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HomeMy WebLinkAbout2017-1802.Union.17-11-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-1802 UNION# 610276 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union -and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Arbitrator FOR THE UNION FOR THE EMPLOYER HEARING Jasbir Parmar Allison Kabayama Ontario Public Service Employees Union Grievance Officer Kevin Dorgan Treasury Board Secretariat Legal Services Branch Counsel November 1, 2017 - 2 - Decision I. INTRODUCTION & JURISDICTION [1] This is a decision in respect of an appeal of denial of benefits, filed by Mr. F.D. (or Mr. D). [2] My jurisdiction to address this matter arises under Article 22.9.2 of the collective agreement between the parties. For convenience, I set out the entirety of Article 22.9: 22.9 INSURED BENEFITS GRIEVANCE 22.9.1 An allegation that the Employer has not provided an insured benefit that has been contracted for in this Agreement shall be pursued as a Union grievance filed under Article 22.13 (Union Grievance) 22.9.2 Any other complaint or difference shall be referred to the Claims Review Subcommittee of the Joint Insurance Benefits Review Committee (JIBRC), established under Appendix 4 (Joint Insurance Benefits Review Committee), for resolution. [3] Appendix 4 (attached as Schedule 1 to this decision) states that one of the duties of JIBRC is to “review contentious claims and recommendations thereon, when such claims have not been resolved through the existing administrative procedures” (see paragraph 4(vi)). Of note, the Employer’s Long-term Income Protection Plan (L.T.I.P.) is administered by Manulife (sometimes referred to as the carrier or the insurer). [4] Appendix 4 provides for a subcommittee, whose mandate is to review and make decisions on complaints involving the denial of insured benefits under the central collective agreement. The subcommittee includes an independent third party agreed to by both parties. I am the independent third party agreed to by the parties in the instant - 3 - case. The Appendix also states that decision of the subcommittee is final and binding (see paragraph 6(d)). [5] The parties have developed Terms of Reference for the JIBRC Claims Review subcommittee (attached as Schedule 2 to this decision). For the purposes of the present case, it is sufficient to note the following significant points: i. the subcommittee represents the final stage in the appeal process; ii. the decisions of the subcommittee are final and binding; and iii. decisions must be in accordance with the OPS collective agreement and consistent with the group insurance plans in place at the time the facts giving rise to dispute arose. [6] Also of relevance is a new provision that was added to the collective agreement during the last round of bargaining (or rather was a significant revision of an existing provision). I refer to Article 42.7 of the collective agreement, which provides as follows: 42.7.1 Rehabilitative plans and programs for employees receiving L.T.I.P. benefits, whether with the OPS or another Employer, shall be required where recommended by the Carrier. “Rehabilitative employment” is a rehabilitative plan or program and means remunerative employment while not yet fully recovered, following directly after the period of total disability for which benefits were received. When considering rehabilitative plans and programs, L.T.I.P. will take into account the employee’s training, education and experience. If a person does not participate or cooperate in a rehabilitation plan or program that has been recommended or approved by the Carrier, the employee will no longer be entitled to benefits. If an employee who is in receipt of L.T.I.P benefits is resuming employment on a gradual basis during recover, partial benefits shall be continued during rehabilitative employment. The rehabilitative benefit will be the monthly L.T.I.P. benefit less fifty percent (50%) of rehabilitative employment earnings. The benefit will continue during the rehabilitative employment period up to but not more than twenty-four (24) months. 42.7.2 Where a person does not participate or cooperate in a rehabilitation plan or program that has been recommended or approved - 4 - by the Carrier and the employee is no longer entitled to benefit, the employee will have the ability to file for an expedited review of the decision to end benefits directly to the Claims Review Subcommittee under Appendix 4 (Joint Insurance Benefits Review Committee) within 30 days of the decision to end benefits. The parties agree that such matters will be heard within 60 days by the Claims Review Subcommittee as per paragraph 6(a) of the Appendix 4, unless the parties mutually agree otherwise. [Emphasis added] [7] The key procedural factor to note is that Article 42.7 provides for an expedited process, allowing for a review of a decision to end benefits to be referred directly to the claims review subcommittee within 30 days of the decision to terminate benefits. The instant case comes before me as a result of this expedited process. In fact, this is the first decision under this expedited process. [8] The Terms of Reference identified above were prepared for the standard process. For the purposes of this case, the parties have agreed that they are applicable to the expedited process. [9] It is also useful to note that the collective agreement, in Article 42.2.3, provides for L.T.I.P benefits where an employee is “totally disabled”. Totally disabled is defined therein as follows: 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 or her normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform the essential duties of any gainful occupation for which he or she is reasonably fitted by education, training or experience. II. BACKGROUND & ISSUE [10] The parties have agreed to the following Agreed Statement of Facts: - 5 - 1) Mr. F.D. has been an employee of the Ontario Public Service since March of 2001 and was hired by the Ministry of the Attorney General to work as a Law Clerk. His home position is located in the Legal Services Branch of the Ministry of Community and Social Services/Ministry of Children and Youth Services. 2) Mr. F.D. left the workplace on short-term sick leave on July 22, 2015. 3) Mr. F.D. applied for LTIP benefits on January 24, 2016 and his application was denied. 4) On May 19, 2016, Mr. F.D. filed an Appendix 5 appeal regarding the denial of his LTIP application. 5) On December 1, 2016, Mr. F.D.’s appeal was allowed. Mr. F.D.’s date of disability was determined to be January 24, 2016. Mr. F.D.’s period of total disability was determined to commence on July 24, 2016. 6) On March 22, 2017, Mr. F.D.’s LTD benefits were terminated effective April 19, 2017. 7) On June 23, 2017, Mr. F.D.’s LTD benefits were reinstated effective June 26, 2017. 8) On July 31, 2017, Mr. F.D.’s LTD benefits were terminated. 9) Mr. F.D. filed an Appendix 5 appeal on August 8, 2017 regarding the termination of his LTIP benefits effective July 31, 2017. 10) The claim was referred to the Claim Review Subcommittee on an Expedited Basis for determination on August 9, 2017. 11) Mr. F.D. has not returned to and remains out of the workplace. 12) Mr. F.D. claims that he is entitled to benefits for the OWN OCCUPATION period from July 31, 2017 to present. - 6 - [11] As can be seen from the agreed statement of facts, Manulife determined Mr. D met the test to receive L.T.I.P. benefits beginning January 24, 2016. He has been in receipt of those benefits through to July 31, 2017 (with the exception of the period from April 19, 2017 to June 26, 2017 when benefits were suspended because Mr. D was not in communication with Manulife). [12] On July 31, Manulife wrote to Mr. D advising that his benefits were terminated because he was deemed to be non-compliant with the Mandatory Rehabilitation Program. While not specifically referenced in the letter, Article 42.7.1 provides the insurer with the authority to terminate benefits where an employee does not participate or cooperate in a recommended rehabilitation plan. [13] It is this July 31 decision to terminate benefits which Mr. D has appealed and is at issue in the present case. III. ANALYSIS [14] I have considered all of the documents and the submissions of the parties. Consistent with the expedited nature of this case, I will not set out the documents or submissions in any detail. Rather, I will focus on what I view to be the most relevant factors. [15] The mandatory rehabilitation program at issue was detailed in a letter to Mr. D dated June 26, 2017. The relevant portion of the letter stated as follows: We have decided to refer your claim back to rehab as per the medical information. We will be providing you with Cognitive Behavioral Therapy (CBT) treatment effective the week of July 3, 2017. We will be informing you shortly of the specific dates of treatment. Please note that if you miss any appointments, your file will be closed immediately. - 7 - Based on the medical information, following 8 sessions of CBT treatment, it is expected that you would be able to return to work on a full-time basis. Therefore we will be moving forward with a gradual return to work during the course of this treatment. We will be speaking with your Employer to help formulate a gradual return to work beginning on the week of July 31, 2017. We will provide you with a 4 week Gradual return to work to begin on the week of July 31, 2017 with a return to full time work expected on the date of August 28, 2017. Please note that following the date of August 28, 2017, there will be no further consideration of benefits as the medical information indicates that following 8 sessions of CBT treatment, a return to work is expected. Therefore your file will be closed on the date of August 28, 2017. We will inform you of the Gradual return to work once it becomes available. Please note that any lack of participation by yourself including missed appointments or any missed shifts, will be deemed non-compliance with the Mandatory Rehab provision set out in the policy and your file will be immediately closed with no further consideration given to benefits. [Emphasis added] [16] There is no dispute that Mr. D was informed of the scheduled gradual return to work to begin on July 31, and no dispute that he did not attend at work as directed. [17] The issue is whether that failure to attend at work constitutes a failure to “participate and cooperate in a rehabilitation plan or program that has been recommended or approved by the Carrier”, and therefore justifies termination of benefits. [18] The Union takes issue with the plan that Manulife recommended. It submits that Manulife does not have carte blanche to impose any plan it wants. I agree. [19] Article 42.7.1 does not, on its face, place any express limits on the insurer with respect to how it makes a determination to recommend a rehabilitation plan. However, it must be remembered that compliance with the plan is a requirement for an employee to be able to continue to receive the negotiated collective agreement L.T.I.P. benefit. - 8 - [20] If the insurer’s decision to recommend a plan is not subject to any review, the insurer (as agent for the Employer) could conceivably negate the entire scheme of benefits provided for in the collective agreement, which is to provide income replacement for employees who meet the definition of total disability. If the insurer’s decision was immune to review, the test for entitlement would effectively change to whether the employee was doing whatever the insurer told him or her to do. [21] To protect against such an outcome, at the very least an insurer’s decision to recommend a plan must be subject to review on the basis it is not arbitrary, discriminatory, or made in bad faith. There may even be an argument it needs to be reasonable. [22] The Employer submitted that, in the present case, Mr. D agreed to and accepted the plan recommended by Manulife. The Employer submitted that having failed to object at any point when advised of the plan or during the course of the implementation of the plan, it is not open to an employee to complain about the plan after the fact. [23] To accept this argument would be to impose a positive obligation on employees failing which they would lose their right to be treated fairly by the insurer and their right to receive disability benefits as provided in the collective agreement. Quite simply, to have such a result would require express language in the collective agreement or the plan. There is no such language. [24] I also observe that it is incumbent on an insurer, who seeks to be able to enforce compliance with a rehabilitation plan through the possibility of denial of benefits, to ensure its process of determining the rehabilitation plan can survive arbitral review. It is not enough to seek cover in the actions of an insured employee who has no other source of income and is told ‘comply with what we are telling you or you will get no benefits’. - 9 - [25] In the present case, I find Manulife’s decision to require Mr. D to comply with the rehabilitation plan outlined in the letter of June 26 to be arbitrary. The rehabilitation plan that was imposed was not based on any medical documentation or advice. The Claims Manager told Mr. D on June 23 in a telephone call that he would receive eight sessions of cognitive behavioral therapy (CBT); that he was expected to begin a graduated return to work after four sessions; and that he was expected to return to full-time work four weeks after that. [26] There are medical opinions on file which indicate CBT was appropriate for Mr. D’s disability. However, there is no medical opinion which indicates Manulife’s rehabilitation plan is a suitable treatment plan to enable Mr. D to return to work. [27] The most definitive statements come from Dr. Tang-Wai, the psychiatrist who conducted an Independent Medical Examination (IME) at the request of Manulife. Dr. Tang-Wai, in his report of November 15, 2016, confirmed Mr. D was not medically fit to return to his job at that time. He stated that “after three to four months of ongoing therapy, hopefully, this will be improved enough that he will be able to return to work in a graduated fashion”. He also stated that Mr. D would benefit from a day program if received in a timely fashion, or alternatively “weekly to biweekly therapy for 10 to 14 sessions of a 60- minute duration”. [28] The Employer suggested that there is no requirement for the insurer to follow the recommendations of an IME strictly, and that there should be some deference given to the insurer who was experience in developing rehabilitation plans. [29] I don’t disagree with the general principle that an insurer is not bound to strictly follow the recommendations of any particular medical expert. - 10 - [30] However, where the insurer chooses to reject such recommendations and follow a different path, there should be a reasonable explanation as to why that advice is being rejected. In the present case, there is a complete absence of such. In the Claims Manager’s notes of the “Action Plan” there is reference to the medical recommendation the employee receive cognitive therapy prior to returning to work. However, there is no reference, and presumably therefore no consideration given, to the fact that there was also a recommendation for a certain amount of therapy before that happened. That is a critical factor which was simply ignored. The Claims Manager provides no explanation of how she concluded eight sessions of CBT were sufficient, or that in the midst of those sessions it was appropriate to expect Mr. D to commence a gradual return to work. [31] The Employer submitted that the history of the file should be considered. Mr. D was advised by Dr. Tang-Wai in November 2016 that he should obtain the cognitive behavioural treatment, but he failed to obtain any such treatment for months. It was highlighted to me that there is no obligation on Manulife to provide treatment. The Employer suggested that should be considered in evaluating Manulife’s decision in determining the rehabilitation plan. [32] I do not find that history relevant, given the basis of Manulife’s decision to terminate benefits. They did not terminate Mr. D’s benefits in July 2017 because of his failure to obtain treatment for months. They terminated it because he did not comply with the rehabilitation plan required by them. [33] Where the rehabilitation plan required by Manulife is arbitrary, denial of benefits on the basis of a failure to comply with such a plan is not justified. - 11 - IV. DISPOSITION [34] The appeal is allowed. I find Manulife’s decision to terminate benefits on July 31, 2017 was not in compliance with the collective agreement. [35] As agreed by the parties, I remit the matter of remedy back to them to discuss. However, I remain seized. Dated at Toronto, Ontario this 9th day of November 2017. Jasbir Parmar, Arbitrator - 12 - - 13 - - 14 - - 15 - - 16 - - 17 - - 18 -