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HomeMy WebLinkAboutUnion 19-02-04IN THE MATTER OF AN ARBITRATION BETWEEN: Legal Aid Ontario and OPSEU (Union Grievances re: APS) Before: William Kaplan Sole Arbitrator Appearances For the Employer: Brett Christen Rae Christen Jeffries Barristers & Solicitors For the Union: Christopher Bryden Ryder Wright Blair & Holmes Barristers & Solicitors The matters in dispute proceeded to a hearing in Toronto on October 1, 2018 at which time the parties agreed to conclude the case by written submissions. That process was completed on January 28, 2019. 2 Introduction By agreement of the parties, a number of grievances were consolidated all raising the same issue: the appropriateness of the Attending Physician Statement (hereafter “APS”) that Legal Aid Ontario’s third-party adjudicator – Workplace Medical Corporation (hereafter “WMC”) uses to adjudicate short-term disability claims (hereafter “STD”). Legal Aid Ontario (hereafter “the employer”) has offices across Ontario and, by and large, employees work in an office environment. STD benefits are funded by the employer but administered by WMC pursuant to an “administrative services only” agreement. Prior to 2018, the agreement was with Oncidium. In 2018, WMC was engaged. The dispute in this case concerns aspects of the APS used to administer the STD plan. Part 1 of the form contains the consent. Part 2 is required for all absences of five or more consecutive days. And Part 3 is mandatory for absences greater than ten business days. After a number of unsuccessful efforts to resolve the dispute (although some changes were agreed upon), the parties agreed to refer the remaining outstanding matters to arbitration through written submissions. It should be noted at the outset that the union has reserved its right to proceed with certain outstanding individual cases challenging the appropriateness of the Oncidium APS. Issues in Dispute There are five issues in dispute: 1. Must consent under Part 1 relate to information from only one health care provider? 3 2. Must WMC contact the employee each time it intends to contact the health care provider for whom consent has been provided so that the employee may revoke his or her consent? 3. Are the following questions permitted? Date symptoms first appeared or when accident happened (d/m/y) Has patient had same or similar condition previously – Yes/No. Please state when. 4. Can Part 3 of the form be mandatory for absences of ten days or more? 5. Whether mandatory or optional, can Part 3 request diagnosis? Some Background Information Employees are entitled to six paid days for incidental illness, which is defined as illness of four consecutive days or less in duration. Employees are also entitled up to 17 weeks of STD per disability and recent related disability. An APS must be provided when application is made for STD benefits. The Collective Agreement A number of collective agreement provisions are engaged including the following: Article 18.02 requires that employees who are absent for more than four consecutive days because of illness or injury provide an Employee and Attending Physician Statement to the employer’s disability specialist for adjudication (the APS). Article 18.02(d) provides that “the treating physician shall indicate the duration of the short-term disability leave on the absence assessment forms,” while Article 18.02(e) provides that “in situations where an employee’s treating physician does 4 not provide satisfactory information with respect to an employee’s prognosis,” the claim may be adjudicated by an independent medical practitioner. Union Submissions In the union’s view, this case was straightforward. Referring to numerous authorities, the union took the position that the law was settled. The confidentiality of personal medical information was among the most significant privacy rights recognized in law. The cases established that employers were only entitled to the information needed to adjudicate specific STD claims and that the contractual provisions that gave them access to that information must be strictly construed. In this case, the collective agreement could not be more clear. It was important, the union argued at the outset, to point out that the information being sought was for the adjudication of STD claims; claims which were necessarily short term and which more often than not resolved themselves. Put somewhat differently, STD claims generally did not raise accommodation issues where more extensive medical information was often necessary to discharge the accommodation obligation. While it may be more “efficient” and/or “expedient” from the employer’s perspective to obtain additional information, desires for efficiency and expediency did not trump privacy interests reflected in the case law and the Personal Health Information Protection Act (hereafter “the Act”) that explicitly provided for informed and knowledgeable consent, and the right to withdraw consent. Notably, Section 30(2) of that Act provided that “a health information custodian shall not collect, use or disclose 5 more personal health information than is reasonably necessary to meet the purpose of the collection, use or disclosure, as the case may be.” Applying these general principles to the issues raised in this case, the union made the following submissions. First, it was simply inappropriate for the APS form to refer to multiple health care providers. The consent had to be limited to the health care provider who was filling it out and if medical information was sought from more than one health care provider, the cases were legion that individual consents were required. Reference to “providers” would allow unfettered access to other health care providers at the sole discretion of WMS and was, by definition, contrary to any notion of informed and knowledgeable consent. In terms of subsequent contacts to the health care provider, the union did not object to this per se provided that the employee was advised that further information was being sought and the employee had the opportunity to revoke his or her consent. Summarily stated, the union agreed that the law did not require that a new consent be obtained prior to subsequent contact, but that the employee had to be notified that there would be a subsequent contact to so that he or she would have the opportunity, if they wished, to revoke their consent. The union further took the position that the following questions were overly broad: Date symptoms first appeared or when accident happened (d/m/y) Has patient had same or similar condition previously – Yes/No. Please state when. In the union’s view, this information was simply unnecessary to adjudicate STD claims. The union conceded, however, that the information in the second question might be necessary for 6 compliance with a governing LOU (p. 56 of the collective agreement) but that meant that the questions had to be consistent with it, meaning that the health care provider could only be asked whether the employee had suffered the same illness within the preceding ninety days. Finally, the union objected to the mandatory nature of Part 3 of the APS, taking the position that it had to be optional in all cases and that in no circumstances could it require diagnosis. In the union’s view, the employer had not established that the information being sought was required for each and every absence of ten business days or more and the collective agreement and authorities did not authorize diagnosis disclosure. This information was simply unnecessary to adjudicate an STD claim. There was no legitimate need. There was no demonstrated need. There was no justification. It was unlawful. The collective agreement entitled the employer to information supporting specified absences. It did not grant management a license entitling it to require an employee to fill out a form providing blanket and broad disclosure. Certainly there was no entitlement in any circumstance for information about diagnosis. Employer Submissions The employer acknowledged that it only had the right to an employee’s confidential medical information to the extent allowed by statue, the collective agreement and governing authorities. It fundamentally disagreed, however, with the union’s description of the actual depth and scope of management’s rights. 7 Turning to the specific questions needing answers, the employer first took the position that there was no legal prohibition preventing an employee from consenting to the disclosure of medical information from more than one health care provider. As the consent in the APS was clearly for the current claim for STD benefits, it should, management argued, be for all involved health care providers. This did not violate the Act and its requirements for knowledgeable and informed consent as the APS made it clear that the consent being provided related only to the current claim for disability benefits. The employee would know exactly who was treating them in respect of their illness and injury, and those would be the health care providers who could be contacted. It only made sense that WMC have access to information about all examinations, laboratory tests, speciality reports, and reports of other health care providers when adjudicating a claim. It would be inefficient to require employees to provide new consents every time treatment is received by a new or separate health care provider. More importantly, there was no legislative or other requirement mandating that outcome. And, perhaps most important of all, the employee had the option that he or she could exercise at any time to revoke their consent. If the union wished to negotiate requirements for multiple consents, it was free to do so. In the meantime, the employer argued that it was legally and factually significant that there were no such restrictions in the collective agreement or the Act precluding it from seeking employee consent to contact all health care providers. 8 Likewise, the employer argued that there was no legal requirement that WMC advise an employee who has already provided consent with respect to subsequent contacts. The employee had already consented to the disclosure of information relating to the specific claim. No purpose would be served by requiring a follow-up consent when seeking further details or clarification. The law did not require it, and it would be completely impractical and inefficient. It would not further the adjudication of the claim, and was unnecessarily burdensome to make the request of the injured or incapacitated employee. The employee’s privacy rights were, in any event, secure as the employee had, in any event, the right to revoke consent at any time. Insofar as the other issues were concerned, questions about timing of accident or illness were a necessary corollary of adjudicating benefits. The employee was making an STD claim for a particular illness or injury and the employer was entitled to know when it occurred. The date either occurred is the date entitlement to benefits began for that is the date that the employee became unable to work. It was directly material to a claim for benefits and it was indispensable information. It was also explicitly authorized by the collective agreement. Article 18.02(a) was straightforward in its reference to “date of onset.” It, therefore, required release of this information relating to the specific claim. The LOU provided the legal authorization for questions about claims concerning the same or similar illnesses within the last ninety days. There were, in the employer’s estimation, sound reasons in certain cases to request this information separate and apart from the terms of the LOU such as, for instance, where doing so could assist in the accommodation process. 9 Finally, with respect to the mandatory nature of Part 3 dealing with illnesses of ten days or more, the employer argued that all of the information sought in that part was necessary to effectively manage the STD program and to assist the parties in giving effect to their accommodation obligations. Depending on the circumstances, a continuum of information may be necessary. There was no legal prohibition restricting management from seeking additional information and an employee may, in fact, wish to volunteer it, including details about diagnosis where it might be of assistance, for example, in facilitating the accommodation process. Indeed, there was no dispute that under the collective agreement the employer was entitled to prognosis. The employer further argued that prognosis was a prediction of the course and end of a disease and that this, therefore, encapsulated information about diagnosis. Accordingly, provided it was not coercive, the employer was entitled to ask an employee to volunteer information about diagnosis. Decision Both parties made thorough submissions about the law and the cases referring at length to numerous authorities. By and large, the law is settled as set out in Hamilton Health Sciences (2007) 16 LAC (4th) 122 (Surdykowski). What follows are my findings and direction consistent with the relevant terms of the collective agreement, applicable statutory provisions, and governing authorities that have previously explored these issues at length and in detail and which have been extensively reviewed. 1. The consent in the APS must be singular, not plural. It is necessarily limited to the health care provider who is being asked to fill out the form. An employee must be properly 10 informed about the extent of the consent that is being requested and that means that it must be clearly indicated that consent is being sought from a particular provider, not unknown providers. This issue is easily resolved. The form can inquire whether there are multiple health care providers and can request that they be identified and that consent for contact be given. It is up to the employee to give his or her consent, of course. And a decision not to do so may affect the adjudication of the claim. 2. Obviously, after the APS is signed, the health care provider can be contacted, and this includes follow-ups. A new consent is not required for a subsequent contact, but the employee must be notified in advance that WMS intends to make a subsequent contact so that he or she can, if they wish, revoke their consent. It is axiomatic – given the privacy interests that are engaged – that employees, to quote Arbitrator Surdykowski, never “be cut out of the communication loop.” 3. The APS can ask when the current illness began – “date of onset” as it is referred to in the collective agreement – or injury took place or symptoms of injury became manifest. That is a self-evidently reasonable question and a necessary trigger for establishing benefit entitlement. But to ensure compliance with the LOU, the second question must be modified to be limited in this way and to qualify by it by referring to the previous ninety days. 4. The APS can optionally request the sought information in Part Three with the exception of diagnosis. The employer may request information about prognosis. Prognosis does not include diagnosis. In no circumstances – the cases are legion – is the employer 11 entitled to diagnosis. Providing information about diagnosis cannot be a precondition to obtaining STD benefits. Accordingly, the employer is prohibited from demanding, and Part 3 of the APS may not require, mandatory disclosure of the information sought therein. There may, however, be individual cases where additional information is required to adjudicate STD claims, or for accommodation purposes. That information can only be sought on a case-by-case basis through an appropriate exercise of discretion, meaning where strictly necessary to adjudicate the claim or to assist with accommodation, a process that necessarily involves the individual, the union and the employer. In general, however, the employer is only entitled to that medical information that is required for the adjudication of the STD claim, and that does not include diagnosis. I note that the employer has the right under Article 18.02(e) to refer an employee for an independent medical examination should it be concerned about the bona fides of an STD claim, a concern that was raised in the employer submissions. Conclusion Accordingly, and for the foregoing reasons, the APS is to be amended so as to comply with the directions set out in this award. 12 At the request of the parties, I remain seized with respect to the implementation of this award. DATED at Toronto 4th day February 2019. “William Kaplan” William Kaplan, Sole Arbitrator