotection ~ :pl~Jl proYldej for in thecp}le?-tive .agree~ent th~nIn effect between the partIes. . t { At-all material times the Long Term Income Protection ("tTIP") plan was ah insUred plan covere'd bY-;a polIcy i~sued"by'C6hfederatioh-1ife ("the insurer") --- in fa:voUr of thEf employer -Article 42- '1'''ofthe- relevant collective agreement pro- VIded. that the employei' wonIa pay 85%~of the nionthly, premium foil/the Long ,. . 'Term Income Prote'ctloIi -Pla.h." ArtiCles,t27~9'T ariH 27';9;.-2:prbVIded that an em- .- 'pldyee W'hoeOniplained that she had"been .denied benefits pursuant to that plan 'could'submit the'complaintito a Joint lnSurance Benefits-Committee-T'the Joint Committee") ArtIcle 27.93 provided that the employe.e could mt!ke her com- .~- ". - ..,. . J _. _ j plaint the subject of a gnevance if the Joint CommIttee decided against heror -- failed to,decIde within' a specIfied~tIme. '" - ~ I i ~.- {-" in Bhod~$, 866/90 (Dissanayake), the Grievance Settlement Board de- . t -' ";:-1 )~! ..~ !'1 .... _ " l termined that when s~ch a gnevance IS refeqed to ~t for l:\rbItration, it has ju- . " ' r -" ., r. risdIctlOn to determine whether and to what extent the gnevor ~as entItled to the benefit~ claimed, and to award a remedy against the employer In respect of failure to provIde!any benefits to WhICh it fiilds that the :employee is or wasentl- itled. Our jurIsdIction to do that In'th1s:,~se was not q1iestIOned. - ~ ,.. ) .J -. '....~ Facts ~- '\ ~ It -./ .~ Prior Back Problems. J;"!I" The griev~r b~g~n her employment wit~ the MIlliStry as an unclassIfied Correctional Officer ("e'a") .in April 1985 She became a Classified CO several ^ ' months 1ater -She was so emplbyed at Metropohtan Toronto West DetentIOn r ~----- -.... - ( . .' r 2 ) Centre ("MTWDC") when, m mid December 1986, her back was mJured whIle she was breaking up a fight among inmates. She was absent from work receIvmg Workers Compensation benefits until the sprmg of 1987, when she attempted to return to work as a CO She found she could not do so. Whlle off work again, m June 1987 she was involved in an automobIle accident which aggravated her back problem and extended her absence from work. She was rio longer able to work as a CO thereafter In Nove~bet t9~7 she returned to partAlm~ wor~l~t..MrWDC as a rec- ord~ clerk as rehabihtatlve employment. The, records .~J~r.k, 'position became- her ~ full.t~me position Ip,I~lld Januanr 1988 . :.-.r_;i In August or September of 1989 theghevor's bacK paih increased to a level w.hich interfered- with her working asa records cl.erk. She ~as absent from wqrk spor~di~lly i~early ~pte~ber and continuou.j;ly lp l~te Septe~ber and ", early October She returned to work in mid-.October on.a p~rt-time baSIS, pursu- I ant to._ a (iQctor's note-wh!ch, certified that ~h~ could "return to worck :on-~ days for tqe next 3 wee~.': A).tqough ~he e~ectation was that she ;wo~d return to full- tl~~ wor~ at the end of thethte~ week period, the grj.~ror' S cOl}dition worsened. She was _~bs~I).~ from wQrk continuously beginning in ~arly, NQvember, 1989 t 1 Period of Part- Ti.,.e Employ~ent In October 1989 , ,. - When explaining what her thinking had been about 'returning to work in - the period whIch follo~ed, the grievor referred frequently to ~er_ expenence when she returned to work ~n a part-t~e baSIS In October 1989 Tha~ eJg>erience led her to conclude, she said, - that part-time employment of indefinite duration was not feasible where she worked. 't The gnevor testIfied that. oil each day of her. perlOd>of part-time employ- ment in October 1989 a full day's assignment of work was p;~t on her desk. She was told to leave whatever she had not completed on her desk when she left work, that it would be distributed to the other clerks. She saId th~t when she re- turned the followmg morning, however, she often found that left-over work still on her desk, along with another day's assignment of work. She .testified that al- though her supervisor, Ms. Lymon Tobias, had seen the doctor's note saymg she , was to work half days for 3 weeks, during that 3 week period:Ms TobIas asked her repeatedly, "almost daily," to say when she would be resummg full-time - - . 1 I \ I \ 3 work. -Shesard Ms Tobias also made her feel that ,she 'was a -burden on the ot4er J' k~ ;l ~ cler 's t" J .. t .., " i ("~, 1 i '~ , Ms TobJas was OIW of,the emplqy~r's. \VltI}.e,sses, &4e t~stl,fiep ~fter the ~ ~ ~ .'. ~ - gqevor'r4~(;L.she sa,ld tha,t during th~ .l~eriod ill gue~rW~ she, pu~ IlO pr~?sure on the grievor to do more than &h~'could, ,tJ:lat she quI; not. express t.o the gr~evor any . . f. . f)- .; }.-;... frustratIOn a~out hel.' inabilIty to perform her job on a full-time basis. She saId ...., ~ ') ; i she had 11,0 i4~,a. w:tIa.t she~ld to glv~.the gr:ie'{ort.\1e<I~l.?res~ion that she was ex- 'i pect~d to' do -inore 'than 'she could,. She confirmed' that she had-rgiven, the grievor r f .' ,) II her "regular work," that she Instructed her to leave what she could not do on her ~'1; desk ancitnat she told her tHat 'that work would, 'be performed oy the other rec- - - ards ClerkS afte't they completed' ,tlleir -6wnwork asslgiiinent's;: She did not ex- \ 'pressly deny the g'ri~vor's testilnony that she nadasKed' thee gnevot' "almost dally"'wheil she wbulde'l-eturn to full-tIme' \\TorkrShe did not expressly deny the grievor's testimony that work the grievordld not'coinplete bile day w'as'bften still dil 'her desk/the next day along 'with another day~sas'signment"df:work. " f..! ~ (\ Tl!e .t\pplicati9D ~or LrIP 'eDefit~ ,_ - ,-, 'The ~rievor was imtially receivmg short:'term sick"benefits'during the ab- sen~e which began In early Nbvefnber 1989 In january 1990 the' gri~vor applied ,N .~ for'a resumpt'ioii bf LTip bEi'Iieflts. IIi answer'to a question oil the applIcatIOn about how her ihJUry or illness prevented her from wo:i'ltmg, she wrote that "back pain uicreases_ thro'l;!gl).out the day, iIltolerablebYi the eIl;d of the day" J . . . , .' .... ~'The physicIan's statement reqwred iil supportQf the "applIcation was co~pl~t~d o~ J"anl;lary 24, 199Q by ,Dr Denise Cole, a gen_eral practitioner who had beer,., th~ ,g!,Ievor.~ f;:u:nily doctor for several ye~rs, Fllh:p,g ~~.bla.nks In the In- s~el'~s st~ndard. form, .Dr Cole wrote that, thedmgnosls was "low back pain," - . ". ~ that therapy was "physio" ~nd that the resul~~ng l~palrment was that the pa- tient ,could only work half days at a "desk Job [with) moving around frequently" She checked off ''Yes'' beside the questIOn whether the disabIlity prevented the piltient {rom perfoI'l)ling her regular occupation, and "1-3 months" beSIde a gue~tion about when she expected the patient would recover suffiCIently to per- form. t}le duties' of her .regular occupation. ,.. " At the .insurer's request, Dr Cole ccimpleted~ another such form .on March 11, 1990, in wlilckshe described therapy as "phySIO exercise,'and work % days I'" 'c_ - 4 - ()rtly tok~ep mobIle ~nQ. slowly strengtheI). her back." Unde~ "ImpalrIgent" she wrote "may work Y2 days to strengthen back." She agam checked off "Yes" besIde the question whether the dIsabIlity prevented the patient from performmg her regular occupation, bueihu;\ time checked H"3~6' months" h!eside a question about ': .... . _,.. ..... .t ,. ~ when she eXIfected~the patient would recover suffiCIently to'petform the'dutIes of ~ T rl~ . ~- r her regular occupation. 'Under "remarks" she wrote" , j'\)' , She has been. eIlcouraged to work Y2 time to improve her mobility and I -function. She 'has 'd,on-e-thIs and now nobody 'IS -taking responsibilitY. to pay ~ her.becau~e she has not geen wor,kmg ~ull.t,un~ or off ~ontinuously I prefer her to be as mobile as,possible. - J r..; I It is not ~l~ar,;what Dr ;Cole w~s refexpng to in ~he .s~~onqs~J1.tence of those re- .~ m~r}.ts. She cQul,sl .nQtr~I11-ember when~_shetestifi~d" There 18 ,no evidence of the gIJeyor's,b,~ving.-r.~t~nedto worlt part-.tIme after ~he:. ~casion in OctQber 1989 It may ,be that the reference ~as to the effect of the ,g~evo(~ havlng returned on a 'p~q,-time basis in October 19&9 We note that, in 'this stat~~~nt Dr Cole was de- scriping tp.e total4~;;abi1ityas, having comme!:lced "intez:mittently since Aug. 23, 1989" We also note that at around this time there were commumcations be- tween the insurer and the employer about whether this was a recurrent or a new .cl~im and about how the gIi~vor's return_.tQ wprk on a .p~~-time basis in October J ~ ~ _ J989 affected both that,q~estlOn and the date ()~ whicl!.t~~ gnevor would become , eligibleJor LTIP benefits if she W~$, ind.e~~, "~otally d~abled."~e note that it is ~ '-, I. now COlllmon ground that t4~ eligiRllIty ~at.~;was April 27, 1990) ""'" ' "";:j ~. , S i . .: Some time before\May 1990; Dr core arranged for the 'grievor-to visit the _ Toronto Rehabilitation, C~ptre i~ May to see what.it c~)U:ld d.o tQ assist her On AprIl 24~ 1990; the' insurer told the grievor :that It dId not have suffi- cient information -t'o $ake a decision about her claim, arid that 'it had made an appointment for her for May 4, 1990 to visit a doctor It had selected, Dr P S Tepperman, for-a consultative medicarasSessment. ' 1'1 Dr Tepper~an's Report {, "- The grievor attend'ed-on and 'was examined by Dr Tepperman on May 4, 1990, as the Insurer had." asked. Dr Tepperman then w:rote a five 'page report dated May 4, 1990 The report described the grievor's two injUrIeS and their management and course, her presentin~complaints, actiVIties and educatIOnal status H noted th~t the grIevor had ap appqint~ent w.ith t~e Toronto Rehabili- 5 tatlOn Centre the followmg week. There IS a half page account of a physIcal ex a'dl1natlOn, foifowed by these observations ~ , ~ I :1 " IMPRESSION ,. I Ms. Bodnar corthnues to ~u'ff~r liow back dIscomfort as a 'result of a lumbosacral myofascial strain sustained 10 each ~(i s~parate mJurIes ., i, desc~i,bed:above g ~t \ ri -. REC6MMENDATlbNS t J ~~r~ " " . ' 'I 1 AdditIOnal symptomatic treatment mIght include a tru~lof TENS to determine the potential value of a umt for person,al use, relaxation therapy, ma~_~~ge":th~,raIi~ pr f!. :th~l '?f acupunct4re. :.. · . . ..... ' ~ -- , 2: In-,view pC_,the dupation oLher,dIscomfort and. the. deg,ree of disability .resultmg"froffi'lt,. she 'should undergo a formalbehavl()uraJ, asse.ssment to assess her copmg :skills and, to ,determiner,If she might be' 'a canchdate for b~.lvwi~~:ra~ mpwn~f!.~lOn treatrpent. Th,is ~ay, be a'{~il~b\e. 'ilt The Toronto Rehabilitation C~htre. Ifriot, I ~9uld'be pleas~d to arrange ~~i1s through our centre. ,f.' 3. ;it'pre-vocational:evaluatlOn should be obtamed to asslSt._her.:,m defining ~,. ~ her vocatIonal options. Certamly, her diploma m cQmll,lun.it:y~studies should be valuable to her in seeking appropriate employment.~ ThlsJassessment '" mlgh.t ,also be available at The Toronto Rehabilitation Centre. Agam, If it is noi;~f ~oiil9.tbe pleased to arrange IBhrough' our centre. c - , PROGNOSIS "" " L ::;It is Jriilkely that Bodnar will ever'return to her workas':a correction officer ~ilong ~~.she has .Palfi, which might ~e indefmite, she could not be expected to functIOn safely 10 this e~vITonnient lfi the event of an arter~atIOn. ' 'f'r"" .....~ .....,. ...... "'-1: . Ms'.'Boanar should be capable of returnillg to work that avoids heavy liftmg - (mpre tl't~, 1 Q lb!?,) a~d J,'epet;1tive. b~nding, lift~g or L t~~ting ~~tIvitles. Her work as a record Clerk seems to meet these liillltations except f6rthe need for prqlbhged sitting at a'-,d~sk and computer .termmal: She reqUITes the ,~,. opporttlnity...tC1. b.e up, anp about ~t least on an hourly basIS to t:eduGe the stress to her back created by prolonged sitting. If she does not intend to return to)modified work with her present employer, ., she should also seek work that would allow' her~ the opportumty to avoid - prqlonged sitt4Ig by providIng_ the opportuQ~ty,for per~od1c breaks. As 'iildiC'ated above, "she should De able to take advantage of her diploma in commuI1ity studIes m:seekmg appropriate employment. ,Please do not hesItate to contact me if-you have any-questIOns:-. The,employer:, dl(j not call Dr 'fepperman to amplify qn h1~ report or to comment on its consiste:p.cy with what happened afterwards. The uruon did not msist that he be c~ll~q to becross-examme~ op the contents of the report" wruch It agreed \Y~ co~4 receive, into evidence in. like manner as ~,court might recei:ve a medical rF~P9rt into evidence;pursuant to the Emdence Act \ - 6 - L TIP Claim Denied ) The msurer then wrote th,IS letter of Mpy 24, 19~0 to the ~ri~vor, ~ denymg her application for L Tip benefits I '1_ We have now completed our reVIew of your clapn for Lon~ T~rm Income Protection ,benefits, I . I In order to be elIgible for LTIP benefits, you mustber wholly and continuously dIsabled by illness or injury which woul~prevent you from performing any and every duty of your normal occupatiort- as a Records Clerk. In his reporto(May 4, 1990, Dr Tepperm~ state"'s -y~u could ,perform the dutIes oCa record clerk, as long as you are able to get up and move about at least once per' hour Dr Tepperman'sfindings. in 'conjunction with medical documentatIon from Dr Cole, ,do not support a state of total continuous dIsability Therefore', your chum has 'been declined: Sho~ld there. be other qbjectIve fmdings of ~hlCn wf ar~-' unaware, we would be willing to review the claim on receipt of the same. '.t ., The letter' did not refer to the recommendations in Dr Tepperman's report, nor ,did it end()s~ a 'CoPy of the r~PQrt. ' ,,-, By the time she :received this letter, t4e gnev.or. ~d be~,n inteI'Vlewed at the Toronto Rehabihtation Centre ("the TRC") , which ~d arranged for her to com:qlence a Pain MaIlageme~t course from June 13 to early August, 1990, fol- lowed by a 4 to 6 week ~rogram of PrevocatioIial Assessment. At the gnevor's re- quest, the T;RC wrote to the insurer to confirm those arrangements .r::' . , ...... J ' .. . Notes ma~re 6n, June 6, 1990 by the cl,l;lims re~ewer !1andling thIs claim - ...... ... . (who did not testIfy) mdicate that having learned ,of the a~angements WIth TRC ('. ::-,' ..,'..... she contemplated sending a copy oJ Dr. Tepperi~.an'srepo~ to Dr Cole and ask- ing her why th~ grievor needeq to attend the T;RC This seems odd, since the ar- .- rangement for the grievor'to attend the TRC appears consistent,wIth the recom- menq.atlOns in Dr 'Tepperman'$ report. In any event, the questibn was n,ot asked of Dr Cole. The Insurer-simply wrote to Dr Cole enclosmg the report, invited her to comment on it and told her that the grievor's claim had been denied. The insurer also wrote to the grievor on June 12, 1990,~ to saY'that her ac- ceptance into the TRC' program did' not alter its deCISIon to deny her:cclaim. It saId it was prepared to give "further consideration" to the claim on the basis of "medical documentation from Dr Khman and/or another speCIalist." Dr Khman IS an orthopedic specialist who had treated the grievor following her .motor vehi- 7 - ---- \' . - . i , de accident m 1987 ThIS letter to 'the grIevor noted that a copy of .'. '", ) Dr Tepp~rm~n's report had' been sent to D'r Cole f f< _ r' ""i;-.l 'Dr Coletdld not offer" the 'lnsl,lrer any coi>>m.ents, ,on Dr Tepperman's, re- port. When the' gnevor'lat~ra~ked her for a copy ,at It" D~ ,Cqle Wpuld not gIve '. ,her one because she Jelt'prQfessIOnally C9nst:r:ll!lle<;l from.,domg $0. SQ~ told the .J 'griev6r.to ask the insurervfor a .copy: Th~ gziev.or theIJ.:,wrpte tp the insurer, who by letter 'dated July:24,_1990 declmed ,to gIve'h~r a, copy, ,saymg, that Dr Cole had a copy and suggesting that the grIevor conta,ct,-her ,to ~'d~sq~~ the'~pntents of t:p.e report." The grievor ~estified that she also trIed unsuccessfully to get a copy e..'LI L!. l 1 _~ l. to........... from Dr Tepperman's {)ffice. 0~ -: ..... _\. II- f1 The Meeting of June 27, 1990"~' , ... .. " c ~ -p , , The~ ins\lrer ggpied the employer with its letter of May 24, -1990 to the ~ 0: ,/;, ...... ,I r-J~- f i. . gtievor denying her claIm. The contents of the letter came to the attention of Ron .. j Brett, who-was and is.,the Offi'ce Mana:ger 'at MTWDC; -the. person to whom the 'g'rievor's superviSor -i:'eporteCl. He. <wrote to- the griever' as follows ~ori June 12, 1990" ,- - -.- ~ .~ On'May 24; 1990 Confede'ratIon'Lue wrote'yolt mdIcatmg ihatyourclalffi for - Long Term Income::ProtectlOn benefits had been deIJ.i~g, Th~ letter s~ates that yourm,e<li;cal ~~u~entatIbn does not support a state of total contmuous disability' . - ,.; r , I When I spoke to you fbn 'Thursday, June'7, '1990 'to mltiate fa meetmg WIth our Regional Personnel Administtlltor you' .e~pIa.1Iied th~t>y,ou had el!:rolled m a Pam ~anageIn_entcourse at the Toron~ RehabilitatIon Centre and that you were appeahng the ConfederatIon Life decision. ~ - I called the msiirance ca'triet on. Fnday, Julie 8, 1990 a&d was told that they had no further information. Therefore, I am requesting that you contact-the underSIgned as soon as possible so that a meetmg date can be set to dIscuss your,return to work. Failure to do so willl.>.~ ll1terpreted. as .an aqandonment of your position, .. , I " The grievor did contact Mr Brett, and a meetmg was ~rranged for June 27, .1990 The. gnevor attended the meetmg WIth her UnIon repre~~ntatIve, Paulme Sevi.lle. Mr Brett attended with Mary Capobianco, an Area Perspnnel. Adminis- trator with the then Ml;nIstry of CorrectIOnal ServIce~. The griever testified, that she went to the meeting"douDtful that she could return to "the records clerk Job successfully at that tIme, even on a part-time ba- sis, because of the limIted opportunity that the Job gave her to 'get up and move ! -- , ! , \ 8 - \ aroung. durmg the course of the work. She was willIng to try a return to work part-time, but could not then say when, If ever, she would be able to return to : ... i -.. i- work on a full-tIme baSIS. She had moved to Brampton followmg her marriage In ~ May 1990 (as the employer knew) .and had -apphed to another Mmistry for a permanent part-time positIOn in the Re'gistry ,Office: iJ1. Brampton. She was then " awaIting the reswt of that comPEftitiop,(whIch:she later learned was unfavour- able) The Job interested'her'because.It:was:closer to her home and mvolvedmore walking around tM.'n the, records derk',position:Either :she. or Ms. Seville men. tioned that a,pp~icatIon'at the meeting ! ~. '\. -- "" - - \ 'j In cross-examination, employer counsei pu~ It to thegnevor th,at at thIS -. "'\ .,... ~ - meeting she had asked that a part-time position, be arranged for her at the Brampton Correctional Centre The grievor'.de~ed th-j~. 'She Illaintai~ed her de- nial when employer ~ounsel told her that Mr Brett would testify that she had , mad~ such a request. We note that he did not later'testify to that effect. ...J>- ~ 1- -The.grievor. testified that dU(lng t-b~,me~ting:..Ms. Seville r~ised' the ques- tion whether the'griev.or could return"to workpn a part-tipte bas~. There was a dIscussion about whether the gnevor could give a date as of whicp.!she could re- turn full-time. Sh~said she, could not. She told them about the attendances she ,-' . ,~ _. ~ ';- "1' , ) would be makIng at TRC ,over the ensuing 'months. She' testified that Mr Brett. ., stated that the Job was not a part-time job and' that tl).~re w~s no prospect of part-time work in the~,circum~tances. She sl;iid that 1\1s. C~P9bianco had noted , 1 that she Was not eligible for the;assIstance of a rehabIhtation counselor because he~ claim forL TIP had not peen approved. She al~o ~l'J;id that there was no offer of p'art~time erp,ployme,nt at this meetin~, nor at ,arry ~oth~r tim~ before November 1991. '. L It was put tp the grievor in cross-exammation that she had not raIsed the Li. .; possibility of part-time work and had SImply taken the positIOn that she could not return to work at all, and that Ms Capobianco would testIfy to that effect. Ms. Capobianco did testify to that effect, after stating fhafher recollectIon of the meetmg was vague and that she had to -rely OIi' notes she made at the time The notes are brIef. They include the words !'Ron requested mediCal certificate", then "Dr Cole suggests part-time" and, farther down the p~~e, "M~rion says she can't come back." Thereafter, the notes record suggestIqns Ms. Capobianco says she made to the gr~ev()r concerning obtalmng and providmg the employer WIth doc- I \ 9 - I tor's certificates regardmg her status, purs~mg her appeal oCthe demal 9f bene- j.; -... }_' 1. ~-:.. ., t ,. ~ ~. (its and provuj;mg the msurer WIth "medical mfo" . '. J~" j l;t,.r' ff'~ Regardmg her note of the gflevor's saymg she could not come back, , . ' l~, ~ .!~ Ms. Capobianco said she understood that to mean that she could not come back eIther full;tiine or part-tlIpe The Ml~llstry w~s. cap~ble. o{ ret~rmng the gflevor to workwIth.restf1ctIons\otpart-tlII:1~ "on a, trIal ba$is," ,spe'~3;~(t but Jiici not pur- 'sue :those, optlOns"because the;gri~vor "IPsIsted" thl;it she could pot r.eturn at all. Asked whether thexe"had been'3;\,dIscussion ofp~rt_-t.i!Ile.-worlt,fs~e saic.l she could not remember the exact discussIOn, but. r~memQ~r~d, talking' :;tb9ut work harden- ing and the fl;ict that they could look for alternative employment If the gnevor's L TIP claim 'w~~\ app~oved". \(.. ., , .t'"j'f '" r "";~. t ,~ " When M:t: Brett testIfied, :hes;ud that: notbih~ ,pxevent~d the ,g.flevor from returilingrt.o work part-j;i:m~'94:a't~.ri~1 b~sis "f!S l.o!lg'~~ ther~ W3,~ a prognosis for ~ < full employment at the eQd/' lncr,oss-examinatlOn:h~. ,elaborated, th~t he would .have been 100klBgvfor a.;;doctor'sr certifi~te that t4~ grievo~\;yv~s expected to re- .turn t.o.full-time,'w.ork:after worJ.qng,pa.rt-time for "a dJ.lI'ational~p~riod" as he put _r 'It. He \acknowledg~d(thattllere wasc~ d,iscussion .ab()utJh~ fact- that.-the records . , , - clerk-loh-as;aJull-tIme job H;e st.llted it W~s ros Impl'essionthat.the gnevor was (, 100lnng .for 'so~ethi:ng ttp~rIIlan~nt~p~rt-ti.plE(a:Q.d that h~; was' agaInst makmg the rec.ords:.j:~l~rkpo$itj()~ p~.rma.!l~,Bt part~time. because it was' 3,. full-time POSI- tIon. He'acknowledgedthat the'~mployer di<tnot .offer the,gnevor,part-time work on this occasion, and that the only offers ,.of part-time work that the employer ...... .- ever made to her wet,~ those which led to h,er return to worlt 0]1 a part-time baSIS .for perio<;l$ of two, or three w~~k.s 1I~' OctQber 1~89 and in November or December ~t _ '~j ( 1991 l ~W ( One of the employer's requests at the meeting of Julie 27, 1990 was that thegnevor proVlde a doctor's note concermng her statUs. In May 1990 the gnevor had ,begun seemg Dr Blaclr, a famIly practItIOi1~r m-Br~mpton whose of- fice was consIderably closer to ~~r h.ome than Dr Cole's. She VISIted Dr Black on July 12, 1990, obtained a note saymg she ha,d been e~~mined and "adVlsed that she should stay off work for medIcal reasons u~til further notice", and delivered the note to the ,employer Tn late September or ~arlyOctober she dehvered to the \ employer another note from Dr Black dateq Septe~ber 2~, 1990 saymg that she "should stay off w.ork until further notice" The gnevor'testified WIthout contra- \ 10 - dIctIOn that after she delIvered that note the employer dId not aga10 ask for a docto~'s note or other explanation of h~r cont1Ouing absence, nor dId It make any , I 1, further suggestIOn that it might treat her as having abandoned her posItion. '> , I Treatment and Evaluation at the Toronto Rehabilitation Centre ". . . , .. . ~ ~ .... ,{ .t r ; .' Thegrievor attended. pain 'management' sessIons at TRC:two afternoons a week from mid June untll early Aug,ust,-when she. beganattendmg for a pre- vocational assessment. When asked' m 'cross-examinatIon, .she -testified that it was a 30 to 45 minute drIve from her home to TRC,and that TMWDC was 15 to \ 20' minutes' drive from her home. 0< i , The grievor began attending pre-vocational assessment program at the TRG three days per week. She spent two to three hours per day 10 'a simulated work environment,. workmg at acomvuter work 'station as 'well as performmg filing anct other clerical actiVIties. Paftofthe day \vas,also spent in recreational aCtivities. 'The 'object of the pre-vocational assessment program was to see if the grievor's condition could be improved: to a level at which she -could work 5 full days 'per week, so that she. could participate in a pre~voCationalprogram which would 'have involved full-time attendance '5 days per week for two weeks. When her stamina had not improved appreCiably by the end of September, the occupa- '- tional therapIst in charge of her assessment concluded that she could not tolerate or profit from the fUll-time pre-vocatlOli.a1 program. She was dIscharged from the TRC; ,and this report of October 4, 1990 was forwarded to Dr Cole and Dr Black: ~ -: ,... Final Summary .- . y" - The above named attended the Centre 3 days a week. 6ccup ATIONAL THERAPY' Mrs. Bbdnar took part m a serIes of group discussions designed to help control her pain, using cogmtIve and relaxatlon techniques. This was followed by a work hardenmg program m occupational therapy where she attended 3 full days ,per week. Mrs. Bo~ar has been unable to upgrade her sittmg tolerance and is presently only able to SIt for 15-20 mmute penods at a gIVen tIme before onset of back pain. Walkmg helps to reduce the pam, but by no means alleviates it, She can walk 1/2 mile m 10-15 mmutes" and stand 19-20 , . mmutes before extreme dIscomfort, Prolonged driv~g, espeCIally in heavy traffic, also aggravates pam, Mrs, Bodnar has been instructed' on correct posItionmg for various desk top actiVItIes, whIch she lffiplements well. Since her Job involves 90% sitting, it does not seem reahstic for her to return to her former employment, even on a part-time basis. Her present tolerance is also too low for our full time prevocational evaluation program, r \ I - 11 ~ Mrs, :Bodnar has.,been referred'to Employee Counselling SetvIc~s, MIillstry , of Governmen,t S~fVIC~S. She, has also been advlse4 thflt a pnwocatlOnaJ f ," evaluatIOn could'be arf~nged at'a future date~ should her t61eran'ce lffiprove :'T _ \ . " f ;.. . ~ ~ PHYSICALTHERAPY M~s, Bodnar Worked on genebil mobilIty exertIses in the heated therapeutIc pooL:,ghelwas able to, do these' gentle, exercises quite weiland WIthout complamts, However, she contmuesto experience low back arid' ~eft leg pain' whIc,h.'has not decreased 10 mtensIty since she started therapy "'/' ~ ..... .... ," . ':\' - " ... ,'~ ~.' _ . ~.. f"' ~. ~ '.sue'to Mrs: Bodnar's inability to tolerate 6:fbenefit'from the program, we :~re planning to dI~chaJ;g,e,he:r:r,{ I ~ " r n . roo '} ..r..c- J J,\.. i In Attgust 1990, ,theL UfP9~" lfaq. ob.ta.l,ned..a, let~~r of August}, 1990, from Dr Col~ which began with the observatIOn that "Ms. Bodnar has been advised that she rp.ay r~t.~ to full time employm~nt l:l:~~ that she m~t aVOId prolonged sIttmg 'and shotlld get' up and. move around for about.:5 mmtitesevery hour" The t, ~ letter went on. to suggestre~triCti9ns 'on th~-dut~es -r~(~rre~ to 10 a physical de- mands analYSIS with which ~,he had-been p:?vided. Fo!lowing the TRC report the unio~ Qb,tained ~ furthet-Iet~er-from pr e,oie.d~t~d Novel.llber ~4, 1990 In It, the (doctor said she had seen the grIevor' at some lime' during ~heroccupational ther- . ., ft. ~py at TRQ, at whi~4 t~"me she compl~ined ,of pail) ra~~atlI1;glI;lto her left leg. She mentioned (but did not enclose) the TRC's report and' ~oted its findmg that It was UnrealIstIc for the ghevor to retUrn t6hel,' job, even part-time. She also noted I ., . ~ t ... 1 that t4~ gIfevorhad been s~en 1;>y Dr ca;mpbeU in. the rehal;>ilitatlOn department at the Wellesley Hospital on AugUst '29, 1990 The union 'obtained a copy of the TRC report and sent ~opies of it and of Dr Cole's letter of Nove.mber 14; 1990 to the insurer y.~der cover' of a l~tter ofDeceD;1berr4, 19:90, p.oting that the grievor had appealed the denIal of benefits and requesti~g that it revie'w its file , . Insurer'~ ~eaction To TRC Report" ~~ Upon receIpt of the ,uniOfrS letter .of December 4, 1990. and enclosures, the insurance company employee handlhig t~~ file' wrote as foilow$ to the insurer's i~terna\ Pl:IysI~lan, Dr Stork: At thIS pomt I feel we should ask the union to supply a rep'ort from [Dr Campbell] prIor to makmg a further deCISion, although it looks like we will be approvmg/ Will you review agam,.please, & comment/advIse? Dr Stork replied. TRC assessment certainly supports her as totally disabled when assessed, I would agree you need somethmg from an M.D, in thIS case Dr Doreen Campbell (will discuss WIth you) \ :. - 12)- ) On December 18, 1990, the msurer wrote to theunioh, 'acknowledgmg "the addi- ~ tlOmil medical that was with your i~tter Decemb~t 4i, l~~b'" a~<,i saY10g that "In order for us t? r~l).c\er a Justifiable decI~lOn, we \Vo~ld appreciate If you would .I.r-.... " \ provIde,us'wIth.:'a complete,report,from Dr ca~pbell." i Dr Campbell's R,eports j ~ ; The grIevor b~came, a~,~ref of Dr Campbell while, att~ndi;ng at the TRC, as a result of a conversation wIth another patient there,.'8he saw;:Dr Campbell m late August 1990 at an outpatient clinic at the Wellesley Hospital. As a result, 1 .... , I . . 1. . . , - ~ Dr Campbell wrote this clinica'l-notedated August 29, 1990 ~.- f' < This patient presents with chronic low back pain and lelt thigh pain. Her L symptoms began four years ago in December 1986. According to the patient, c .1~ she. was mj,ured at work. At the time ,sh~ was a corre~~i(malofficer ,and injured h~r back breaking up a fight, She was off' work and covered by a . Compensation claim from December .until June 1989: At that time she had a -" car accident, a side-on c9llision, and was unable to work b.ecause of increasing back pain. Sl1e attended the Back Institute in fail 1987 and had ,- three months 'of exercise therapy which improved' the pain inlier left thigh J ~. and back.. She returned to work as. a records clerk but was unable. to work ! ~ . . ," . '-. - . after October 1989 because she found that prolonged sittiqg caused back I pain and her job did not allow.'. her -to get up and- walk aro~nd periodIcally -1 during..the ,~ay . ~ , She was sent ~y her fam,ily doctor to the Toronto Rehab Ce"tre where she " - r-~" was placed m a pam management group for several months and more ~, recently in an occupational therapy group. Mrs, BOMar foun3 that drivmg ~ " one and a half hours there .and back from Bradford to .the Toronto Rehab Centre 'plus her oc~upationai therapy sessions wa~ making her back pain " worse. When I assessed her in the clinic today her lower baCK' was very stiff. She " was ~nable to benclto touch, h~r toes',and could only: bend. about 20 degrees before developing low back pain. Extension of the lumba! spine also produced pain and lateral bending to the right side but not ht.e [sic) left side. There was tIghtness m the left hamstrmg muscles whlch were lImIted to straight leg elevatIon to 70 degrees on the left slde, There was some - resiStance on'abduction and flexion.of the left 'hip Otperwiseexamination of I" the,hlps and lo:we.r extremities was normal. This .lady wa~ aJ)I~ to do a stage '2 situp without any difficulty , ~ 0- X !ays of the lumbar spine show an mcreased lumbosacral curve and slight . narrowing of the L5-S1 dIsc ~pace, I have requested a CAT scan of the lumbar spine, I will'reassess thIS p~tIent when the uivestigatlOns have been .completed, , I \ - 13 - I' Hi? It-ap'I>ears that 'D~Bam'PQell saw the gl'1evor again'l11 October or early Novem , :r L ~ H' ~ .,.! ~f ~ t ber ~nd the,n wrote thIS letter of November 9, 1990 to Dr BI~ck: I wouJd'hke 'you to know the 'results of the 'mvestIgatIons:on-YOlmpatIent, X rays of lumbar spme show mIld narrowmg of the lower, lumbar ,dIsk space compiltib.le WI~~, ag~ CAT scan .9(. the lumbar spine is qQrmaL I am en~o'!ragmg;Maflan 'to contll~ue wIth' back str,~l1;gt~l'l~'mg e~ercIse~ and have , given her .some exerc~es to strengt}'u'ln her ,pack, I .con"sIeler her to be ,suffer~g. frorp -p1yofa!'~i~l,pa~qf qr re~Honal ,pam syndrome aff~~t41~ her lower .b~ck, secon.darx tp an~mJWY I (thlI~~ she m~st be enc9uraged fu do more activItI~s andgra!:\ually r~tup~ to work. _. . , Tfiis is to:keep you informed. of your patierit's'vIsit:: " i Dr. P aIllpb ell di9. I;lot testify Th,e part~.es agree~t. tlpit w~ coul~ r,eceive these two notes mto 'evidence m hke m~nner as a court mIght receive a ,medical report mto eYlC~,en~ pursu~,l1t to the EVLde[!-ce Act It appears from the insurer's file that in response to the insurer's request of Decembef 18, 1990, the UnIon sent the insurer sometmng fJ:om'Dr Campbell. It IS not clear what was sent, other than that it was not the 'note~of August 29, 1990 and th~t the insurer did not consider, it satisfactory By telephone and by letter dated January 29, 1991, the insurer as~ed.theumon to obtain and provide '" "Dr Campbell's'conSultation notes.;' ~.: On September 18, 1991,:-the umonf~eq tothemsurer a letter of August 6, 1991 and enclosures from theWelle,sley Hospita~ to the ~I),iO:{l. The hospItal's let- ter,states that it is i:q. resp9~e toth~ union's requests of J~nuary 29 and May 6, ....; , ".; J991, an9. apologizes for the delay m y;espondmg It encloses various documents .' .... from the hospItal's Health Records Department, including Dr Campbell's note of August 29, 1990 and letter of November 9, 1990, as well as X-ray and CAT scan , -reports. The partIes, agree that the union made the requests referred to in the -", ~ hospital's letter and that it' recEHvedthe' hospitaTs response in August J1990 -' Dr Black's Report of September 23, 1991 In the meantIme, the UnIon had requested a report from Dr Black and, on September 30, 1991, faxed to themsurer a letter from Dr Black dated Septem- ber 23, 1991 In It, Dr Black noted that thegrIevor had been attending her smce May 1990 After referrmg to the gi'Ievor's ,hIstory' prior to October 1990, Dr Black noted that. / .~ - 14 - In October, ]990, Mrs. Taylor Baptiste became pregnant and was attending 8,nothe~ doctor for ~E}r oqstetncal care, so I only saw ,~er once, 011 tv1.ay.29th, 1991, for follow up of her back paul whIch was slIghtly worse due to the pregnancy ; , ,., j:.- , j ,In May; 1991, (sIc]-she also saw a speCIalIst; Dr TeppermaI).'" fori assessment, but I do not,have hIS:report. f . The sItuah'oh at.p'resEmt Is,that the patient is totally unable1to return to her original job as a' Correctional Officer and she cannot return 'to work as a RecordsClerl{~ because she is not allowed to unless there are rio medical , restrictions, The medical r~strictions at present"are: rio'sitting for longer than fIfteen to twenty mlIiutes and no standmg ih one position for more than fIfteen to twenty mmutes at anyone trme. She wo\ild require~a Job that allowed her to sit--for" short periods of time only ,aqd b~ able t~ get up and walk around as often as necessary Mrs. Taylor Baptiste is more than willmg to 'attend any retraining or rehabilitatIOn program which would'.allow her to work w!thin ,tb,e~e medical restrIctions. I do not feel that there will be any rmprovement m her back condition, as it has already been five years and" she has tried all the treatment options. ~ '::. - In Nove~ber 1991 the employer was gi~en t~,note of November 23, 1991 from .Dr Black: '- ':; 'Re'Mariann,Taylor.-Baptiste' , This patient' has been':off-work for medical reasons and'Ip.ay return ,to work on Dec. 16th 19914 hrs per day, with the follovvingrestn<;tions,- Ability to stand and walk around at patIent's dIscretIon. No long period' of standmg or sitting. These should ~ontinue for 2.3'weeks. i Dr Black did not testify The parties agreed~ that we could receIve these two notes into eVIdence m like manner as a court mIght receIve a medIcal report mto eVIdence pursuant to the EvuJence Act. , The gnevor'dId return to her records clerk po.~itiop. on a part-tiIIle basIS m I December 1991 and6n 'a full-thne baSIS on the first working day m January 1992, as anticipated by Dr Black's note of November 23, 1991 Disposi~ion of the Appeal I After Its letter to.the union of January 29, 1991, the Insurer made no fur- ther requests for information. It is not clear how it responded to the materIal faxed to it by the union on September 18, 1991, other than that it dId not alter its pOSItion that benefits would not be paId. / 15 - \. ~ .r.(I, ~ ~ . . '...-.:. t r~ . ~ On Febru'9.ry 10, 1993 a benefits .advIsor at Management Board Secretar- t'! , -I . t ;~ r . Iat advised tlie grIevor as follows ~ \.. :~",", J_;: &) t - i 1 i t ;~;. i The J~pmt lnsu,rance BeI1efi~s R,evIew CommItt~~ at !~~,!l.l_~etip'g of~eptember 14, 1992 dechiied-yol!r appeal agaInst the cessatIon Of 'your LTIP benefits, - Unfortunately, due~.to an oVersight you were not mfotll)ed of this,aecIslOiL Your MmIstry Gonfirmed that you could have'retur.ned, tOl work on a, part tune basis. The CommIttee consIders that it would be 10 your, mterest to pursue thIS matter wIth you.r-MmIstry, ~,,-' ',j We regret we could not respond more favourably :t. .. 1 ")~. Y' J ... -Dr ,Cole's-=-Testimony. About Hei"Reports L :, '- q .f 1 '1 ";~, tt ~"11 ...!.}-~-:r Dr Cole '-graduated from Memorial Umversity MedIcal School in 1~81 She ~interned in S't: John's for a yea,r-aricl' at SICk Ch1ldreri~s HospItal m Toronto for a .year She wasp licensed- to ,pfactIcef'lArOntarlO in 1983 She opened her Toronto prac#ce In October 1983. " ~ ,.. . . 'l ! \} if r'~ { ~ She -testified that m 199(f the grievor had more baGk p~Ip" t.haI}, any other patIent she had treated up to that pomt. At that time she believed that the grIeVOr -needed encourageinent with respect to i'etu.rilihg to Work and otherwIse dealing- wltE 'liei' paIn. She said that when you<jilst see someone m thee.'office, you .do not have, an obJectIve' assessment dfwhat th'ey can do' Accordmgly: 'she would !.put a -lot..of relIance on'a report lIke the TRG repOrt, ;ev~ri though W:reflects the ,.> observations of a physiotheralhst'rather than aphys'ician. She festIfied that the .. (,] report was~consIsteIit wIth theC6Ii1pla-ints-tBe .gnevor had inade to her about her dIfficUlty carrying on work. ! -.. ,,-- Dr CoJe a9lmowledged haVIp,g writt~If m J'aI?-uary 1990 th~t the grIevor \ . - . . - ' would b~ able to return full-tI~~ pl.one tQ thre~ mp~tbs after a tnal of part-bme J :. _J _. . " work. S,he testified th~t pl fact sJ;1,e~4~d ?9t be~n" sUre that the ~pevor would be ,~ able to, (10 that, b\l.~ _~ave- thJ~t ~$tlim.aJ~ beGa~e an ~stm~at~ was ~sked for She observed that such matters were dIfficult to predict, and that she. knew she could ., . "" . ..,.- . - j -- - '.' -' .(" -, , i'e-exaIIune the patient b~fore there _ wa~ any r~turn to. wor:k. Wpen asked whether the one month estimate hadJ>eeIl "based OIl anything," Dr Cole replIed that she was hop1Og to remobIlIze the grIevor back to work. I At an earlIer po1Ot in her cross-exam1OatlOn, Dr Cole was challenged to say whether she had any reason to doubt the assessment she had made m Janu- ary 1990 She replIed that whIle she dId not have any reason to doubt her physi- - " \ - 16 cal findmgs, she dId have reason to doubt her assessment of the grIevor's abIhty ~ J .. . to return to work. She commented that she was "young 10 practIce" when she \ . i ..... made that assessment, that pam IS nota measurable commodIty and that the TRC report show~d tna,t the\ gr,I~Y2r co~JdJ nqt llayeret\ll.Jed ~o work. She said . . that.when she got the' report she felt guilty about hav.mg'pushed the grIevor so hard to get back to work. ! ;f 1 1 ! It_ f ] r " ) , _I I I I Yvonne Ebbers' Testimony About the TRCReport ') \ i I Ms. Yvonne Ebbers is the occupational therapist who worked with the grievor during her pre-vocational'l;isse'ssment at,the TRG She,,:wrote ,the portion I \. I of the TRc report concermng that assessment and- the grievor's abilIty to work. ~ '! T .. , Ms. Ebbers- .0btaJned l}.er~ gIploma in QC9upatIQxwl IT'herapy at Trimty College, Dublin.in 1984. .sh~ wor,k~d.:~s a,n occupationalt}:lerapIst m England at the Chichester Hospital, the London W olfsorr Rehl;ibIbtat,i,on Centre and the Royal Hospital in London. Her employment at the TRC began when she arrived In Canada in 1988. , ~" "'} .~ .. , . " t w. .-' - '~ Ms. -Ebbers ,te~tifjed that ,~h.e was asked to evaluate t.he griev9r for suit- ability for.a pre-v.ocation.a1 program :involv41g at~endance 5 full. dl;iYS per 'week .J ,over a two wee~perIod. She plaGed the grievor in. ,a work E!imulatlon and ob- 3.,serveq.her t91~rance Jor, sitting in particular, as well as. for st~ndmg a,nd walkmg ~h.e watched thegrievor sittipg-at a,-des~ and tlmtd heractIvIt,ies. She responded, to the gfievor's discQmfort; by v~rying h~r po~ture, posltipn and seatmg, trying different chairs, varying the heIght of the desk and so on. The E!I~ulation was .of clerical work. She had a brief description of her work from thegrievor, but not a \ '\ detailed physical demands analysis. When the gnevor started~ she was attendmg 1- - three days per week. They were trying' to build up to5 days per week but never achieved that. Ms Ebbers testified tnat the grievor did not have sufficient, toler- , . --,or ance, due to the pain she was experiencmg She said that the gnevor's behaviour had the consistency assocIated WIth a genuine experIence of pam. In her opImon, that pam prevented the ~tIevor from returnmg to either full-tune or part-time work at the tIme she observed her , " .; ( 17 - ,( , vi Dawn Elaschuk's Testimony I ,-' ' , .L b I,n addItlO~ tOr Ms Capobu~nco, Ms. T?,bIasc. ~l~d ~r Brett~ t9 whose test!- ,. f, mpny we, h\ave alr~a~yrefe~re,d" th~~ emptoye,r ~a]~ed Dawn El~schuk as a WIt- nes~ Ms Elasch':1k was. employ~d py Qo~feder~~!on:r,.~fe fqr a p~Dod of 10 years ~ .. L enqlIl:g Septemb~r 1994, the l~st three of th~m fiS a. s,up~rvisor 10 the L TD de- I' l... '.J i. ~f . .- partme.nt. She be~ame the ~UR~rvlliiOI: of th~ mqIvId uaLh~p~d~lIW the grIevor's file 10 ~epteIPbeI:)991. ( i h...... Umon counsel obJe'cted to questIons of tm:S wItness about the .contents of the insurance pohcy; 'on the'ground1that the'g.rIevance 'Was under the provisIOns 'i ~ of tlie'collectIveagree'ment. In'resp"orise,--coUnsel for the eniployerargued that - f the pohcy was mcorporated' by, t~ference aiid~lhat the employer took the pOSItion that between AugUst 1990 and, Nove'inber'1991 thegnevof, had faIled to comply -" witn the requirement Of the policy that ~cThe empioyee muSt oe':under the per- ,. sonal treatment ora physIcian duringctneentifeperIod of total dIsabIlity" Uruon .., counsel asserted, without contradIction, that this~(the fifth day 'bfchearing m thIs I". I matter) was the 'first bme that that aHegation had been made to the' mUon. We heard the witness answer the questions, leaving matters of relevance' and weight to be determmed after final argument. Ther.e~ does nqt seem td-:hea ~enous' dIsPUt~ abo'tt whether the pohcy ,document identified dwin~ !\Is. Elasahuk's~stimony' was the,i~urance pohcy in r ,place between the Crown. and ~Qnfep'erat~()n LIfe at the ,r~levJlnt time It con- talIl.$ a prOVIsion t,o-the effectquoted"earliel\_Ms. Ela}schuk was ?-~ked whether sucl,1 a provisib'n is stimdard 1Il the ind~try 'She.a;nsweredm the, affirmative, on the baSIS .9f her. eIll:ploy~ent at Confep.e,ratlOn LIfe and subsequent five months' " " I I employment with North American. Life. -, \ , vie' 'do riot thmk it necessary to recite m detaIl the balance of , - Ms rElasch~'s test!mony m <;:hIef, ,It focused on such matters as her un,derstand- mg of the msurer's mternal procedures, 'her VIew of whether Dr Cole's PhYSI- CIan's Sta,tements of January and March 1990 supported the claIm of total dIS- ablhty, her behef about what Dr Stork's opiruon of Dr Campbell's reports had been, and other stlch"matters on whIch her testimony coUld riot and dId not have much eVIdentiary value. ,. J \ "- - 18 - Grievor's Testimony In Reply The gnevor was recalled m reply to deal WIth the allega~lOn that she had '.. . \ not remained m the continuing care of a physician. She testified' that from Octo- bet 1989 until' the Issue was raised in these proceedmgs, she h~d never been ad" , . r vised by the insurer or 'by the employer o'f any concern with respect to bemg in the contmulllg Care of a physician. She testified that as of AugUst 1990 her fam- ily doctor was Dr Black. Between Novimher 1990 and July 1991 she was seemg a colleague of Dr Black's in the same practice, Dr Westerhoff, WIth respect to her pregnancy D~nIlg that time} any-. complai,nts she" had WIth respect to her back would have been raised wit~ pr.\ Westerhoff. After the birth of her daughter she r.esumed seein,g Dr BI~9k." In,August 1~90\ and ag,am in Octgber or November ,. 19~O she als~-.:.saw Dr Campbell. .In -addition, in the spring of 1991 she receIved physiotherapy at a climc run, by a. Dr Eady and thereafter attended a chIroprac- tor jn May_ 1991., During a' good deal. of the period between October 1989 to her return to work she was taking medicatio~ p'rescribed for her by her physicians \ fr.om time tQ-tim~. ShEt testified that ~~he never declined any program of treat- m.ent recommended to her, l;>y any of the doctor~ shE; saw c Argument ." Counsel for the UnIon submitted that the-issue before us was whether the .. grievor was entitled under the 'collective agreement to L TIP benefits for the pe- rIod April 27, 1990, to DeCember 199'li when she returned to work. He argued that this turned on whether her condition satisfied the test for "total disability" in ArtIcle 42.24 ofthe.collective agreement in effect.at-the time: 42,2.4 Total dIsabwty ine1hs the continuous inability as the result of illness, mental disorder, or injury of the ~su_red employee to perform any and every duty of his normal occupatIon durmg 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 lie.is reasonably fItted by education, training or experience. . ,Counsel submitted that the ability to perform duties If they are modified or to perform dutIes hke those of a full-time Job .on less than a full-time basis does not constitute abIlity "to perform any and every duty of hIs normal occupation" WIthin the meaning of this ArtIcle This argument was supported, he saId, by the j .. r - 19 - f ( (prb~ISIdiIS of1ArtIcle 42 7, WhICh contemplate the dontI:ntiatlOn Of benefits durmg I a rehaorhtadve return to work on a grad'ual basis. 'i! \ , .__ #: .'~~. t.. ~~. l' it "l , c..,f. 'ill'l. ,'1 _ 42,7 .If an employee who is 10 receipt of L,T I P benefits- is- resumIng 'J ,,,. . -, 'f employment )<:)0 a gradual baSIS aurihg recovery ,paituil ,benefits , (sh,~p ~~p~n~mued, d~png reha~ilitativ.e e,>>p~oy:ment;. "Rehabilit!ltIve - ~employinent" means'remuneratIve empioyment while not yet~fully ~. recovered; following dIrectly after the penod of total dIsability for _'-'.;' whkh bene~its. were r!'lceI,,:~d, "WJ1en c9n~IQermgi rehabili;~tive employment benefits, L,T I P will take into accounfthe empJoyee's trammg, educatIOn and expenence, 'Theirehabilitatlve:beriefitSwill be i the monthly L.T I P benefit less fifty percent (50%) of rehabilitatIve ) 'J, F {; ,.e~ploymel1t 'earnmgs: The be.nefit will ,cqn~in1J.~ .durmg the . I .i. !ehabi4t~.tive _ e~plo)'ment period up !^> but nO,t more tha~ t~enty f . .! four (24)" months. 'RehaBilitative employment 'DUlY 'be with. the - ( ~~EmployeroriWlth' ~nother emPloYer '_ .I", ..... 1 r;1tJ ~ \! i If"~.. " ~- _ Gouns~l suplmtt~~L tha~ the~Vlden~e shows' th~t the ,gl1evpr could not .... <.J ......~ , : ,J t have ;x~tYrn,eq.rto the normal dutlesof herjob on ~ full-tlm~ pasis before she dId, .' - - .~ an~ that. ;-~~e w~s t~_ere.f9r~ ~n,titled to LTI}? benefits f~r!Qe perj.o.d claimed. cOU{lSel argued IP. the alternative that if the grievor's entitlement turned on , '4, ' -~ ~ , i ~" whether she ,c()Uld have ~et.urned' OIJ.: a. part-time basis ~nd/oI.' -to modified duties, I . tlie e'VfdEmce shows that she coUld not have done 'so" and, in any event, was not j ~ !. ~ , t offered the :opport~ty ~I! that r~.spect, co~el~nvit~4. us tq conclude that the grievdr's uIUon representatIve did rinse the questioIl' of a return to part-tIme . ~ .., \ ~~... "i -~.~. r work at the meetmg of June 27, 1990, and. t~t Mr Brett reJected the possibilIty )- .. r "'( ~,"". ' ~. (C9~e~ not~d tha~, when Dr Tepp~rmaQ.'s $t~te1l},e~~ that the grievor ,. 'should:be'~hle to.,teturn~to modIfied dutIes is read, together with the recommen- '" .j, ,"U datlOnS1 wlt,ich prec~~e.lt m hIS report, it d6e~ not;J~ppear that it. was mtended to 1 . ,be conclusive! 'It ist.;not apparent why' he would have 'made those recommenda- :'~'i ~ , Jio~; aQ,d ,;p~rt~Gularly ,the recoIllmendatlOn concerning the behavlOural assess- ;1 merit, If he) was satisfied that thegnevor could then return to modIfied duties. In ~ . ~ H-"" ':'"' t J ,any'~yent,."Dr. Tepl?~rm~n.did not perforin any test of tlfe grievor's actual abIlity to perfbrmt-the duties,to'wmch he referred. He dId not have the benefit of know- ing .th~ re~urt~ of her tre~tm~nt ~nd evaluat}bh 'at the Toronto RehabIlitation Centre " U~op counselar~ued that the TR.C,report de~onstrated that even a part. r .tIme retl,l~n t9 wqrk was unr~ali~.tIc, both at anq prior to the time of the report. i. .\ .t,: He noted ~hat no evidence was called to contradIct the TRC report; that Dr Tep- " I ~ I I - 20 - 'perman was not aske..,g, for e~amp13'; to reassess hIS earlier opin~on m light of that report. He obsel"{e~ that 10 lIght of the, T{{C repprt, Dr: Cple had revised her earlier opu;uon that t4e grievor could have returned to work even part-time He '{. !. ! .f ~ .\ also observed that.t4~ results ,pf the TRC program l;lnd evaluation were consis- tent with the reports of pam noted by Dr Cole and Iby' doctors Tepperman and 1 1. Campbell.in their repQrts: He noted furth~,r that pr 'Black's report of Septem- ber 23, 1991 showed th~t ~ rettiri:l to even part-time work remamed unreahstIc even at that point }n,time. ,I. - r - I , With respect to the defense first: raised on the,fifth day of heanng, counsel ! argued that a t~!,ID <;>f,.tp,e' in,s~r~nce _contract whicp th~ employer made with the insurer could not affect thegrievor's-entItlement under,the provisIOns of the col- lective agreement, as the insurance contract's terms had not been incorporated , into the collective agteement by re'ference. He also argued that the grievor satis- fied die condition in any event"and, i:l that regard, invitec{^us to 'adopt the VIew - . that the Board took 6ftllat 'conditlori In R1iodes~ supra at pages 26 and 27 '\ , -- i The msurance contract has a general policy which provides that "the "1 employee must be under the' personal"freatrilent of'aphysiciari during the entife period of:total disability;,~ The employer claims th.at this comption has - not been met. It is pointed out the provision requires the grievor to be under treatment for the !~entire periOd" It is contended that there were periods durmg whIch: ,!h~ grievor did not see any doctor for he~ own condition, and further that eve,n when she dId see doctors, she was not receiving any particular medical treatment. ~.! D.nlike .sqme :ipsuran~e ,p.,oli<,:y provlSlOn.s, this contract does not specify perIOdIc (weekly, monthly etc,) medIcal VISIts. The proviSion is very broadly -, and vaguely-phrased. On the evidence'before us, there werepenods during which the grievo:r did not see any doctor relating to her own condItion. However, m our VIeW that does not mean that she "wasnot under -:medical \ treatment durmg, 'those times. Parti,c~larly' in the case of a person with a mental1IIlpaITIJl~nt such as depressIQn, such ,a prOVISion must b~ 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 adv.we. ~f th~ doctor requires that she VISit him weekly she can be expected to do so. However, if the doctor advises her to go home and relax and to see him in 6 months, she:cannot reasonably be f~J..l!ted for not seeing a doctor for 6 mon,ths. SIffiilarly, If the msurer, 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 Counsel for the employer argued that the grievor bore the onus of demon- stratmg that she was totally disabled witluI). the meaning of the collective .~ .. 21- ,. .. j ~ , , l'~: :; a~reeJ,1le?t'i Jt~u:Fs v Constf!lla(iO~ As.surance Co o.~8G)", ~.7--:Si.~.~.l 212 (Ont'. ), J S C) She s~p~it~eQ. fhat the ~ri~vQr p.a~ fallep. to s~t.Isfy thatonlJS ~. , (.; .\.. Eirip10yer counsel submItted that in s6 far~as the'medlcal-evidence was in conflIct, the Board should weIgh It carefully ahd take the view 'most consIstent ......... WIth ~h.~,body of that; eVld~qce. $haUJ,Lmgqn v lVaud., (1~29] 4 .D.L.R. 57 (S C C), i ',," ) _ Gallant etal JJ F W Woolwor.th Co Ltd. et al. (1970), 15 D L. R. (3d) 248 (Sask. 1 ... '... .' V~... !~'....... f ~ ~..... :. ~ .." '. ........ .. c..A.) Sh~ note~d that Dr Cole~s report$ to the Insty'~r 9CJaI1Qary ~nd March ~ 1; ~. -:'.' ....1.. 0 - i 1990 ap4_ her let~~r.,!o ~b.e UnIon o~ i~gu.st. 1990 all SUPP?Fred a return to work. Indeed, the Aug~~_e l~tter referr~d to~a return tQ ful.l-tI~~>WQrk. She ~rgued that I I j1 .... .~__ . .. no wei~ht- shQ\1ld be giv~n to lth~- revi~e4 v~ew tha~ Pr -co~~ e~pressed following ..., .. I......, . t r theTRC-lr~port,pa.rtIGula:rly m. view Qf Dr ,Cole's a(:tmItte4 la,<;k of expertIse On , . . , matt~rs~tela.t~n~, ~Q y?'e p:~l!an~e tp: be placeq on ~edl(~~l repo~s, re\erence was ma~e ,to St. ~osep'" ~ Tor.o~.tq J!eq,lth Centre and Ontarw !Vl),rses' Assoc14twn and ." ~....., _ I\.l .;... l)emse Gh&rt .(Qct,ober 4, 1990), unrep'OJ;t~d (Brept) an4 Br~U!ers..' Warehousmg . '-)t.: . <of' \\..,..! Compa,ny. tprnteq, ancl Umted Bre~ers' Warebqusmg ._Worker,s' Prov~ncz.al Board . f...... ,_ (April 2.6".,J~.88), ~eporj;ed (JoY9~) i ~ t -I- ." '",- !,.. ~ ~ " COunS'ef also argued tharthe T.RC report should ;be given no weIght. She submitted that It was not a "medical opmion" and that Dt- Cole's testimony could l n9t traIl;SfoI1]l it i~t.9,"a medIcal PP)nIoq. Sl1e saiq. that because the msurance pol- . . I ~,t "I ICY J;eq~I;'eL~ that a;cl}ai,man.~ be u~~er the "persopal tre~t1pE(pt"\9f a physician, it ! followed that any ,eY1den~e ,pf .t9tal <;hsapllity 4ad to com~ from a phYSIcian. She . ,- ,', '/-' .E:l~lld -1~ha~ in ,ItS letters to t:qe ~Q1f of .Dece~ber 18, 199.0 and Japl1~ry 29, 1991 ...... - ..).... 1 .! . .,;,the; insurer had asked the u~on for Il:\edjcal eVIdence to support pr validate the ... -;, ... 1 ' '! TRC r~port, $he a:rg\l;~d that tb,e reports s!1pphed dId not do. th,~t. She noted fur- .. t; '" ther th,8:t th,e TRC dI4 not conducta,ny J>.hYSIcal e~~rp~IlatIon of tb,~ gnevor, dId ~ y~ . .. ; not obtaip.a jqb descriptIon or p~y$~C!l1 demands analysis,; did ~ot obtam a de- .SCrIpt.lOn qf tl1e pfl!i-Icular furrut~re and eqUlpm,eIlt. In. ~e where the grievor . _ ' ~ - ' : '~-.J ~ ~_. worked and dId not keeprecQrdE:l of the observaj;IO.IlJl on whIch Its report was f based Furthermore, she said, there was no assessment of the severIty of the pam and whether the grievor could work despIte it. She submitted that the fact that the grIevor was experiencmg pain was not determinative of whether she was dis- abled, ) Counsel for the employer n5ted that the 'TRC report and reports of . , I Drs. Ca~pbell and; Biack all state that the grIevbr complamed that drIvmg made :! ~ ! - 22 - her back pam worse at the tIme of her attendance at TRC She noted also that It took longer foi the gnevor'to drIve to the TRC than It wotild take for 'her to drIve to MTWDC She argued that because the'added dnvmg wotJ.ld have added to the I ,grIevor's di~c9.mfort, her e~p~riem:;e:atJ th~ TRC was.not,a {reliable measure of her abilIty to ret!lrn to work. " ~ J . <. Employer counsel argued that the proVIsionS of the polIcy were mcorpo- I i'i.-. I ( rated into the collective agreement by reference, having regard to the references T to "the Long Term Income Protection Plan" in Article 42 I, "L.T.I.P benefits un- d'er the pHm" in ArtIcles 42.2' 1 (b) and 42.3 and "benefits from the L.T.! P plan" in- ArtiCle 426 She cited Be Green Valley Fertil~zer Ltd. and Umted Food & - Commerc~al 'Workers, Local 1518 (1991), 22' L.A.c (4th) 417 (Hope) at 428 for the proposition that "standard" terms df a plan may apply 'so l~'ng- as they are not inconsistent with the terms of the collective agreement. The reqUIrement that an employee claimIng LTip benefits "be uhder the personal treatment of a physi- - clan dUring the entire period of total dIsabIlity" is a standard arid, thus, appli- cable reqUirement, she submitted.'Counsel argued"that this reqUirement was not . met during the period August 1990 to December 1991 by occasional office visIts ,.with Dr Black and. the attendances on, Dr Westerhoff which were related to the , _ .. '......., ".. .g~ievor's pr~gI!ancy FInally, employer counsel argued'that when someone who is presently un- :ible to return to work at 'her regUlar occupation on a full-time basis but could do . , - so on a part-time basis, that person ik"tdtally dIsabled" only if there is no prog~ ., nosis that she will be able to retUin to that work on a full-time basis at some identifiabie future time. When there is such a prognosis, she said, then such a persoIl is not presently "tbtall)F disabled" within the meaning of the collective agreement. She cited the majority's decision in Wong, 1299/89 (Simmons), m support of this proposition. She argued that all of the physicians whose opinions are before us exPected that the gnevor would eventually to work, and that that , ! defeats her claim that she was totally disabled: . '-) Decision 1 The unIon bears the onus of provmg that the grievor was entitled to the be~efits which she claims she was Improperly demed. That Issue turns largely on vvhether the gnevor was "totally dis~bled" during both the qualifymg penod and . .. ., I y 23 - (, J tl?-e penod 10 respect of whIch she says she ought to haye recEHvec\ L TIP benefits TotaJ dIsabIhty IS deflf!.edm ArtIcle 42 2 4 of the relevant collective agreement. ~ . f r f -fj " ~., ~ ~ :\~ 42,2.4 Total'~,lsabihty: means the ~ontmuous ina~1.h.ty' as the result of ilIQes$, i ,mental dIsorder, or'mJury of the insured employee to perform any and "every 'duty of'hl!L normal occupatIon durirlg the quaIIfication'penod, '"1 ~nd d"urWg the first tw.erty fO,m: (24) monthsj of rbenefit p~nod, ~nd thereafter during the balance of the benefit penod, the illability of the 'employee to~petform -any'and'every duty of anygainfiil occupatIOn for whIch he IS reasonably fitted by education, trammg or expenence. 1 ~':' ,~i.'f L t~, ., Article 42.2.3 says that LTIP benefits "commence after a quahfication penod of \ l r" - ~ , - 'I .:..,.; ~,: . - "' .. ,~\ ~'l ~. ~.~ . ~IX (G) mQntlli! from the date the employee becomes totaily disabled" Artlcle- . ~ , .. ~J"" 1 i ,. . _ --.: > ~ 42.2.2. provjde~, ~I!long other thlI~,gS, that LT~P benefits "are payable until recov- ; . ~ r' ~ t . i. :: _ ::: er:y, ~e;ith 9~ the end of the month ,10 which the emplQyee reaches age 65" . (~mpb~sis agde~) Article 42 7 contemplates the gradual return to work of an -;:.", , . I ~_ employee ~J;10 has pe~!l m receipt of LTIP benefits. It IS in that context that Ar- " ;. 1 '.. ""... 7' ..t... .. ticle 4.2.2 4 w,ust qe intemr~teci~ -: " If.iits wdras are-interpreted. m a mechanical way, the phrase "mability ~ l-toperform anyahd. eVelryduty'ofhis normal occupation" may seem ambiguous in .' its'applieati6rF'to the individuaVwho can perform some' but not allof.the duties of A IDS or hef'riormaloccupatioh. From,one perspective, if there is any one duty that the mdlvIdual is unable to perform then that mdlvldual 'IS' unable to perform > every d~ty From aI.1?ther perspectIye, i~there.ls anyone duty the mdIvIdual Can -;~.: , p~rfQ,rm, thep., ~he indIVIdual's inability to perform does not extend to every duty .... ~..,i " 'l Jt "'1.:1. r and, ~9" th~ mdIv~dualIs n.ot unable to perform every duty There is the same ;: prob,lem with the concept of "inabihty to perform' any duty" The function of '\ tp.e co~jwwt!9,n "anq" m~ght also be debated. We ~o not intend to explore the se- . ,", ' . . ~ -:r' . - ~.,... mantles of the problem m depth. There are only two possible results, however One is that the phrase does apply to the mdlvidual who can perform some, but not'allVofth:e duties of hIs, or hein6rmalocc~patlon. The other is that the phrase ~ does :not apply, and beiiefits.are not available, m those CIrcumstances. .' This a~bIgUlty must be res<;>lved by reterence~ to the context m whIch It arises The phr.ase in qu~stion .forms part of the test for qualificatIOn for benefits under what. IS de~cribed as ~n Income Protection Plan. In the circumstances in questIoJ\ her~, the mCOple pr9tect~d IS income from employment m a particular pccupation. That employment, and tp.e consequent mcome, can c~ase if the em- ployee is unable to perform all of the essentIal duties of that occupatIOn. As re- ? . 24 - gard~ the contmuatlOn of mcome from employment 10 that occupatIOn, therefore, t an mdivIdual who can perform only one or a portlOn of the essential duties of that occupatIOn IS 10 the same position ~s ohe who can perform none of them. Bearing in inmd' the l~cbme protection' context, "inabIlIty to perform any and every duty of ,hIS n~~mal.occupat!on'~ must surely mean in~bllIty to provide the perform~nce on which ~dntlnued empfoymeht Iii th~t 9cc-upatlOn depends, that IS, inabihty perform aU o( the essentl~l duties of theoccupat~on. :;- ~f The grlevor's records clerk Job was_ one 10 whIch she was called upon to 1 .. J.4 ...... I?erform certam d'uties on a full-timeJbasis. An abIlIty rto perform most of those - duties for no more than two or three or four hours per day was not smficient to , - .,i' '.. satisfy the requirements of the positfon. Mr Brett made 'that clear at the meet- ing otJurie 27, 1990 We accept the grievor's version of that meeting Mr Brett's ~. . ) i..... '-' remarks confirmed the gnevor's prior; reasonable belief that part-time perform- , ance for an iJ1defimte period would not be acceptable. Mr B'ret~'s own testimony made it clear that part-time performail"6e would have 'been tolerated only for a , ,limited time and'onlyat.~,pomt in;tlI~e wh~Il her. ability return to full-tIme em- ployment soon therea,fter was rel;lsQJ).ably assured. -In our view, so .long as the grieyor was unable'to perfol'IIlber Job, oI}.,.a ,full-time qas~s. she ha,d an (<inabIlIty to perform ,any 'and every ,duty" .of her normal occupation within the meaning of ArtIcle 42.2 4. . . . J ^ As we have-noted, Article 42.2.2- contemplates that someone entitled to , " .~ r f ~ LTIP benefits may subsequently 'recover Article 427 contemplates that someone entI~led to such benefits may gradually return to work. This perspective seems quite inconslstertt with the notion that someone cannot be't6tally disabled at one , . - time it at t.hat time there is a prospect or prognosis fot recovery at some future , ! time. ~I We have carefully reviewed~the majo.rity declsIQ~ m WQ,ngj slf-pra, as well as the. dissent and the chair'.sl;l4d~md;'JPl,. There are indeed several pomts at pages 34 and following of the majorIty decision at wIDch the majority remarks that doctor's notes and' letters offered m support of a claim for LTIP benefits had not stated that the grievor "would not be able to return to work at any time m the future" or "that she WIll not be returning eventually" It is apparent, how- ever, that the doctors' notes did not' account for the entire perIod during whIch totally disabIlity had to be establIshed in that case It IS also apparent that the -- -- .. -. , - 25 - maJo~"lty thought that for at lea~tpart ot"ih,e relevant perI6a\h:~ grH~~or was ab ., I '{ .,-",., ,~ r' .~"'~.'''' i1'\.! ~'_~ sent'beca'use she did hot like her assIgned wOrR 'and not 'beeauseshe was unable H.l Eo perform it. Those-are Itid~peAde'ntbases oh whIcf{~the rhiJ6tiity's deCisIOn could ~ t. - - ':o~ }J .).1\ 'f"j J~.'-~~ ,~ 'ha ve rested'. ,. , , ) ~-1_"'. i ""1 < .--, .~ '., r ~.. <, One of the several po!nts wit4 whIcl1~p,e dI,s~ent,~po~;,i~~~~,}rt Wong was ;.~\ the majonty's focus on the pros.pect that the grlevor would ev~ntually return to .'. . r' , 1 I'~ , "',~ {'. ~ work. 'The d'iss~entlIig member apparently interP~r~ted those -references In the ;:, same ~ayas employe'r to~~l h~re would"have Us i:htetp'r~t' thMn. The dIssent ('~.... : ~ :-+.~ ,1,'_ :.~,::O-. ".,{ r. _ q. ~". _'P;"~"'. .'1_ ,.i made the point that Article 4'2.~' 4 did hot say that' disability -had-to be perma- .,\... \ c~ '~ent in order'ib-be (oi&iJNeItBet the nl~)Orlty d'ecisIoIi not th€ ChaIt'S addendum responded to or ad'dressed thai 'paine Althdugll the In:ajo~~ty deciSIon fquoted Ar- I . ..... .".~ '11. ,\.'. ,:3..... 't ;" '-,""~ .. ticles 42.2.2 and 427, among others, I1Enther It nor the addend'urn consIdered the significance of r~fe~ences in those drticles to the p rosp~btd(rec6ve'ry' ahd gradual j t . IT ~ 1 ;..... _ .t, : ,; _ : '\",\'" -, ,- ....: return to work on the 'part of someone' entitled to t.:TIP- We 'are left 'uncertam J ,." _ :. :_ . ;. _ .'.-#' ."\;'. I.... ,r ., whether the majority meant to say that a dIsability must app'ear'td be perma- J'" "r"' nent in order to be '''totaY' "withIn the fueamrig of .Article-42':2 4' If,they did, we j ar,:e \lIlB.ble to asceitairi'their rei~onl forfth~t conciusibn. ;,"1 ~'- .,iI,i ) ;;( ...':...l In olJr,vieW, if ap elIlP~.oye~"s'GondItion at a relevan,t tirpe IS as described m ArtIcle 42 2 4, then the employee is totally dIsabled at that time even if at that i . · time there is S9me reason to suppose that the employee wIll not be totally dIs- E - .: I r' J. 1. c 1" ~.i"- ~bled at a l~ter time. ! ~. , , r , '~,.- - The ;central 'qlJ.~sti?-n,4l).en, is 'Y;hether the gr:1E~vgr[ ~as cOIltmuously un- , a;ble;\dUrlngithe qualifyi,n,g,poeriod a$_well as the peIi-od-fQr-which,;she claIms LTIP ,-. b~nefits; to'per-form the'essentI~tduttes of her recorq cler1~ posi~Jop on a full-time .~ basis by reason qf Illness Qr .inJury-.- f' ,,- Dr Cole was treating the gnevor for her back'problems before, dunng and """";"0.;' '. .,.. after the qual.ifying perIod. WhIle she. encouraged a 'return to 'Work on a part-time !: . 1 . -- ~ basis for its anticip;lted therapeutic effect, her opmion throughout the qualifymg period was that, as a resuYt of 'her past mJurIes, the ghevor coUld not then per- form the duties of the records clerk position on a full time -ba:sis. She testified that in retrospect, haVIng regard to the TRC report, even that assessment was overly optimIstIC. We WIll COrne '.back to the TRC report a:nd It$ jSIgmficance Up to the end of the .quahfYll;Ig: perIOd, on, App127, 1999, however, Dr Cole's were the " . - -~- - ~._._- -- ';: ,~~ . \ - 26 - oply ~s~e,ssments H;er Irel~tIve me~p~rIence dqes ,not d~prIv~ those assessments R ~. , ; , o,f a~l sIgmfi9an,c€{. Tog~thyr wIth the g,rIevor's own testImony, they supported l a~~ ~tIll ~u~Ilprt'lt,he proPQ&It~?n that the grieyo~ wB:~ contmuously unable to per- -/ form "any and every duty" of her OWrI occupation by reason oJ Illness or injury At that point in time, two further matters were pendmg' Dr Tepperman's examI- nation and tlle initial iiitervie\v'at the TRG ~ - - ! ~.l l' ~..., "" f "'~.6 ! ., ~ :'1 ,. .J , On the Raf;i~> oJ the, grievor's ~i~tory ~nd a physIcal exammatlOn, .( t b ~ . Dr Teppenp.a,I;l, ma~esome recomI\lendat~o~ aP9~~ possibie future treatment , ~ ~.~ .... ,...;; ,~ and. then,state4 that "Ms. BogrIar should b~, .~pable pf returning to work" with I ' " -.. '" , ,restri<r!lqp~ tp.at.,he s~id per 'York as a recor~s ~lerj,{ ~eemed to ~eet apart from ,.the matter 9[ b,eing able tQ get up ~mtmove ~ro'Wt;l'r It is not clear from his re- ..... J .. "P?rt \yhet~er h~ thg~ght she, ~.ou~d return to work immediately, w~thout first pur~~ng..:, ~lI~y of th~ recoII;lm~ndatio~,he h!ld set out earlier in his report, nor _ w!lcether i~especW<;allyconsi~~Xrd" whetp.er she ~d a pres~nt capacity to do the records" clerk.w9rk o~"a f~l.time b~sis. In ~P,.l: ev~~t!. Dr ~epperman's use of the words."should b~ capal?Je gf ret.urning" .r~ther than "can return" underscored the -- .. -! fact that this \yas a pr~dicti9n~ The mtion'~ ~$,e is tha~ if it was a prediction that / j : J the gnevor could then return to her records clerk position on a full-time basis, , I tliat pre'dictIon nas been proven inaccurate by the:TRCreport. - The TRC "report ,refle~ts the obseryations ?ver a penod of weeks of an oc- cupational therapist experienced in rehabilitation, ;Who ~as ac~ively trying to , improve the grievor's condition to the point that she could perform clerical work on a fullSUme 'basis:':The occupational- therapist concluded that 'that goal was not -, then attaimible, because ofthepaiIi which, the gri'evorappeared'to expenence as ~ a resUlt of performmg clerical work for only two ov three hours a day; three days a week. HaVIng regard to the occupational therapist's' trainmg and experience, we are satisfiedJ,hat her observations ant;l her opinion can a~d should be taken into account in COmIng to our conqlusion ~>n the question whethy!, the grievor was r. ". ,t.... contin~ously unable, during the qualIfying period as well as the period for which < the grievor claims L TIP benefits? to perform the essential duties of her record clerk position on,a full-time basis We reject the submiSSIon that only a physician can proVIde probative evidence in that regard. oJ ~ < On its face, the TRC-report is strong eVIdence that the gnevor. was totally disabled throughout the months of August and .Sept~mber 1990, as she was far oj " 27 - '! " ~ 'j from able', t6;I!>erfbrm'genehc~'dencal.work 'on a full tIme ,basIs. ,EmPloyer counsel "I .; argues that this was'-;an unreliable measure .of total dlsal;nhty.m relatIOn to the records clerk job 'because 1\RG di~ not hav.e the: employees descnpt10n 'of that Job j and did not kn,ow VVhat kind qf chair or table the employ~r supplIed, and because 't \- ,!.; t:(-~., [ , ;J' . "', ~ . the gri,evor drove farther to TR,.C than she would have to drive to get to, her rec- f.... -.' ~f <t. ~ ...~ '.... ~ ' t 1""- tn' ord~,~~e,r~ Job There is no foundation in theeviqence for any conClUSIOn that the It:- . ': , ..1. 1 "\ -( _ L., . .l- work ,performed' at TRC was more dIfficult for the grievor than the work of the " ~.. . I '-" '"';' -1,-1 .{ i i. _f 1. 'r' ' records clerk positI9n wQuld have been. The occupational therapist nag. a general ~ f "J , lL~ 'if , "\ '. . ..... .. _ ... f 4~~cr!ptiop of P?-~ ~ecords cle\f job from the..grevor Emv10yer counsel dId not -. ......;.-.. 1 " : J __ u ~(i~.ntify to her,or to ,~s, some difference betweeq that descnptIop. and the em- ':"'~.' t ;;..... I :,.> j....... "f" . q...... [; ployer's descnptIon tl,1at mIght have made a signifi€ant difference to the grievor's I r- % 1"'\", ,. L .performance:. SiIX!iiariy, employer counsel did not'identify to her, Qr to us, some - ..:.. l;..l..': ...; .. ,- s~gIllJj.can~.difference between the employer's table and chaIr and each.:. and every . 1 , ~..:"1 _' of tl}e vaIiety qf tables and chaIrs and adjustments thereof that the Qccupational - . .' .;.. r..-l...;.... ) j. ~ thera:Qist said had beer;tri~d at; TRC in attempts to mronmize thegnevor's com- ..- .J ,..... "'- _' '" ~. . p . . fo~. While we accept that the additional driving time might_ have made some dif- L.; ':r ,4 ~'1,)'. '."";: 7' 'j l' ...............,. y ~ ference to the grievor's stamina, we cannot believe (absent some credible expert expl~nation) that the difference would account for the dIfference between full- time:perforinancerand the-performance the,grievor. was able to achieve atTRC ^ r~... -:- ,;" ~7: <Dr Campbell saw the grievor in August 1990 and again in October or No- ~ (.,. ~. ~~ ,}.J -f' ;. J . ~ '- J .' vember 1~90'1and v,v:r:ote ,repo$ dated Aug1lSt 29 and November 9, 1990 The ob- .J.. ;," _""';:' ~ . servation,s anct opi~ons expr~ssed in those r~ports do not appear to us to bem- , . I .. . ~ _\ J( .., co~isteIit w!th those of the TRC report. Dr Campbell's report speaks of encour- "'L vI!;.., r ...!:. -: A ~_ . ~gmg a graq,ual retUrn ~q_work, witho'ft pJ,'ovidm~ a-time frame or oIfenng any ~. '- ~ ~ .~ ... assurance that there WIll be a successful return to full-bme work. The recom- - '~::'f~c.... . Li... - mendatlop of~ ~~radualreturi:ltQ work is inconsIstent .with behef that the grievor had a ,pre~ent ability tQ return to work on a full-tlme basis. The phservations m ; the,TRC report are also cOnSisf~nt WIth Dr Cole's assessments dunng the quali- :! - - ficatlon penod, and the gnevor'sown sense after the quahficatlOn perlOd, that ," .....~ . ~ ~ ! th~ ~rieyor cOtl{d not manage ~,return to work on a full-tlmebasls We should say. that lit was not put dIrectly to the' gnevor or to ,Ms Ebbers tha,t ~~~, grieyor was !mal~ngenngor fakmg durmg her attendances at TRC '. .. .- H~ving heard thegnevor testify, and havmg regard to the medicaJ eVIdence and J I to Ms. Ebbers' testimony about the consIstency of the grievor's behaVIOur, we re- , ;::, - 28 - ~ Ject any Implication that th~ TRC report IS unr,ehable by reason of any, supposed mahngeruig or fakery Jon, the gne;vor~s part. We are satisfied thather..inabIhty to perform thegeneric,deiical work at the TRC for. more than ;two or three hours a - day'wasdue:to the' contmuing effects of-her past mjurles. I ;' ^, . ~ ..... ..! ,,:~.; 'f Apart from whatever may be 3;ttri}?uted to tl}e ef~ects o~,drivmg, there IS I .J.~, t - nothIng 10 the eVIdence to expla~n why the grievor's ~ondition IJl August and Sep- ~ . {, .;.)..- ( t'1 . : f. tem~er 1990, ,w4ile attending the pre:vocational 8;~sessment at'TRC, would have ,_, ~een,-,v'orse th~n it was in f\'1ay 199,? whe;n she attende4' Qrn Dr Tepperman. D~ Teppe~~n's report offered a predIction about the ,grievor's ability to return ..,. _ J(" j.. ~, " \ :l f " ~ . -. to work. The process at'TRc proVIded the opportunity to actually measure that , 'J ~. _ i. ..i"'" ~ -t;~ !: _ . , "')l ,,:; ability As measured, the abIlity was'-not ~s Dr Tepperman Kad predicted. As we have ~lread.y saId, po more than a part ~fthe d'ifference between the prediction I and t~e .me~suremep.t Gan be accounted for byth~ effectS of driving. .. ..... ",. ;.)... .;.. . _ f 'J. , .., , _ f" f ~ Dr Tepperman was not called to aefend his prediction in light of the TRC report. No ph;~icIan, 'specialist or otherwise" wis'-called to say that there was some bet- " ,'-1,. . "'- te~r way of measuring the grj.evor's ab~lity to return to work' than was employed ~ . . ; ! i..... t. !':.l -1 > r :.....t.' _ f .~t the TRC No such better test was demandea by the insUrer after it got the . r.j. r __ ~~_,.....,_. ~. TRC report. _ - ' I ,-, " That :brmgs us to employer counsel'sassertion:lthat the lUsu,rer responded ~o the TRc report by a,sk!~g the union for medIcal evide~ce to $UPport or validate the TRC report. Whatever may have been in the ins~r's mmd, that is not what fk . ,. t....- , - the insUrer asked. It asked for "a complete report fromDr-ca~pbell" and later refined the request to ",Dr Campbell's consultation notes." It did not give any reason for this request, other thaxi that the requesteC:l report was needed "in or- der for us to render a justiflaole- decision" The msurer did not ask any questions or express a.ny doubt about the authorship, methodology or conclusIOns of the TRC'report. It dId not ask whether Dr Campbell (or -~ny other phYSIcian) could "validate" t~e TRC report. It dI~ not say that the TRC report had to be validated v 'before it would a~cept it. Dr Campbell had no c6nnection with TRCThere was no reason for the umon or the gnevor to suppose that the vahdIty of the TRC re- port was m doubt untIl after the 'hospital finally prOVIded what the insurer had asked for and the insurer then m~intamed Its denial of ~Qyerage. It IS saId that the grIevor'lost any entitlement she imght otherwise have " ~ad to LTIP benefit$ durmg the period from and after August '1990 because she - ...' ;i! 29. i . { dl(~ ,not re~am 10 the cO,IftmumR <(arE; of aph,ys,l(~~aD,;, -a$ tl:1e IJ:lSura~~e polley be- ~\v,~en th~ msur~r ~nd ~he empl9y~r p~quirep. We do ,not ~ave to ~.~qde whether t\1at ~uirelItrnt 1~E? effe,~tive ,as,a~~mst th,~.~uIlion and, tl}e gneyoras I;i qualIfica- tlOP. to~he expres_s l~I;lguage of th~, coll~ctlye, agr~~m.e,J?t cpn,.c~}'l1mg~~ntItlement to ben~fits. ~n;O\lr vie\y, the grIevQr met ~,h~ ~Ol!~l.tlOn. l~ '\.-l We agree WIth and adopt the Board's observatIOns in llh6des, supra, WhlChw.~ quptede~rlier atpage 20 of tQ.I~ deci~~on. The obser.vation that "Once . . ",).. a p~rs.on P\lts, hex~~lf iJ;l the haJ;lds of a q~ahfied do~tor, it is not reasonable to / ,." . ~ " I '- I..... t expe~t l1er to d,oanyth~pg,_P1,qre ,than foll~w the dOGto~'s advice" applies equally _ '...... - ,-",:" .r" where, a,s- ~er_e~ t~~r~ is no s\lg~estipn_t~~ the i~dlvidu<al sliff:rs, from mental impaIrwenh rh~ gl;i~vor ~aw p~ysiGia~ _ fropt tlJ;~e to .t~me durmg the penod from Apgust 1~9Q" to _~eru return, to work, both for her back .problem and in con- t. ., , t _nection with her pr~gp!J;lcy" )Vm<;h had an hnpact o~ thet~aclt problem. There is no evidence that the gnevor ever failed to act in accordance wit~<.the recommen- dations of her doctors as to treatment, in so far as she was able to do so. In that regard, whIle physiCians she consulted did recommend a therapeutic or rehabili- ... f ;...... tative gradual return to work, we find that that option was not available to her from the employer until she could provide a medical opInion that she could re- ,-, turn to_full-time employment after a limIted penod of part-time work. It was only avalhible for ~ h'Inited tIme from the TRC There is no s~ggestlOn before uS, and there was no suggestion at the time, tha,t there were any other options she ........ ~~d Q~ $hQw4lw:ve..ptg-sl,led in that regard. ~ ""'{' We note there is no suggestion that the interventIOn of the gnevor's preg- nan,cy or the effect tl,1at may have had on her back condition shou.ld have any ad- ~, - verse effect <;m her claim. - - 4.-1. - On the evidence before us we are sa,tIsfied on a balance of probabilitIes that the gnevor was totally disabled within the mearung of ArtIcle 42.2 4 during the relevant quahfying period and remained so from April 27, 1990; the date she thus became entitled to L TIP benefits, until her return to work m December 1991 She was thus entitled to receIve LTIP benefits throughout that penod. We cannot help thmkmg that If some fractIOn of the dIrect and mdIrect costs to the employer of these proceedmgs had been expended on attempts to resolve the is- sues in late 1990 or early 1991, through some process by whIch the concerns of each of the employer, the employee and the insurer were made clear to each of '-, ~ - 30 - 1 the others and some mutually satisfactory means of resolvmg any remammg un- certamtIes-was identitied a:nd implemented, then the 'grievbr's e'ritltlement might have been recogmzed earlier and at consIderably tess cost to all concerned. Re- . . i '.. ".'""\.:' halhlitatIve employment could' then have be'en avaIlable under ArtIcle 42.2 7, r, ..., ,; ~! .... '- ~ and both tne gtievor's return to work and her renabllitatlOn niight have been ac- celerated, thus liriutirt'g the liabihty whIch now flows from our findIngs in thIs nlAtter ;- ~ , ~ ~ -4- .- ThIs gnevance is allowed. The grievor Is~e'rititled to receIve (subject to any '~. ~ ,- r..... apphcable statutory deductions) the LTIP benefits she would nave receIved, to- ~ , .... . ". I . ' i g~ther with mterest thereon, ahd to be treated otherwise as though she was en- tItled, as we have fourid: to LTIP benefits during the period from April 27, 1990 to her return to work in DeGember 1991 The employer is-dIrected to make the griever whole m those i'es~ects. We remam seised with any issue cbncerning the iinplementation of this' award which the parties are Unable to resolve them- J f,;:' ., I selves~ r ., ~ .., ,.I .., " Dated,this 23rdday of November,.-1995 ..-... ! J . ) ./ 'J L... -/ ~ i ( -; ( / " '- , ,- O~~n V- 9rflY, Vi,ce-C~~ir - , ~ -i/; " ~ ' ;C--n--c~(/ I. Tho~son,~ember \. >, lltr o/7~ M.O'Toole,'Member _t r / t .~ ~ \ J ,,~