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HomeMy WebLinkAbout1992-3739.Baldeo.95-03-13 " , ONTARIO EMPLOYES DE LA COURONNE ~J (I I CROWN EMPLOYEES DE L'ONTARIO . 11111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 --rsrr;-m:JE"1:JrJND1fTJT:JES/,I!/JJff\U 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 ~11~n'r:~.\14-ln ' . .', '\'. "-li<l': ^~'Si ~ . i.~ ,~C~ .- r;' .., ~. I' " ; &,j, ." " ;')-' \ ~~ MAR 1 4 1995 GSB # 3739/92 :; ,-~~~:" 3" OPSEU # 93B299 - 'I PlJi:li..IV SEHVICE i IN TH~ MATTER OF AN ARBITRATION APPEAL BOARDS ~ I Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~ .~ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Baldeo) Grievor - and ... The Cro~n in Right of Ontario :(Minist~y of Government Services) (Management Board Secretariat) Employer BEFORE H. Finley Vice-Chairperson E. Seymour Member D. Montrose Member FOR THE P. Lukasiewicz GRIEVOR Counsel Gowling, Strathy & Henderson Barri~ters & Solicitors FOR THE A. Rae EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING April 21, 1994 August 22, 1994 september 19, 1994 October 12, 13, 14, 19, 21, 1994 :l I I ~ ~{ GSB # 3739/92 ETC. ", o E CIS ION , I There a;re two grievances before this Board. The first, dated January 11, 1993, alleges that the Employer, the Ministry of Government Services, 1s violating the provisions of Article 42 (previously Article 72) of the Collective Agreement by denying ~ the Grievor, Ms. Leela Baldeo, LTIP (Long Term Income Protection) benefits. The Grievor asks that the Employer comply with .... Article 42 and compensate her for all lost monies and benefits with interest. The relevant section of the article, 42.2 [72 2], reads as follows: 42 2.1 (a) The Long Term Income Protection benefit is sixty-six and two-thirds percent (66-2/3\) of the employee's gross salary a t the d ate o f disability, including any retroactive salary adjustment to which the employee is entitled 42.2.3 Long Term Income Protection benefits commence after a qualification period of six ( 6 ) months from the date the employee becomes totally disabled, unless the employee elects to con tin u e t 0 use accumulated attendance credits on a day-to-day basis after the six ( 6 ) month period. 42 2 4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured '. "- " empl'oyee to perform the essential duties [any and every duty - (Art 72)] of his normal occupation d u,r i ng the qualification period, and during the first -twenty-four months of the benefit period, the inability of the employee to perform the essential duties {any and every duty - (Art. 72)] of any gainful occupation for which h e i s reasonably fitted by -- education, training or experience , The insurance carrier of this benefit at the time of the application, the - resubmissions of the application, and the hearing, was Confederation Life. The Grievor has not worked since March, 1990. I The second grievance, dated June 17, 1993, alleges unjust I dismissal and asks for reinstatement, retroactive pay and i benefits, with interest. The Employer takes the position that the I Grievor failed to report for work and has abandoned her position. I The parties have agreed that the second grievance will be held in abeyance, wi th the Board seized, pending the Board's decision on I the first. ,,,,",, The Board h~ard te~timony from Ms Leela Baldeo The Grievor Jaan 0: Roos Mo, FRCPC A special ist in Respiratory oisea~es with expertise in the occupational setting. Susan M Tarlo A specialist in Allergy, MB as, FRCP (C) Clinical Immunology and Respirology with expertise in the occupational setting 2 ~ -, Gordon Lax ',;, A manager from Property Administration, Ministry of Government Services. Mary Donovan Sup e.r y i s 0 r , LTD claims and formerly senior adjudicator on the ,Baldeo f i 1 e from Confederation Life Marja-Liisa Konttinen Pr9perty Manager at 25 Grosvenor (the work site) from August 1992 to September 1993 Maria Lima Acting Property Manager at 25 Gro~venor at the time of the nearing and previously Ms Baldeo's supervisor. Th,e medical evidence also included periodic written report(s) from T. Rewa, MD Physician, Employee Health Services T. Inouye, Specialist, Respiratory and MD, FRCP (C) , FCCP Internal Medicine Internal Hugh Chambers, MD Physician, Employee Health Services Vasse T Moodley, MD Grievor's Family Physician Norman Epstein, MD Specialist, Allergies A chronology of the evidence is helpful both as a reference and an aid to an appreciation of the situation as a whole. It is found in Appendix A Ms Baldeo is a Cleaner 2, working 26.5 hours per week in the evening, cleaning offices. She was hired on September 18, 1980 in this capacity and during her employment has had three clerical/receptionist secondments It is necessar~ ti~cause of the nature of the grievance to include certain personal information about the Grievor in this decision Ms Baldeo is in her mid-fifties, married with children She has had a number of 3 ~ '. medical pr'oblem~ 1n tl1e last few years, one of which is relevant to the issue at hand, that 1s, her asthmatic conditiop which medical testimony demonstrated, to t,he Board's satisfaction, is of ~ mOCl,er.ate and manageat>le degree l, The Grievor testifie:d that between 1980 and 1990 she worked for par.t of the time as a part-time cleaner in the evenings at the Geo~9~,Drew BullCiing at 25 Grosvenor street. She also stated ~ that she!, h~d a series of secondments which she ~irranged without Management'!? help (although management signatures were on the -~ secondment documents), when she worked either as a file clerk or a receptionist. These positions were full-time, 8:30 a.m to ". 5 00 p. m. . The cleaning, as she de?cribed it, involved dusting machines, putting qut garbage" sweeping, vacuuming, dealing with - shredded paper for recycling, and heavy dusting. (This did not reflect the job specification or the testimony of the cleaning supervisors, item for item. ) She was otten assigned to the area in which cheques were printed by a computer system and sometimes to offices These areas, she testified! were cleaned every day. At one poi n,t , certain cleaners were asked to assist her but, according to Ms. Baldeo, they were only willing to do so for a - ' short time, and then suggested that if she couldn't do her job she should find some,thlng else. The cleric~l work involved telephone answ~ring, mail sorting and distribution, filing and copying. She told tl1e Panel that she had her fi~st asthma attack at home in 1982 and as a result was hospitalized for 2 weeks and later, in 1986, was away for 3 months due to asthma, pneumonia and surgery at which time she was referred to the Employee Health Service becaus,e of the extent of her absences Ms Baldeo acknowledged that she was frequently absent. At home, she explained that her husband vacuums because of her problems with dust, and ,the children clean the bathroo~ She takes care of the laundry, washing,~ dishes ~nd loading the dishwasher and the cooking 4 i) It was during her secondment in the File Room in 1989, while going through and copying old files, that she had her second asthma attack She described its effect on her and the treatment she received. She told the Panel that she suffered a variety of symptoms, went to see Dr. Chambers at the Employee Health Service, and was sent to Women's College Hospital Emergency Department where she received emergency treatment and remained for approximately 3 hours (Dr. Chambers noted that he gave her an injection of adrenalin.) She testified that some ti'me later, Dr Chambers telephoned her and asked why she was still doing the filing job when the report stated that her job should be-dhan~ed. According to Ms. Baldeo, he advised her to see her manager, which she did, and he advised her I to Employee Benefits She ,.- to speak did so, and was advised, according to her testimony, to apply 'for Long Term Income Protection which she did, only to be turned down. I.n April, 1990, following her last day at work, she saw her family physician, Dr. Hoodley, and informed him that "cold air, perfume, and smoking on fhe bus", all bothered her. She reported seeing him again in December of the same year, because she was unwell. She testified that following her visit, because Dr. Mo'od ley had not said much to her, she considered changing doctors. She also testified, in cross examination, that she always wanted to go to work, even though she was sick, and does not recall stating that transportation was a problem. She did not consult wi th Dr. Hoodley at the time that he provided input to the modified job specification and disagreed with him as to her being able to use vinegar as a cleaning agent, explaining that "it got to her when she lised it at home" (Dr. Tarlo testified that sensitivity to vinegar is extremely unusual) The Grievor stated that although she was aware that g10ves were available for cleaners, she was not aware that masks had been available since 1984, that no one had told her, and that she did not, in fact, believe that was so 5 ,-- Ms Baldeo testified that she "won't go back to cleaning", and believes that she is able to do the receptiontst job at Grenville street as long as there is nothing to, do with files. She do~s not like t'o take medication, especially prednisone (prescribed for her infrequently) because of its side 'effects. She acknowledged that sometimes she '~gets 'mad" and will not take her medication. Three mana'gement personnel involved directly with Ms. ~ Baldeo, testified. The first, Gordon Lax, who, as Property Manager for 'East of Bay street properties', had supervisory authority over, ,the Grievor's position from March 1991 to May -': 1992, stated that he was seeing Ms. Baldeo for the first time at the hearing. There were two supervisory positi~ns between .hlm and the Grievor: the Cleaning Supervisor and the BuLlding Manager. He testified that he telephoned the Grievor twice during this period, the first time in late December, 1991, the second, in early January 1992. The substance of these conversations was that her claim had been denied and that the Employer would like her to come back to work. She telephoned Mr. Lax early in January and told him that she was going for more tests and would not be able to return to work. Mr. Lax stated that he advised her to speak wi th her union representative and told her that he expected her to return to work on January 6, 1992, which she fatled to do Ms. Marja-LiisaKonttinen, was the Property Manager at 25 Grosvenor street during early 1993, and she testified that the Gr ievor is status was "Regular, Evening, Part-time Cleaner in the Janitorial Department" . Ms. Konttinen stated that on February 5, 1993, she wrote a letter to Dr Moodley regarding Ms Baldeo's duties and her ability' to carry them out or to perform modified duties. She sent this letter to Ms Baldeo for forwarding to him and he replied ~n Marth 15, 1993. Ms. Kontt'inen wrote on April 6 " 16, 1993, for clarification, again via Ms. Baldeo, and at the same time instructed Ms~ Baldeo to attend at the ,work place or make contact on April 20th. After considering Dr Mood;I.ey's Job mod i f icat tons, the Employer concluded it was wi 11 ing to meet the modified duties. Ms. Konttinen ,conf irmed that the Grievor did not report to the wprkplace or contact her on April 20th as reque'sted, but telephoned on April 26th when she advised that the notice was too short. [She had returned from attending a family wedding in the area ] She asked to return on May 3rd, on her shift, and to be sent a copy of the modifi.ed c;'lutief? which was sent to 'h,er and, she, was told by telephone (confirmed by correspondence d,a t e d April 29th), that "the night clea'ning supervisor will assist you with your modified job on May 3, 1993~ at 4:30 p.m.. Based_on her response, MS. Ko~ttinen expected Ms , Baldeo to attend. However, Ms. Baldeo did ,not appear and she heard nothing from her between May 3rd and May 18th, 1993 Ms Konttinen confirmed ~h~t the Employer was willing to meet the mod'i fled duties (not to incluqe dusting) as outlined by Dr. Moodley, and that if necessary the Grievor would be moved to a different area and would receive assistance. She stated as well, that both gloves and masks had been available to janitorial staff since before 1990. Ms. Maria Lima replaced Ms. Konttinen as the Acting Property Manager at 25 Grosvenor Stree.t in October ;1.993. Prior to that time she had been the Building Superintendent there from October 1987 and had been the Building Superintendent over Ms. Baldeo from that time until April 1989 when Ms. Baldeo went on an acting assignment. Ms. Lima's norma]. working hours were 8:00 a m. to 4 15 pm, although she often came early and stayed on until 4 30 P m. It was not her responsibility to carry out the direct supervision of the night staff, although she did come in from time to time to inspect certain, but not all, of the floors. The direct supervision fell to the night supervisor Ms Lima acknowledged that she would rarely have had occasion to be in 7 " contact with the Grievor and she 1s not aware of her' mak ing any complaints about the work environment She did, however, recall speaking with her bY telephone on two occasions ini tiated b-y the Grievor in late 1989 and early 1990, the first, prior to her secondment, the second subsequent to it. Ms. Baldeo inquired about a transfer to an office, day 30b because she had a small baby. Ms. Lima testified that she told Hs Baldeo that she could not help her with that but that she would need to gain typing skills and to apply on he'r own for otherpos it ions To ass ist her, Ms Lima forwarded information on a Community College program. She testified that Ms. Baldeo wa,s a 'light-duty cleaner' and in that capac i ty was n,ot responsible for the total cleaning of the area. The Ministry employs heavy duty cleaners as well ",", who have a different set of tasks. Ms. Lima qescribed the area to which Ms Baldeo had been assigned as open, with 25/30 desks plus one enclosed area which contained 2 or 3 machines for the distributiop of cheques, with floor covering of 1/3 tile and 2/3s carpet. She stated that the recycling program began after 1987 a,nd that the material to be recycled was the residual paper from tpe cheque machines which was collected in bags in a closed compartment attached to the machine. It was her understand.ing that tl)ese were normally removed during the qay by office staff and left outside the office area for pick-up by heavy duty cleaners. ,However, she could not confirm that this happened, or that a single ba g did not remain in 'the compartment. She stated that i~ it did, it would be Hs Baldeo's respons'ibi 1 i ty to remove, close and place it i'n the hall Although with respect to the dus1;:ing of the machi!l~s, Ms . Lima, stated that she had 'instructed cleaning staff not to touch equipment. Ms Lima also testified that the building haq been smoke-free for the past 3 or 4 years Ms. Mary Donovan testified at length with respect to the process, consultations and considerations that Confederation 8 Lite took into account in rejecting on six occasions, the Grievor's application, for Long Term Income Protection She also provided the internal and external documentation that was part of the process. The most recent reports of the doctors involved in this matter ~ndicate the following: Dr Inouye, on August 13, 1992 wrote to the Benefits Counsellor at the Ontario Public Service Employees Union .that further assessment from Dr. Tarlo is required ~ and that you should address the question to Dr Tarlo whether Mrs. Baldeo is "totally disabled from performing the duties of an office cleaner W ". Dr Roos on October 12, 1993 wrote to Counsel for the Union that She is physically capable at the present time of many types ot work that do not involve exposure to heavy dust concentrations. This means that she should not work again as a cleaner in heavy dust expos~re, but could in all likelihood continue to work as a cleaner with complete avoidance of heavy dust exposure-if such work could be guaranteed in her trade. She told me, however, that the real.ity of cleaning work involves the imperative of sometimes becoming exposed to heavy dust, whether due to unexpected circumstances or commonplace understaffing. I am not in a position to determine whether such work could be created for her and this must be left fo,r others to investigate. Would she, in fact, become worse as a result of occasional heavy dust' exposures ? One cannot know in the individual, but past experience with others has demonstrated quite commonly, that she would probably have an as t hma flare-up. Would occasional flare-ups have any significant long,-term effects ? We do know from studies of other SUbjects with occupational asthma, that the longer the exposure of an asthmatic to an occupational sensitizer, the more likely is the development of other sensitizations and the overal'l severity of asthma. In conclusion, if occasional heavy dust exposure :a,t her - job remains a remote possibility, then she is totally disabled from cleaning work because (freedom from] exposure to heavy dust may not be possible to guarantee in practice in the cleaning trades. This fits the 9 - definition It. inability as a result of illness. to perform the essential duty of her nJrmal occupation", including possible occasional inadvertent, urgently needed, or unplanned exposure to heavy dust exposure,. On March 31, 1992 Dr.. Tarlo wrote to the Benefits toUnsellor at the Ontario Public Service Employees Union as follows: I have explained to her [Ms Baldeo] that the objective pulmonary funct i on find ings to date do not sl1'pport the history ot severe exacer'bations which soe describes. Her- previous exacerbation of asthma occurring at work was, at a t.ime when she was using only ventqlin for tr.eatment and was not receiving any anti-inflammatory medication. I have explained to her that the aim of ,~ treatmen.t with an,ti-inflammatory agents such as her inhaled steroids i;s to reduce the reactivity of her airways, so t'hat she does not as easily develop airway , narrowing on exposu~e to irr i tant fact,ors such as r dusts, smoke, fumes and sprays, and to allow her to lead a more normal life. The mater ial data sheets on the cleaning agents which you have enclos~d, indicate these to' be irri tants rather than containing chemicals which can cause an immune response In, a patient, with severe asthma or marked increased sensitivity of the airways, these agents could certainly exacerbate symptoms of asthma. However., in patients in whom asthma has been well controlled with medicati,ons, one would expect reasonable toleran~e of such chemicals if they were in levels be~ow the TLV (,threshold limit value] As mentioned, Mrs Baldeo does not feel that she can work again or even travel to and from work without signiticant symptoms. . .to date her objective findings have not been in keeping with severe asthma, but ~ f she is tech,nically able to comply with this test, it may be helpful in further assessing this. If she is found to have mild to moderate airway hyper- reactivity then she should be able to tolerate return to work as a cleaner while continuing her asthma medications If she does return to work, I would be h a pp y tom 0 nit 0 r her peak f I ow rea din 9 s and he r pulmonary function for the first few weeks of her return, to further ensure that she has no significant objective adverse response to this. Dr Tarlo wrote again to the Benefits Counsellor on June 16, 1992, and in her "Opinions and Recommendations" stated the 10 f 0 11.0 win g - this patient does now have objective evidence to suggest a moderate severity of her asthma. It would be expected with this degree of airway responsiveness that she would ha've exacerbation of her symptoms with exposure to ind'ustr ial cleaning agents containing irritants such as chlorine and ammonia in high concentrations or large amounts of dust. However, if these were present in relatively low levels in area with good ventilation, she lik~ly would tolerate these At present her asthma control remains sUb-optimal in that she requires ventolin 2-3 X daily usually I have suggested to her that she increase her pulmicort to 200 mcg 2 puffs 4 x daily and have given her a prescription to use this by turbuhaler since the metered dose inhaler will no longer be available. It is likely that with better control of her asthma she would tolerate levels of dust, smoke and fumes that are present in every day life, such as may be found on public transit. It is difficult to predict with certainly whether she would be able to tolerate return to work as a cleaner. As mentioned, the cleaning agents would be expected to have some irritant effect in patients with asthma. The effect would in large part depend on the concentration to which she was exposed, and the adequacy of her baseline asthma control with medications. Therefore, if work in an office environment without cleaning agents were available, this would be preferable for her Exposure to very high amounts of dust may also trigger symptoms with good control of her asthma, she should be able to tolerate usual office conditions. Dr Epstein stated in his letter of August 11, ~992, to Dr. Moodley: It is difficult to assess if she could tolerate return to work as a cleaner The cleaning agents would have ~n irritant effect on patients with asthma The effect would depend to a large part on the concentratioon [sic] to which she was exposed, and the adequacy of her baseline control with medications. Therefore if work in an office ennvironment (sic] without Cleaning agents was available this would be ppreferable [sic] for her Exposure to high amounts of dust ~an triggeer [sic] symptoms, but with good control of her asthma, sne l.,.. should be abble [sic] to tolerate the usual office conditions. Dr Hoodley wrote on March 15, 1993, having deleted certain 11 I duties on t.he job specification, that In my opinion, Mrs Baldeo should avoid exposure in these spe~ific situations [those deleted] as they may aggravate her asthma The use o,f m~sks and gloves may only partially protect Mrs Baldeo in as far as exacerbations of her ,asthmatic condition is concerned On referring to the job specification, there are obviously a variety of functions that ,she can continue to pertorm, as well as work of a clerical nature if such is available. - It may benefit Mrs Baldeo to engage in a fitness and weight loss program and she ought to be encouraged in this regard. #' The Panel notes that Ms. Baldeo's medication and her work situation varied throughout the complete range of reports, assessments and opiniQns given by the physicians concerned'. Further, there is little evidence with respect to Ms. Baldeo's daily existence Qutside of work with r~spect to triggers which might have af,fected her asthmatic condition, except for her - evidence regarding the housiehold duties and -pr oblems on the transit system and the mention, by Dr. Moodley, of emotional conflict within the household. As well, the personal history which Ms. Baldeo provided to each of the physicians was consistent in the major I overall items but inconsistent in the d,etails and the Panel questions the accuracy of some of the Grievor's perceptions of the Employer's attitude and stance with respect to her return to work. It is noteworthy that the Panel did not have the benefi~ of pulmonary-function readings taken in the workplace over a period of time and Ors.. Roos and Tarlo commen.ted on the la~k of this desirable assessment tool, from their perspective. The Panel does, however, accept that Ms Baldeo is sens i ti ve to heavy amounts of dust (spring cleaning dust as Dr Tarlo called it) , and may be sensitive to dust mites (which are typically found in the home and not the off ice' 12 ------ f certain found in cleaning agents, environment), chemicals smoke, scents and most probably ozone involved in the photocopying process 'l'he Panel has considered the evidence of the Grievor and others, as well as the written and viva voce medical evidence and opinion. There is no lack of medical evidence in this case. However, it is of varied probative value and has, in line with Jones and The Treasury Board. (infra) been given differing weight. The Panel notes that Dr Inouye asse~sed Ms. Baldeo 6 times between June 22, 1989 and December 14, 1990; Dr Tarlo, 4 ,~ times between September 23, 1991 and June 10, 1992jDr. Epstein, on December 6, 1991 and July 30, 1992, and Dr. Roos on July 6 and ~ August 4, 1993, while Dr. Hoodley, her personal physician saw her over the total period numerous times for a number of different medical l?ymptoms. Further, Drs Tarlo and Roos gave testimony, Dr. Moodley was called by the Employer at the insistefice of Union Counsel who, following consultation withdrew his request. Drs. Rewa, Chambers, Epstein, and Inouye were not called. Dr. Inouye deterred to Dr. Tarlo with respect to the Grievor's degree of disability in the occupational setting. Or. Tarlo was able to I apply a number of objective tests over a nine-month period in her assessment of the Grievor's condition. She was also able to assess Ms. Baldeo's approach to the management of her asthma. From her testimony, it was clear that Dr. Tarlo saw her role as broader than simply diagnosis and treatment. An important part of her work with patients is educating and assisting them to manage their condition in order that they may participate as fully as possible in the activities of everyday life. She testified that it would be her preference to treat the asthma outside the work place followed by a trial return to the former work place to assess objectively and to pull the patient out if her condition worsens She also recognized that tl'le course of action taken depends on the practicalities of the situation 13 Dr Roos did not see the Grievor until the summer of 1993 and assessed her within a relatively short space of time The reports of the other medical assessors were ~n important factor in his conclusions Only one of these assessors, Dr Ta;rlo, testified. At the hearing, Dr Roos, as Dr Tarlo, provided the Panel with helpful information with respect to the responses of asthmatic sufferers in general, as well as the responses. of Ms 'Baldeo, specifically During his testimony, he also appeared to gain a better appreciation of the type of work environment in which the Grievor could have functioned, than ne had previously from his earlier exami,nations when he relied solely the ~ on Grievor for his information. For instance, he ~cknowledged that Ms Baldeo "would do well dusting this room [the hear ing room]" ' and that normal cleaning of such a space would not approach the dust levels which one would expect to find in old files, He stated in response to a question from the Panel, that the ozone in the photo-copying process could have triggered the asthma attack in December, 1989, and further, that he did not, in his testing, get ,i irr i tants [irritant fumes and _pungent ,smells 1 as strongly as one would expect". He concluded that Ms. Baldeo's condition had improved during her absence from work based on a compar ison of his test results: and those of Dr. Tarlo, and on Ms. . Baldeo's statement that she had no pre-existing asthma before starting a~ the George Drew Building. He has also concluded that had a job change occurred earlier that she might "not have lost her job and might have continued working". Ha does not refer, in his documentary evidence, to the fact that Ms. Baldeo had several secondments, and one must assume that .she did not prov~de him with this information since his ~ report does not take it into account. Both Dr. Tar 10 and Dr. Roos noted that tl1eir opinions were given without the benefit of tests carried out at the work site In addition, neither had the benefit of the Grievor's Job Specification or the Modified Job Plan offered by the Employer and both relied on the Grievor's description of her work environment and conditions. Further, both differentiated 14 between lid us t" and "high" or "heavy" dust and agreed that placing her in an environment which contained heavy dust would be, in all probability, problematic and that such a situat~on should be avoided Araument Peter Lukasiewicz, Counsel for the Union, submitted that the Grievor, Ms. Baldeo, is and remains disabled from doing her job as a cleaner but 1s able to do work, for which she is qualified, in an of f ice environment ,but, that work has never been offered to her He presented, as well, tha following alternative position: that Ms. Baldeo was disabled from, at least April 1, 1999 until .. ,-' April 27, 1993, when she was offered modified work. This, however, he maintained, only ends the disability on the day the work was offered, and the Grievor should receive benefits for the per iod t'he offer was not available to her; in other words, until April, 1993. No evidence has been produced by the Employer to establish that other gainful occupation was available and offered to Ms. Baldeo. Mr. Lukasiewicz also di$tinguished the disability in the case at hand from the situation in which an individual is suftering a clearly defined disability 'such as the :).oss of a limb, noting that the former may be controllable by medication and can vary in intensity, while the latter cannot be cured The risk of exacerbation of the Grievor.s condition is an aspect which must be taken into account and, he argued, exacerbation of her condition could result in the necessity of increased dosages of medications with their concomitant side effects and a permanent worsening of her condition The Grievor has, Counsel maintained, established the presence of disease which is clearly related to her employme.n,t and has met the threshold to qualify for Long Term Income Protection and should not run the risk of further asthmatic attacks and subsequent hospitalizatiop~~ 'r,h. e Grievor should not, he argued, be required to prove that her health is severely impaired before a claim is allowed. 15 - --- - Angela Rae, Counsel for the EmpIoyer, submitted that the is squarely \ the Union to show that the Grievor onus on was continuously unable as a result of il'l'ness to perform the essential duties of her normal occupation ~uring the q.ualifying period and during the first 24 months of the benefit period. She maintained that only the duties which the Employer considers essential can be deemed "essential". - Ms Rae noted that the Grievor did not return to work as a cleaner or, in any other capacity, after Mar.ch 30, 1990, and that when she was contacted by the Employer, she state~ that she was not coming back, and was appealing the rejection of her claim. Further, the Grievortestified about her sensitivity" to cleaning' agents and this did not coincfde with the different med.ical opinions, nor was it consistent with her report to the doctors. Counsel for the Employer cited a number of other inconsistencies in the Grievor's testimony and her reports to the doctors, sufficient she maintained, to put the Grievor's credibility into question. Nonetheless, Ms. Rae submitted, Ms. Baldeo conceded that there are a number of duties which she can perform -and, if she uses vinegar and water as a cleaning solution, [which she said "got to her at home" but which Dr. Moodley said ~he could use and which Dr. Tarlo testified is rarely an irritant or , allergen] she would be able to perform all the duties as J:[\odified by Dr. Hoodley and considered possible by the Employer. L M~. Rae submitted further that the question of whether or not the Gr ievor is able to carry out the essential duties of any occupation is not, as suggested by Mr. Lukasiewicz, an issue since the Grievor has maintained" that she could work in an office position, (in spite of the asthma attack) The only issue which is relevant is whether or not she meets the test during the- relevant time period. The evidence presented by Dr Roos was derived in large 16 I part, according to Ms Rae, from the description of the work. provided by Ms Baldeo He did not have the job specification to take into account an<;1 he was under the erroneous impression that the asthmatic atta~k.s occurreQ while the Grievor was working as a cleaner When reviewing the job specification during his testimony, the items which he indicated he felt the Grievor could do. This included some that Dr. Moodley had deleted from the list, e.g. vacuuming rugs and upholstered furniture, provided it was undertaken using a certain technique. Both Ors. Roos and 'l'ar 10 indicated that the use of a damp dust rag was also helpful when dusting. In Ms. Rae's view, the credibility of the Grievor was put in ' doubt by her testimony and her unwillingness to accept respons i'b i 1 i ty for her condition, to follow the prescribed medication regime and to get on with her life. This, she submits, is of particular importance since many of the details of the Grievor's medic;:al history and of her work and the workplace on which the assessments are based, are derived from information which s'he herself provided and which had not been confirmed. Ms. Rae disputed thesubmlssions of Counsel for the Employer which suggested that a return to work would result in an increase in the Grievor's level of medication and debilitation. She submi tted that the evidence does not s~pport this and noted that Dr. T a r.l 0 increased Ms. Baldeo's medication in order that her patient would be able to lead a normal life from day to day. Counsel agree that the term "essential duties" of Article 42 in the current Collective Agr,eement is sy~onymous with "each and every duty" of Article 72 of its predecessor and that the date change from "essential duties" to "any occupation is September 30, 1992 However, they disagree with respect to the date that a modified job was offered According to Mr Lukasiewicz it was not available to the Grievor until April 30, 1993, whereas the 17 J ~ l!:mployer maintains that the Grievor was invited to telephone to - discuss her retuJ,':n work, the fir s t time, as soon as thedecl ine in coverage was reported to the Employer by Confederation Life (May 6, 1991). However, she indicated she was not prepared to return and that she was going to appeal the LTIP rejection. Counsel referr~d the Panel to the following cases Union OPSEU (Addario) and The Crown in Riaht of Ontario ( Ministry of Health), GSB 350/8~~ (April 13, 1993) Dissanayake. . " The majority of the Board found that the Grievor's condition of "chronic pain syndrome" existed throughou~ the period of her ~ claim and that when she presented a medically-approved proposal to work 4 hours per day, some. sitting and some standing, the Employer's respcmse was that there were no such positions in the PUblic Service. The Board found further that the ~mployer at no time turned its mind to finding a position which might meet the grievor's restrictions. This case is distinguishable. In Addar io the per iod at i'ssue was the "any occupation" period and in the case at hand the periods under consideration are the "qualifying" and the "normal occupation" periods. Further, in the case of Ms. Baldeo;, the Employer has initiated and attempted to carry out a modifi~d jOb plan~ albeit, not the one which the Grievor would like to have. EInl;>lover Re Larry S. Ren~ud vlc Board of School TrUstees. School District No. 23 (Cehfral ~kanaaan) and Canadian Union of Public Emoloyees, L9cal 523 and British Columbia Council of Human Riahts and Ontario Human Riahts Commission. Seventh Day Adventist Church in Canada, Canadian Labour Conaress. Disabled Peoole for Emolovment Equity. Persons United.. for Self HelD in Ontario (P.U.S.H. Ontario). (19~2) 16 C.H.R R , 0/425,(S C C.) '1' h e Court considered, among other issues, the duty to accommodate, particularly with respect to a union in the case of scheduling work to enable an employee to participate in his 18 !o'r iday-evening, saturday sabbath The case of accommodation of an employee's medical condition is analogous, although the consideration of the specifics in many instances will differ. In his reasons, Sopkinka J . set out the tripartite responsibilities with respect to accommodation - the responsibilities of the employer, the union, and the complainant employee. 'rhe following excerpts have application to the case at hand, and are, in the Panel's opinion helpful in an understanding of this case: Nature and Extent of the Duty to Accommodate (lG) The duty resting on an employer to accommodate the religious beliefs and practices of employees extends to require an .. , employer 'to take reasonable measures short of undue hardship. In O'Malley, suora, McIntyre J. explained that the words "short of undue hardship" import a limitation on the employer's obligation so that measures that occasion undue interference with the employer's business or undue expense are not required. (19] . . . What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case. Union's Duty to Accommodate (38] . . . Toe primary concern with respect to the impact of ~c,commodatin9 measures is not, as in the case of the employer, the expense to or disruption of the business of the union but rather the effect on other employees. The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant Any significant interference with the rights of others will ordinarily justify the uni9n in refusing to consent to a measure which would have this effect. Although the test of undue hardship applies to a union, it will often be met by showing prejUdice to other employees if proposed ~ ~ ..:;~ accommodating measures are adopted. As I stated previously, this test 1s grounded on the reasonableness of the measures to remove discrimination which are taken or proposed. 19 Given the importance of promoting religious treedom in the workplace, a lower standard c~nnot be defended. Duty of Complainant [43] The search for a'ccommodation is a multi-party inquiry Along wi th the employe~ anp the union, there is also a dqty on t,he complainant to assist in securing an appropr ia,teaccommodatiqn The inclus_ion, of I t ,h e com pIa i n. ant i nth e sea r c h f' 0 r I accommodation was recognized by this Court, in I O'Malley. suora. At p 555 [0/3107, para 24777], McIntyre J. stated: Where such reasonable steps, howeve'r;, do not fully reach the desired end, the complainant, in ' the absence of some accommodating steps on h,is own part such a!!) an ?cceptance in this case of part- time work, must either sacrifice ~is reiigious principles, or his employment. L \ To facilitate the sea~ch for an ,acco~odation, the complainant must do his or her part as well. Concol1li tant with a search ~o~ reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled . ~he conduct of the co~plainant must be considered. [44] This do~s not mean that, in addition to bringing to the attention Of the employer the fa(:t.s relating to discrimination, the c 0 mp 1 a i n ant has a d u t Y too 1': i gin ate a solution. While the complainant may be in a posit;ion t!) make suggestio,ns, the employer is in the best pos it ion to determine how the complainant' can be accommodated wi thout undue interference in the operation of the employer's business. When an employer has ini tiated a proposal that .is reasonable, and would, if implemented, ,flilf ill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes 20 - -- the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J in O'Malley, suora. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the' circumstances is turned down, the employer's duty is discharged. OPSEU (Carl stacey) and The Crown in Riqht of Ontario (Minist~y ot correctional Services). GSB 818/84. 820/84. 821/84, (June 20, 1986) Knopf The Board, In this case addressed,. amollg other issues, the .~ question of the weight which should be accorded to medical certificates and cited the following excerpt from Jones and the '":" ~ ' 'rreasury Board. (1981) 29 L A.C. (2d) 349 (Kates) which held that medical opinions, however ~"fide. may not be dispositive of an individual's true condition where that opinion is tainted by a failure of the attending physician to take all material information into consideration. It is immaterial should the adjudicator refuse to attach probative value to a medical assessment whether the shortcoming is attributabl~ to the inattentiveness of the doctor or the lack of candour of his patient. More particularly, should the evidence indicate that relative [~] (relevant] information has been purposely withheld through mis~epresentation by the patient and such information may reasonably have had a bearing on the doctor's diagnosis or might, if considered, have aff,ected his decision to certify the patient I,S absence from work, then I would be compelled to reject such medica~ opinion as Qeing unworthy of weight. In the Panel's opinion Ms. Baldeo did not deliberately mislead the doctors whom she consulted but her wish for a certain outcome may have caused her to omit certain information which could have been helpful to an accurate diagnosis in, the earlier stages Re ~anadian Union of Public Emoloyees (Buick) and The Crown in Ri9ht of Ontario (Ministry of Housin9) GSB 64/79, (Septemberc2S, 1981), Saltman ..' " The Board cons idered the qual i ty of med ical evidence presented by the Grievor to meet the onus which he bore to establish the 21 legitimacy of his illness and found t~at 3 of the 4 certificates were o fo' 11 t tIe or no probative value, one because the physician did not see the Grievor durin<;J the relevant period, and two because they contained hQ informat i'on as to the nature of the illness. This is in contrast to the detailed medical assessments and testimony which were presen:ted in the case at hand, although it illustrates the importance of cat~fully weighing medical evidence. OPSEU (Rhodes) and The Cr6wn in Riqht of Ontario (Ministry. of the Attorney General). GSB 866/90. (Novembe'r 18, 1991). Dissanayake ,~ The Board here dealt with conflicting medical opinion with respect to the issue of whether or not the Grievor was 'totally ~ disabled', without tre benefit of viva voce medical evidence. c. Three out of four doctors c0nsidered that sl1e was unable to return to work and was therefore totally disabled because of her depression, and the Bqard found that "The ov~rwhelming medical evidence supports a fin d i n'g that the grievor wa-s totally disabled", a more clearly defined situatioh than tha instant case provides. 'The medical exper,ts, and therefore the Panel, are without . . the results of objective testing of the Grievor's condition in the workplace, and this would obviously have been preferable. However,. in spite of th~s lack, the Panel has been able to make the following findings: The Gr.ievor fS last day of work was March 30, 1990. Her qual i f ica,t ion period was complete on September '30, 1990; the "normal occupation" benefit period, on September 30, 1992. The "any occupatiQn" benefit period is ,not relevant a,s the Grievor takes the position that she is able to underta~e the position of clerk/receptionist. Ms Baldeo suffers from asthma. Her condition is moderate and manageable. The sole attack which Ms Baldeo suffered while at work in 22 December, 1989, which was one of two attacks referred to between 1980 and 1994, occurred while she was copying old files and it is not clear whether the trigger was the dust from the files, the ozone from the photocopying process or both. At that time she was not working as a cleaner but was seconded to a clerical P9sition The Employer having be~n open to Ms Baldeo's return and having contacted her with respect to her return to work on more than one occasion has made a reasonable effort to have the" Gr ievor return to work. The Grievor did not initiate any discussion with the Employer respecting her return to -her position and was not respopsive to the Employer's overtures. .Ms. Baldeo was for some time unable, unwilling, or both, to .,. accept personal responsibility for managing her condition. Ms. ~aldeo has had the benefit of considerable highly skilled medical assessment, advice and care. .Ms. Baldeo has displayed a continuing reluctance to return to the job into which she was originally hired. This re~uctance has resulted in her focussing on proving her med ica 1 unsu~tability for this work rather than working with her medical advisers and her employer to arrive at a medically-appropriate, modified work plan. .The workplace in which the Grievor functioned as a light duty cleaner was cleaned at leas t 5 times a week and was not a "dirty working environment" and therefore the base level of cleanliness would be reasonably high. The workplace, which consists of offices, is the source of some irritants and allergens which could exacerbate Ms. Baldeo's condition. This would be true in both the cleaning and clerical positions. other venues such as the home environment, and urban settings might also exacerbate her condition. Ms Baldeo should avoid exposure to "heavy du~t" as pointed out by Drs. Roos, Tarlo and Hoodley, and Epstein, and to a number of strong industrial and other cleaning agents as indicated by certain of them The Employer has demonstrated its willingness and testified as to its capability to accommodate the Grievor with a modified work plan within the Property Management Division, Cleaning Services Department and arrived at in co-operation with the Grievor's 23 -.-- -- ---- ..- personal physician It has taken the initiative to arrive at this plan The Grievor testified to her unwillingness to return to her position as an oft ice cleaner T.he Panel rejects Dr. Roos's conclusion in his pre-hearing letter of October 12, 1993 that . . . if occasional heavy dust exposure at her job remains a remote possibility then she is totally disabled from cleaning work because exposure ~o heavy dus~ may not be -possible to guaral)te-e in practice in the cleaning trades This fits the definition ~ "inability as a result of illness .to p~rform the - essential duty of her normal oqcupation", including possible occasional inadvertent, urgently needed, or unplanned exposure to heavy dust exposure'. ':' Ms. Baldeo has taken the position that she is, ab~e to fill the position of clerk/receptionis~. For this reason, the "any occupation" time .per iod set out in Article 42.2.4 is not at issue and the Pane 1 'has limited its consideration to the "qualifying" and the "normal occupation" periods. We have conclude,d tha,t Ms. Baldeo was nQJ;. totally disabled durinq the relevant periods, that is, from March 30, 1990 to s'eptember 30, 1990, and from October 1, 1990 to September 30, 1992, as defined in Articl,e 42.2.4 o"f the Collective Agreement. The Panel accepts that a~thma is encompassed within the term "illness". However, based on the medical evidence it finds that Ms. Baldeo'sasthmatic conditIon, being moderate and manaqeable does not, particularly in light of the Employer"' s willinqness to modify her' duties in a m~dically acceptable way, constitute a " con tin u 0 u,s [uninterrupted] inability" to perform the "essential duties" or "any and every duty" of her normal occupation (regular, part-time, night, light- duty office c 1 e ane r) . We recognize that in any work she undertakes, there will be certain substances which she will need to avoid but these can be minimized through sensible avoidance and the conscientious observance and monitoring of her medical program A heavy concentration of anyone of the substances to 24 -- which Ms. Baldeo is sensitive, or their ongoing presence related to a specific job within an occupation, would indicate that such a position is inappropriate and indeed a risky assignment. We would, for instance place heavy duty cleaning and regular photocopying amongst these. However, we do not place the part- time night light-duty, office cleaning position in this category There is a duty on the Employer to accommodate Ms. Baldeo's condition and it has demonstrated its willingness to -~ make this accommodation by arriving at a schedule of modified duties in consultation with her physician, by its offers to 'C' discuss the details of her position and her return to work with her, and by offering the assistance of the night supervisor in the implementation of the modified plan. Since she has not responded, other than to indicate she wishes to work in an office position, the o~portuhity to test the modified schedule of duties has not presented itself. An Employer maybe very willing to accommodat~ an employee who needs to be accommodated, but for that accommodation to become a reality, the employee must become part of the process. His or her effort, willingness and co- operation are necessary contributions. Part of the process is to ensure that the, accommodation ~rovided is responsive to the proven needs of the employee and if the ~ccommodation is for medical reasohs, that it is within a med lca lly acceptable framework. Since other employees may be affected, there is also a role for the Union. These roles have been delineated in the Renaud case, suora. Should it happen that the Grievor returns to her position of cleaner, the Panel recommends that plans for the testing recommended by Drs Tarlo and Roos should be in ,plac:e in advance ~ and should begin immediately upon her return. For the above reasons, the LTIP grievance, is dismissed. 25 The Board will remain seized and await the direction of the parties with respect to the "dismissal" grievance If the Board has received no further word on the "dismissal" grievance by July 31, 1995, it will consider that it has been abandoned - j -~ Dated at Kiggston ,I .~ this 13th day of March, 1995 H.S. Finley Vice Chair :c.~ ~~~ ~ D.C. Montrose Member "I Partially Dissent" (to follow) E Seymour Member - ) 26 , CHRONOLOGY FROM DATE OF HIRE APPENDIX A ,. 27 - ------ '< , Appendix A OPSEU {Baldeo) and MGS CHRONOLOGY FROM DATE OF HIRE Sep 18 1980 Grievbr hired by Ministry of Government Servites as a regular, part-time, evening office cleaner in the George Drew Building, 25 Grosvenor street, Toronto. Dee 1980 Approximate point in t'ime at which Grievor, as she informed Dr. Roos, began to have asthmatic symptoms ,~ 1981/ Yea~ in which Dr. Inouye~ ~ndicates the Grievor was hQs~italized with pneumbnia (and asthma ?). Aug 1982 Year in which Grievor testified she had her first .. asthma attack which took place at home although the trigger may not have ~een in this location. The Employer has noted the Aug 1982 date. ..,- [These ~ppear to be, the same occurrence and the evidence does not make clear the relationship between the pneumonia and the asthma, nor is it apparent that this was in fact an asthmatic attack. ] Sep 24 19,8~ Starting dat~ of Grievor's first secondment as a ~u11-time, day-ti~e receptionist (to January, 31, 1985) . Jan 31 1985 End of Grievor's first secondment. Feb 1985 Starting of Grievor's second secondment, Legal Services as full-time, day-time office clerk (to Hay, 31, 1985) . May' 31 1985 End of the first part of the Grievor's second secondment. Jun 1 1985 Beginning of second part of Grievor's second secondment, this time as a full-time, day-time receptionist, at Grenville Street (to August 1985). Sep 1985 The Grievor commenced maternity leave Jan 1986 Grievor returned from maternity leave to regular, part-time, evening cleaner position at George Drew Building 28 f Jan 6 to Grievor absent 59 days for medical reasons other "" Apr 1 1986 than asthma. Sep to Grievor absent 66 days due to asthma and Dec 4 1986 situational stress Dec 15 1986 Medical assessment of Grievor by Dr. Rewa of the Employee Health Service because of excessive absenteeism. NoteS: Ms. Baldeo's medical examination was compatible with her medical history; she suffers from asthma; she receives counselling for stress; she has a number of medical conditions which interfere wi th her ability to carry out duties of her position, e.g. exposure to dust and lifting Recommends: exploring alternative placement to avoid high rate of absenteeism and referral to Rehabilitation Branch of Employee Counselling. , Jun 22 1989 First assessmeat report on Grievor by Dr Inouye, in response to her referral by Dr. Hood1ey "for her asthma" in which he notes that she has previously diagnosed asthma and these symptoms have been worse over the past 2/3 months He noted as well that on examination "she appeared well". Dec 1 1989 Note of Dr.Chambers, concerning asthmatic symptoms displayed by Grievor following photocopying of old files in the workplace. He notes trea,tment given and his referral to hospital emergency department. Feb 23 1990 Second assessment report on Grievor by Dr. Inouye, in which he notes cancellation ~f follow-up visits failure to purchase one medication. He specifies' the reason for the visit being "that she has had significant new problems with her asthma recently" and refers to the December episode and the heavy dust encountered. He goes on to comment that certain problems could also be related to anxiety and could be psychogenic, while others could be related to her obesity Mar 9 1990 Third assessment report on Gr i-evor by Dr Inouye, in which he notes the Grievor uses her medication "erratically" and that she failed to read the inhaler instructions so that she has been using it incorrectly. Mar 1990 The Grievor called Dr. Chambers to say that her "asthma was really bad and that she was off work". [Dr Chambers' letter of December 11, 19911 29 I . Mar 30 1990 Grievor's last day worked Ma r 31 1990 The G r i e v 0 r 's d ate 0 f d i sa b i 1 i t Y as not e d by Confederation Life. Apr 10 1990 Notice from Dr Moodley to "Whom I t May Concern" noting that the Grievor "wlii be fit to resume duties on the 1st of May,1990." and that she would benefit from a move to Mississauga [where she resides] ~o that she would not have to travel long distances to work and that, further, her asthma is aggravate,d by "expos-ure to environmental po~lutants as well as multiple allergenic substances including dust ". May 24 199.0 Foqrth asses~ment of the Grievor by Dr. Inouye, in ". which he notes that th~ Grfevor failed to have her prescription refilled although she had 5 repeats and that "a lot of her problems could be a l~eviated if she were to accept the chronic na,tur,e 0 f her disease pr ocess and take her med i cat! ons on a regular bas is. " She asked why she kept on having asthma and Dr Inouye recorded his efforts to educate her in this regard and in the importance of4regular medication Jul 27 1990 Ms. Baldeo asks Dr. Hoodley to fill out Long Term Disability form. AccordIng to him she is phys ically well and. he advised her that she was considered fit for work bearing in mind that she had asthma, and to contact the nurse and doctor at work. Sep 30 1990 End ,of qualifying .period under Article 42 Oct 1 1990 Beginning of 24-month period under Article 42 Dec 4 1990 Fifth assessment of the Grievor by Dr. Inouye, following her hospitalization for minor, unrelated surgery She was.- reassured that her asthma was under cont,rol. Dec 10 1990 Fi fth asse~sment report to Dr. Hoodley from Dr. Inouye , Dee 14 1990 Sixth assessment of Grievor by Dr. Inouye, He notes that "she has been very stable wi th respect to her asthma". Jan 15 1991 Confederation Life memorandum noting receipt of Grievor's claim for LTIP as totally disabled 30 " r ~ Jart 20 1991 Confederation Life Claims Specialist (Cameron Jacklin) recommends against approval of claim following an interview with Ms Baldeo. Feb 26 1991 Medical report on the Grievor sent by Dr Moodley to Confederation Life at its request covering the period from August, 1990 in which he notes that he had been advised by Ms. Baldeo that (a) Dr. Chambers had told her to stay off work -for six months; (b) she had not returned to work on May 1, 1990 , because her employer had failed to find suitable work f9r her; (c) her employer was unwilling to co-operate in placing her in Mississauga and that she could not tolerate the return drive to the downtown location; ". (d)her lay-off had been initiated at work; (e) her employer had told her she was unfit (f)she was in constant communication with "the Employee Supervisor" at work (Ms. Zuska) (g)she was advised that she was not considered to be totally disabled but fit for suitable modified work taking in,to consideration her asthmatic and allergic conditions. He notes throughout the period that she was, coping with what proved to be non-malignant breast disease and conflict at home. She was at times anxious, tense and suf~ering from emotional distress although at the end of the period he comments that "she was physically well" Mar 19 1991 Detailed internal report produced by Confederation Life Claims Specialist, Cameron Jacklin concerning Grievor's situation and eligibility Apr 8 1991 Notice of first decline of benefits to Grievor by Confederation Life. May 6 1991 Letter to Grievor from Barbara Budd, Human Resources Consultant, Ministry of Government Services, requesting Grievor to contact her by May 20, 1991, concerning return to work or appeal of Confederation Life decision Sep 23 i991 Initial assessment of Dr. Tarlo, from The 'Asthma Centre, The Toronto Hospital, Toronto Western Division, reported on October 9 , 1991, to Confederation Life. 31 .. OCit 7 1991 Second assessment of Grievor by Dr Tarlo, noting that the Grievor had not kept records of peak flow rea"dings nor did she come to her appointment with the meter, further, she wa's unable to tolerate body box studies. This resulted in n'o further information being available Dr Tarlo commented as well that Ms Baldeo had requested Queen's Park to find local work for her put had ho~ sought it herself Oct 27 1991 Interpretation by Dr Tarlo of peak flow readings which were submitted by Grievor. -~ Nov 14 1991 Notice of second decline byConfederat ion Life following review of September 23, 1991 medical report of Dr. Tarlo. , Dec 6 1991 Re evaluation and allergy "testing of Grievor by Dr Epstein. Dec 6 1991 Consultation of Grievor with Dr. Chambers, Medical Consultant, Ministry of Government Services, to request a report be forwarded to Confederation Life. Dec 11 1991 Report submitted by Dr. Chambers to Confederation Life Dee 12 1991 Letter from Dr. Epstein to Dr. Hoodley re December 6', 1991 evaluation in which he states that "It would Re linladvisable for her to return to an environment where her asthma is exacerbated She has noticed that when she is exposed to the cold air, dust, photocopier, and old f 11 e s , she develops wh~ezing." and "She has not worked since April 1990 and generally feels better. She is a very allergic patient who should cont i nue wi th environmental control, symptomatic treatment and immunotherapy. He also fjitated that she continues to react to " ragweed, trees, grasses, dust, plantain, weeds, oatmeal, rye, brewer's yeast and corn. [andl to moulds, trees and mi tes 32 -- -- --- -- --- t Jan 3 1992 Review by Confederation Life as requested by Grievor Jan 7 1992 Notice to Grievor by Confederation Life of third decline of benefits Mar 25 1992 Third assessment by Dr Tarlo, of the Grievor, this one at the Grievor's teque$t due to "concerns as to the opinions expressed in my previous letterslt. Dr Tarlo indicated her willingness to monitor the Grievor's peak flow readings and pulmonary function for a period of several weeks on her return to work. Jun 10 1992 Fourth assessment by Dr Tarlo, of the Grievor and she notes, from the Occupational Lung Disease ClJ,nic at the Faculty o~ Medicine, University of .. .. Toronto, that the Grievor now, following testing, has objective evidence to suggest a moderate s,ever i ty of her asthma. Jul 16 1992 Notice of fourth decline of benefits to Grievor 'I, from Confederation Life. Ju1 30 1992 Re-evaluation of Grievor bi Dr. Epstein. Aug 11 1992 Letter from Dr. Epstein to Dr. Moodley in which he s,tates that " if work were available in an office . . ennvironment (~) without cleaning agents was available, this would be ppreferable (~) for her. Exposure to high amounts of dust can triggeer (sic) symptoms, but with good control of her asthma, she should be abb1e (sic) to tolerate the usual office conditions. . . . she looked well. It Aug 13 1992 Dr. Inouye states that he is in agreement with Dr Tarlo and refers the Benefits Counsellor at OPSEU to Dr Tarlo for an opinion as to whether or not the Grievor is "totally disabled from performing the duties of an office cleaner " Oct 21 1992 Notice of fifth decline of benefits to Grievor by Confederation Life Dec 9 1992 Notice of sixth decline ,of benefits ~o Grievor by ,! Confederation Life Feb 5 1993 Request in writing to Grievor from S Hagner- Boyko, Human Resources Consultant at Management 33 ~ ~ Board. secretariat, for her to take an enclosed letter to her physician and for her to forward an up,-t6'-date resume "as per previous requests" I I Mar 15 1993 Letter from Dr Moodley to the Property Management Division in response to theirs of Feb 5 1993, enclosing the job specification with deletions of items which, in his opinion, she should not undertake He notes further that masks and gloves may only partially protect the Grievor and suggests that "It may benefit Mrs Baldeo to engage in a fitness and weight loss program. " . Apr 16 1993 Letter from Employer (Marja-Liisa Kontt then) notifying Grievor that notice has been received ,~ from her physician that she is "able to perform the essential duties of [her] job with minor modifications" and asking her to report to work on April 20, 1993 ~ Apr 20 1993 Grievor was to attend at her workplace on this day but failed. to do so. Apr 26 1993 Grievor telephoned Ms. Konttinen and stated that the notice of return to work was too short. Apr 27 1993 Letter sent to the Grievor by Ms. Konttinen notifying her to return to work May 3, 1993, at 4 30 pm, and that failure to do so would result in the Employer concluding that she had abandoned her position. Apr 29 1993 Ms. Konttinen forwarded modified job specification to Grievor, as requested, and reminded the Grievor of her return to work date, May 3,1993. May 18 1993 Letter from Julie Leggatt, Executive Director, Property Management Division, Management Board Secretariat sent by courier to the Grievor noting that as of May 17, 1993, she had not reported to work and, in consequence, releasing her from employment, effective immediately pursuant to Section 20 of the Public Service Act Jul 6 1993 Initial evaluation of Ms Baldeo's condition by Dr Roos Letter to Dr Epstein Jul 8 1993 Second evaluation of Ms.Baldeo's condition by Dr. Roos Letter to Dr. Epstein following consultation with 34 ~. I -,;, Dr Tar 10'. ;; Aug 4 1993 Third evaluation and opinion by Dr Roos Letter to Ors Epstein and Hoodley Aug 4 1993 Grievor forwarded requested letter from family physician dated April 16 1993, along with her resume, to Marja-Liisa Konttinen. (See request of February 5, 1993) Her re~ume gives no indication of her employment as a cleaner Oct 12 1993 Opinion letter to Counsel from Dr Roos re Grievor's degree of disability, in which he considers the definition of "total disability" and the Grievor's condition, and in which he finds that the lack of a guarantee of avoidance to heavy dust constitutes "total disability" in the Grievor's case 35 -- / O.P.S.E.U. (BALDEO) - and - .! THE CROWN IN RIGHT OF ONTARIO -(MBS/MGS) GSB FILE 3739/92 ETC. PARTIAL DISSENT Edward E. Seymour, Employee Nominee ,":=-..",: __tt. ~- ~Ul"'::: = , ~:=;:""::lf . /. I have read the Majority Award and, although I agree with most of the I findings) expre~sed by the Majority, I find I must write a Partial Dissent. It is my view that the language of the Agreement, with- respect to Article 42 2.4, changed significantly with the signing of the new Agreement, which became effective on January 1, 1992. In the new Agreement, Article 42 2 4 became Article 72.2 4, and I record both in their entirety "42 2 4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform any and every duty of his normal occupation 1 during the qualification period, and during the first twenty-four (24) months of benefit period, and thereafter during the balanG-e of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training or experience " "72 2 4 Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform the essential duties of his normal occupation during the qualification period, and during the first twenty-four (24) months of benefit period, and thereafter during the balance \ , I .- Page 2 of the benefit period, the inability of the employee to perform the essential. duties of any gainful occupation for which he is reasonably fitted by education, training or experience " The change from "each aBd every duty" to "essential duties" is significant, and for this reason I would have granted Ms Baldeo the requested benefits froID; twenty (20) days prior to-the filing of her grievance to April 20, 1993, which was the date Management offered her modified duties '-. / " /~ - ~ /~~~~~ Edward E SeymoUr, Union Nominee opeiu 343 \bldeopdi snt