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HomeMy WebLinkAbout1982-0421.Stefaniuk.83-06-13Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Janet Stefaniuk) Grievor - And - The Crown in Right of Ontario (Ministry of Health) Employer R.J. Roberts Vice Chairman E.J. Bounsall, Ph.?. Member P.H. Coupey Member For the Grievor: G.A. Richards Grievance Officer Ontario Public Service Emp For the Employer: M. Milich Staff Relations Officer Civil Service Commission Hearing: June 8, 1983 loyees Union -2- This is a case 'of first impression involving interpretation of Article '53.2 of the collective agreement between the ~parties. This provision reads as follows: 53.2 Where 'an employees is absent by reason of an injury or an industrial disease for. which an award is made under the Workmen's Compensatio-n Act, his salary shall continue to be 'paid for a period not exceeding three consecutive months' or a total of 65 working days where such ~absences are intermittent, following the 'date ~of the 'first absence because 'of the injury or industrial disease, and any absence in respect of the injury or industrial disease shall not be charged against his credits. The 'issue raised by the 'parties was whether a recurrence of a pre-existing shoulder injury which had been the subject of a previous Workmen's Compensation Award sufficed to "trigger" under Article 53.2 a second 65-day period of absence at full pay. For reasons which'follow, we deny the grievance. We found the evidence fin this case to be somewhat unus~ual, in the sense that the 'evidence required us to interpret Article 53.2 without the benefit of any evidence of past practise, even though 'there must have been consider- able such~'evidence within their reach. It appears that Article ~53.2 has been in existence fin its present state since 1962. It seems to us ~that in its more than 20 years . . ^.. .- ,..,.._ -3- of existence, Article 53.2 must have been applied in an' open and notorious manner in many similar circumstances to those of the present case. Nevertheless, for some reason, evidence of past practise was excluded. Most of the evidence that came before the Board was set forth in an agreed statement of facts, withattached exhibits. The grievor gave brief tes~timony, primarily relating to the incident leading to theerecurrenceeof her shoulder injury. Based upon this evidence, we 'find.the relevant facts to be as follows: Then 'griever is a Psychiatr~ic Nursing Assistant 2 at the Queen Street Mental Health Centre. This job places certain physical demands upon the~~grievor. As part of her job she 'must, for example, assist in putting heavily sedated patients into and out of bed. Some of these patients can weigh in excess of 200 pounds. As part of her job, the grievor also must res~train any of her patients who become aggressive; otherwise, as the grievor put it in her testimony, "I could get killed." On March8, 1876, Ethel 'grievor suffered a separated shoulder. It seems that then grievor was struggling to put a patient to bed. The patient grabbed her wrist and apparently twisted it in such a manner as to cause this type 'of injury. The ~injury was very painful. The grievor could not work. She was off for a total of 33 days. She received an award under~ theeWorkmen's Compensation Act. -4- The ‘cEaim number establish&by the Workmen% Compensation Board for the Award was 10645337. It seems tha~t ,-the griwor's shoulder never was the same. She ~experienced recurring bouts of pain in her left shoulder. The pain was so severe as to require her to be absent from work until it subsided. In 1977, for example, the grievor was required to be absent from work for a total of 41 days. This absence was covered by a Workmen~'s Compensation Board Award which was issued under the same ~claim number as that established for her original injury. Through'the years, these absences became aafairly consistent pattern with the grievor. For example, in 1978, 1979 and 1980, the grievor was absent, respectively for 18, 76 and 16 days. In each~ year, her absences were covered by Workmen's Compensation Board Awards bearing the claim number for her original injury. On May 17, 1981, anoth~er act of aggression by a patient caused another~ recurrence of the grievor's painful condition, It seems that at 11:30 p.m. that evening, a patient whom the 'griever was assisting to her room turned to strike the 'griev~or, twisting the griwor's left shoulder. While the 'pain wars inten'se, the grievor completed her shift. Apparently, she 'took some pain killing medication to help -5- her make it through the night., The same medication helped the grievor get through her next shift, which commenced at 11:OO p.m. on May 18. It seems that for 58 work~ing days thereafter, i.e., from May 19, 1981 to August 11, 1981, the pain from her shoulder prevented then grievor from working. The grievor explained in here testimony that the pain killing medication she took induced drowsiness which could be dangerous in the kind of position she occupied. There was no doubt that her position required a considerable degree of alterness. The 58.days of absence were covered by a Workmen's Compensation Board Award under the claim number of her original injury. It seems that throughout the totality of her periods of absence from the date of her original injury, the Employer treated the grievor as if her absences related to a single injury. This meant that only the first 65 working days of her absences in a period 1976-1981 were paid at full salary under Article 53.2. The Employer defended this approach on the ground that Article 53.2, properly interpreted, indicates that when the parties negotiated its terms they intended to leave it to the Workmen's Compensation Board to determine when an absence was due to a pre-existing injury or a new injury. So long -6- as the Workmen's Compensation Board made its award under the claim number originally assigned to the pre-existing injury, the Employer submitted, the absence of the employee was not due to an injury triggering a new 65-day period of full pay under Article 53.2. It seems to us that this is an interpretation which the words of Article 53.2, standing alone, cannot bear. We must confess that it would seem strange to us that any two parties to a collective agreement would leave such an important determination as this to the decision of a third party~ having absolutely no responsibility toward them. At the minimum, it would take clear language indeed to convey this intention. But there is non such 'clear language here. The only determination that Article 53.02, of the collective agreement clearly leaves to the decision of the Workmen's Compensation Board is whether an Award is made for the injury or industrial disease causing the absence in question. This is a far cry from the position urged by 'the Employer. No clear language exists within the four corners of Article 53.2 to indicate that the parties intended to leave to the Workmen's Compensation Board the decision as to whether an absence was due 'to a pre-existing injury or a new injury. -7- The 'knployei suggested that if its position was not accepted the parties~ never would have negotiated specific language 'relating to intermittent absences; since each absence miglif be'defined as relating to a new injury for re-injury) that once again starts the "clock" of Article 53.2 running. We disagree, First of all, it seems to us that there can be a number of reasons for an intermittent absence 'following an injury, e.g., absences for therapy, additional treatment, further surgical procedures being made on a progressive basis, etc. Theremight,beoneoth~erreason to provide for intermittent absences, and this is the most important reason for purposes of this case. The reason is that it is possible that in the performance of his or her ordinary assigned duties in the workplace an employee with a pre-~existing injury that has not healed might aggravate that injury and hence require intermittent periods of absence. Certainly it would be correct to conclude that where a pre-existing injury is aggravated in this sense, the resultant absence does not trigger the running of a new time period under Article 53.2. While ~the aggravation of a pre-existing injury would not trigger the running of another 65-day period of -8- full salary under Article53;2, ,it seems to us that a ~bona: :fide ~recurrence~ 'of a, -- "healed" pre-existing injury .,. would. In order to constitute a bona .fide recurrence' -- of a “healed" injury, it seems to us that two conditions would have 'to be 'fulfilled., First, the 'original injury must have "healed" in the 'sense of there being no~reaso~nable expectation of further aggravation or repetition .of the injury, in the performance by the employee of his or her usual course of assigned duties. Secondly, the event causing the recurrence would have to be extraordinary, in the 'sense of being outside the usual course 'of things to be expected in the performance of the assigned duties of the employee. Absent satisfaction of these two conditions, it seems to us that only an aggravation of the pre-existing injury would have occured. It is for this reason that the grievance herein fails. On the 'facts of the 'present case all that occurred was an aggravation of the griever's pre-existing injury. The 'evidence~indicated that the original medical problem of the grievor, i.e.~, the separation of her shoulder, never healed in the 'sense that we would require. From the time of her injury onward the grievor was absent on numerous occasions due to the pain emanating from this injury. It seemed that there was no expectation.that the recurring pain ever would leave the grievor. Certainly it did not between~ the 'date of thee original injury and -9- the date of the incident leading to the absence involved in this grievance. Secondly, the 'evidence disclosed that the absence which is at issue in this arbitration was not caused by an extraordinary event in the workplace of the grievor. As the grievor stated in her own testimony part of her job is to restrain a mental patient when he or she becomes aggressive. This seems to be what occurred here. A patient grabbed the griever's wrist, twisting back her left shoulder. There was no indication that this was out of the usual course of things to be anticipated in the performance of the grievor's duties. There 'was no evidence, for example, that the force with which the patient grabbed and twisted the grievor's wrist was exceptionally great or violent. For all that the evidence discloses, the grievor was the victim of a minor act of aggression which well might be expected to form part and parcel of her day to day working conditions at the 'Queen Street Mental Health Centre. The grievance is dismissed. DATED AT London, Ontario this 1983. Vice-Chairman 8:33DO 8:3320 "'I dissent" '(Dissent to follCX%') P.n. Coupey