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HomeMy WebLinkAbout2023-00388.Union (CRS).24-08-02 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2023-00388 Union #6971889 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 (CRS)) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Marilyn A. Nairn Arbitrator FOR THE UNION Anson Cai Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING July 12, 2024 - 2 - Decision [1] This matter convened in my capacity as the independent third-party Chair of the Claims Review Subcommittee of the parties’ Joint Insurance Benefits Review Committee (“JIBRC”), set out at Article 43 and Appendix 4 of the collective agreement. I was also provided with the terms of reference for the JIBRC Claims Review Subcommittee dated July 20, 1999 with addendum dated September 7, 2000. [2] The disputed claim is for long term disability benefits for the period March 15, 2023 to June 27, 2023. [3] The parties filed a partial agreed statement of facts (“ASF”) as well as relevant documentary materials, including a statement from the Claimant. One revision to the ASF was made on consent in paragraph 8, extending the date of the claim to June 27, 2023. I have also revised the ASF to refer to “the Claimant”. The ASF provides: 1. The Claimant was born on September 13, 1989. The Claimant has been an employee of the Ontario Public Service from since May 6, 2013. The Claimant’s home position is Judicial Secretary (OAD 9) at the Brampton Court House. Since 2018, The Claimant worked on various temporary assignments and went on pregnancy and parental leave [in] 2020. At the conclusion of her pregnancy and parental leave, the Claimant’s temporary assignment came to an end effective February 14, 2022 and she was expected to return to her home position at the Brampton Courthouse. 2. The Claimant did not return to her home position in February of 2022, but instead commenced a Short-Term Sickness Plan leave. 3. On October 28, 2022, Manulife advised the Claimant of its decision to approve the LTIP claim for benefits during the OWN OCCUPATION period based on a disability start date of February 12, 2022. LTIP benefits commenced on August 23, 2022. The change of definition date is August 12, 2024. 4. In February of 2023, Manulife contacted the Claimant regarding the initiating of a gradual return to work at the Brampton Courthouse. The Claimant declined the proposed rehab plan stating that at the time, she was unable to participate in a gradual return to work program. 5. On March 1, 2023, Manulife advised the Claimant that benefits will cease on March 15, 2023. The reasons provided by Manulife were that the Claimant no longer met the definition of totally disabled under the plan and they were not participating in a gradual return to work. 6. On March 10, 2023, an Appendix 5 form dated March 9, 2023 to initiate the JIBRC Appeal was submitted. - 3 - 7. Additional medicals post-dating the initial claim denial were provided to Manulife as part of the appeal process. The date of the last medicals on file is May 30, 2023. 8. The Claimant claims that they are entitled to benefits for the OWN OCCUPATION period of March 15, 2023 to June 27, 2023. [4] The Claimant states that between 2015-2018 she was the Group Leader for a team of 6-8 judicial assistants in her home assignment. The Claimant asserts that she was subjected to bullying, passive-aggressive behaviours, discrimination and taunting by co-workers, based on her age and race. The Claimant further asserts that management did not act to stop the harassment and discrimination and actively sought to have her “let it go”. In the result, the Claimant states that she experienced recurring panic attacks, severe anxiety, and that she suffered depression. Following her return from maternity leave in February 2022 she was to report to her home position but was unable to do so due to anxiety. Attempts to move to various temporary secondments, requiring the agreement of her manager, were denied due to staffing shortages in her home assignment. [5] The Claimant disclosed to Manulife that she had not filed any grievance concerning the Employer’s alleged failure to respond to the alleged harassment and discrimination out of fear of repercussions. Nor had a complaint been filed alleging a breach of the Employer’s Workplace Discrimination and Harassment Policy. [6] The Claimant indicates that, in July 2022, the Employer advised that her team had been “completely changed”. The Claimant understood that at least two individuals whom she asserted had harassed her, remained. In August 2022, her family physician recommended that the Claimant avoid her home work location but that the Claimant could be returned to work at a different location. [7] In September 2022, the Employer advised Manulife that staff turnover at the Brampton Courthouse had been significant such that only one individual from the Claimant’s previous work group remained. Management staff had also changed. The manager indicated to Manulife that he would provide support in a RTW process and reported that he had offered a trial period with tracking and daily check-ins in order to respond to any concerns in a timely way. [8] On October 28, 2022, LTD benefits were approved from August 23, 2022, the LTD date of commencement. The medical at that time indicated that the Claimant was anxious and stressed, had poor sleep and recurrent panic attacks thinking about a RTW to the Brampton Courthouse. The Manulife letter to the Claimant noted that the group policy contained provisions regarding rehabilitation and requiring submission of continuing proof of claim. The Manulife file records that payments were approved to January 31, 2023 and there was a referral of the file to initiate return to work (“RTW”) focussed treatment. [9] In an interview with a Functional Rehab Specialist (“FRS”) from Manulife on November 24, 2022, the Claimant confirmed that she was able to perform the duties and functions of her own occupation. When asked what she would need in - 4 - order to RTW she responded that she would need to know that the staff that tormented her were no longer there, that she would not have to work with them, and that management would respond to and document her complaints/concerns. [10] Manulife’s Mental Health Specialist noted on November 29, 2022 that it was unclear whether the condition suffered by the Claimant was medical or non- medical, given the primary barriers were workplace issues. A referral to Homewood Health to provide focussed treatment prior to a graduated RTW was recommended. [11] A psychological assessment was conducted by a Clinical Psychologist at Homewood Health on January 13, 2023. It was relied on by Manulife in determining its proposed rehabilitation plan. That report concluded: Presently, ... The most appropriate diagnosis is major depressive disorder [MDD], single episode, in full remission. [12] By way of summary the assessment concluded: [The Claimant] is a pleasant 33-year-old woman, who is experiencing good mental health at present but is concerned she will be forced to return to her previously untenable work environment where she experienced a major depressive episode. She is bright, motivated and wishes to protect her mental health. As she has shown she can work effectively in different secondments, I do not recommend she return to her previous position. … [The Claimant] does not currently require psychotherapy. This might change if she returns to her old place of work and reexperiences a major depressive episode. If that happened, 10 sessions of CBT with a clinical psychologist would be appropriate. [The Claimant] is currently able to return to work effectively but not at the same workplace. I do not recommend she return to her previous position. (emphasis added) [13] The peer review of that assessment noted: …Current diagnosis is major depression in full remission. Concern was raised with risk of relapse on return to the prior work location, with no treatment recommendations should claimant transfer to another position/location but a recommendation for 10-sessions of psychological treatment to minimize risk of relapse and enhance coping skills should claimant return. The current recommendation is in line with the impressions of the treating family physician while acknowledging intact functional capacity for work at present. [14] An email to Manulife from the Clinical Lead of Specialized Services and Complex Care at Homewood Health dated January 27, 2023 confirmed that if there was a - 5 - RTW to the Claimant’s previous position, 10 sessions of psychological treatment to minimize the risk of relapse and enhance coping skills was recommended. [15] The Claimant’s family physician had referred the Claimant for a psychiatric assessment, which was completed through CAMH on January 30, 2023. Manulife deferred its decision on a rehab plan pending receipt of that report. That assessment diagnosed a major depressive disorder, single episode, in full remission. [16] The psychiatric file notes reflect that the Claimant reported that she needed a consultation with a specialist “certifying that she is not able to return to the specific workplace for mental health reasons”. That report concluded: Patient is a 33-year-old woman who experienced bullying in the context of her workplace from 2015 until 2018. She experienced increased anxiety panic attacks and also depressive symptoms following the bullying and harassment. She was now asked to return to the same workplace and is hesitant because she is afraid that this might severely affect her mental health as it did in the past. The symptoms that the patient described to me fulfil the diagnostic criteria of a generalized anxiety disorder as well as a panic disorder and major depressive disorder with suicidal ideation from 2015 until 2018. Currently she is in remission. In order to prevent that she might relapse it should be considered to allow her to work in another work environment. From what she explained the work environment she had to work in from 2015 until 2018 was toxic and responsible for the symptoms she experienced. She reported that at both workplaces she worked from 2018 until 19 and 19 at 2020 she was doing well and did not experience those symptoms. I therefore would at this point advise not to force her back in the same work environment that was anxiety provoking. (emphasis added) [17] The FRS at Manulife noted the Homewood Health recommendation not to return the Claimant to the same workplace and contacted the Employer to determine if it could place the Claimant elsewhere. The Employer expected the Claimant to return to her home position if no longer totally disabled from her own occupation. Upon receipt of the Employer’s response, the FRS confirmed that Manulife would move forward with a graduated RTW Plan for the end of February 2024. [18] As noted in the ASF, on February 16, 2023, Manulife contacted the Claimant to initiate a RTW to the Claimant’s own occupation at the Brampton Courthouse. The FRS advised the Claimant that the only position available was her job at the Brampton Courthouse. The rehab plan proposed by Manulife included a gradual RTW and funding of the counselling treatment recommended by Homewood Health. During a gradual RTW supported by the LTD Plan, disability benefits can continue in proportion to the graduated RTW plan. During discussions, the FRS also offered to facilitate discussions with the Employer regarding the RTW. - 6 - [19] In that discussion, the Clamant questioned a decision that would recommend anyone RTW where “it's clear they're facing major depressive disorder”, reflecting the Claimant’s resistance to considering whether conditions at the Brampton Courthouse in February 2023 had changed since 2018, having regard to the staffing changes and the different management, and that she believed she inevitably would experience a relapse of her condition should she RTW. [20] Finally, further to an inquiry by the Union, on May 30, 2023 the Claimant’s family physician responded to certain questions as follows: [1] Her diagnosis is: anxiety/panic attacks in remission; depression in remission [2] She has no symptoms since she left her specific workplace but had panic attacks, anxiety when she worked there [3] and [4] Treatment plan would be to relocate her to any other office - like where she was working after she moved out from the Brampton Courthouse. She would benefit very well by working in another work place environment [5] She would be considered “totally disabled” if asked to work at the Brampton Courthouse location but “not disabled” with the other location [6] Restriction/limitations: avoid working in current recommended workplace to avoid relapse [21] The response that the Claimant had suffered no symptoms since leaving her specific workplace contradicts medical provided by the family physician in August 2022 indicating that the Claimant was symptomatic, leading to the approval of LTD benefits in October 2022. The recommended treatment plan posits a different work location yet acknowledges what is needed is a different work environment. Those may not reflect the same thing. I am disinclined to place much, if any weight on the response in #5 as it is speculative at best, and inclines toward advocacy rather than medical assessment as it makes assumptions concerning the current workplace environment. [22] The medical evidence confirms that, leading up to and during this period, the Claimant was not undergoing any treatment by way of medication, therapy, or counselling and was functioning well with good mental health. [23] The Claimant relied on the recommendations of the medical professionals that she not be returned to work at her home location out of concern that such a RTW would cause a relapse of her symptoms. The Claimant therefore declined to participate in the proposed rehab plan while acknowledging that she was able to perform the essential duties of her position. [24] The collective agreement defines “total disability” in the “own occupation” period as follows: 42.2.3 Total disability means the continuous inability as the result of illness, - 7 - 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… [25] The collective agreement also provides: 42.6 If, within three (3) months after benefits from the L.T.I.P. plan have ceased, an employee has a recurrence of a disability due to the same or a related cause, the L.T.I.P. benefit approved for the original disability will be reinstated immediately. 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… (emphasis added) * * * [26] In summary, the Union asserted that the Claimant remained totally disabled during the period claimed and that the rehabilitation plan set out by Manulife was contrary to medical advice and was unreasonable such that the Claimant was under no obligation to participate. It also asserted that the proposed rehab plan was discriminatory in that it would cause the Claimant injury on the basis of her disability. The Union relied on the various recommendations that the Claimant not return to the same workplace, which it asserts were accepted by the FRS at Manulife but were not found in the rehab plan. [27] The Employer argued that the rehab plan was not arbitrary and failure to engage with that plan appropriately resulted in the termination of LTD benefits. It also argued that the Claimant was no longer totally disabled on March 15, 2023 when her LTD benefits ended. [28] The parties referred me to the following authorities: • The Crown in Right of Ontario (TBS) v OPSEU (UNION# 610276), 2017 CanLII 90156 (ON GSB) (Parmar) • The Crown in Right of Ontario (MCS) v OPSEU (Dales), 2002 CanLII 45744 (ON GSB) (Mikus) • The Crown in Right of Ontario (MCCSS) and OPSEU (Vangou), 2019 CanLII 12514 (ON GSB) (Johnston) • Rose v. Paul Revere Life Insurance Co., 1991 CarswellBC 304 (B.C.C.A.) • McWilliam v. Mutual of Omaha Insurance Co., 1988 CarswellOnt 1527 (Dist. Ct.) - 8 - • Vancouver Pre-Trial Services Centre v. B.C.N.U., 2003 CarswellBC 4266 (Korbin) • TRW Linkage & Suspension Division v. T.P.E.A., 2005 CarswellOnt 6375; 144 L.A.C. (4th) 215 (Hinnegan) • Wasnick v. Allianz Life Insurance Co. of North America, 2002 BCSC 344; 2002 CarswellBC 510 • Taaffe v. Sun Life Assurance Co. of Canada, 1979 CarswellOnt 783 • Green v. Mutual of Omaha Insurance Co., 1983 CarswellNS 129 • D’Andrea, James A., Illness and Disability in the Workplace: How to Navigate Through the Legal Minefield, Chapter 5. IV. Long-Term Disability; 5:20 Availability of Work [29] For the reasons that follow, I find that the Claimant was not totally disabled on March 15, 2023 and following. I further find that the Claimant did not participate in a reasonable rehab plan proposed by the carrier. As such, the Claimant was not entitled to have her LTD benefits continue. [30] There can be no doubt that a claimant is not required to accept any rehab plan set out by Manulife. That would provide the carrier with an overbearing discretion that could be misused to deny the payment of appropriate LTD benefit claims. The rehab plan must be reasonable and is subject to review on the basis that it not be arbitrary, discriminatory or made in bad faith (See Arbitrator’s Parmar’s decision in GSB# 2017-1802 at paragraph 21). I draw no distinction between the descriptor ‘reasonable’ and the test utilized by Arbitrator Parmar in that case. In labour relations, a reasonableness test is consistently expressed as whether one acted in a manner that was not arbitrary, discriminatory, or in bad faith. [31] Arbitrator Parmar determined that Manulife’s decision in that case to require compliance with its rehabilitation plan was arbitrary, as the rehab plan imposed was not based on the medical advice and was contrary to the treatment plan set out in the medical advice. That rehab plan contemplated an immediate 4-week gradual RTW with the concurrent provision of eight sessions of CBT treatment, following which a full RTW was expected. However, the medical evidence established that the claimant was not medically fit to return to work at the relevant time and continued to be symptomatic, but that “three to four months of ongoing therapy might result in sufficient improvement” so as to be able to then engage in a graduated RTW. [32] As noted by Arbitrator Parmar at para 30 of her decision, “…where the insurer chooses to reject…recommendations and follow a different path, there should be a reasonable explanation as to why that advice is being rejected”. [33] In this case, I am satisfied that the rehab plan structured by Manulife was reasonable. It accepted the medical opinions expressed by Homewood Health and the assessing psychiatrist that the Claimant’s medical condition was in full remission and that she was fit to perform the essential duties of her own occupation. - 9 - [34] Where there was divergence, it was in relation to the recommendation that she not return to her previous workplace. While the words, “work location”, “previous workplace” and “work environment” were all used, what is clear from the Claimant’s own assessment is that the geographic location of her workplace was not the issue. The problematic work environment also had nothing to do with the work requirements. At issue were the relationships with and conduct of the people with whom the Claimant had worked. That is perhaps better described, as was done in the psychiatric report, as the “work environment” and one must be mindful to assess any rehab plan in that specific context. [35] That concern is expressed in all the medicals in relation to the possibility of a relapse. The Homewood Health assessment expressly contemplated a RTW at the Brampton Courthouse and in that event, recommended a course of treatment to minimize the risk of relapse. The psychiatrist recommends against forcing a return “to the same work environment that was anxiety provoking”. [36] Given the changes that would occur naturally in a workplace over a period of five years and actual changes in staff and supervisory personnel, any assessment of the “work environment” and the likelihood of relapse was entirely speculative. However, the rehab plan, in accordance with the recommendation from Homewood Health, included a treatment contingency. The collective agreement also provides for reinstatement of LTD benefits should a relapse occur within three months. That indicates that the parties understand there may be some risk in a RTW, and some adjustment required. [37] The Union argued that any consideration of a rehab plan dealing with mental health symptoms be treated with the same ‘fervour’ as one dealing with physical symptoms. I agree. At the same time, the principles underlying the concept of a ‘work-hardening’ can also apply to both. Stress and anxiety, like a certain amount of physical discomfort are often to be expected on a RTW. Yet, as one can build physical strength, for example through a gradual RTW with increasing physical demands, one can also build mental health ‘muscle’ through various training, techniques, supports and strategies. There is no doubt that the Claimant would feel hesitant and likely some anxiety on a RTW, if only because she’d been away from the workplace for a significant period. That would be expected. But one could not assume that the work environment would be the same. Nor could one assume that a relapse resulting in total disability was inevitable, or even likely. [38] The Claimant was fearful she would relapse should she RTW at the Brampton Courthouse. The proposed rehab plan would have provided an opportunity to determine whether the work environment with its personnel changes and the offered managerial and psychological support provided an appropriate ‘work- hardening’ and whether the work environment was sufficiently different and safe to allow the Claimant a successful RTW. One ought not to be forced into a RTW where a relapse is medically probable and predicted, rather than speculative. At the same time, someone who is able to perform the essential duties of their work is not entitled to remain off work receiving income replacement benefits. - 10 - [39] In McMillan, supra, a unionized mill worker received LTD benefits for a period which were then discontinued on the basis that he was no longer totally disabled. His claim for reinstatement of the LTD benefit was dismissed. The medical evidence supported a diagnosis of recurrent depressive disorder and a personality disorder, but the claimant was otherwise functioning throughout by attending university, getting married, and engaging in family life. In response to medical evidence that he would likely become seriously depressed again and would not be able to function if returned to work at the mill, the Court said: 34 … An attempt at rehabilitative employment in one or more of the listed positions, on a trial basis, may or may not have supported their position as to mill phobia. As it is the court is left with a bald opinion that is unsupported by the evidence or actual job reaction, in that no such experimentation was conducted. [40] The Union also asserted that the rehab plan was in breach of the Employer’s duty to accommodate a disability pursuant to the terms of the Ontario Human Rights Code (the “Code”) and the no-discrimination clause of the collective agreement. I understood it to argue that the recommendation not to RTW at the Brampton Courthouse constituted a valid medical restriction and limitation that the Employer was required to consider pursuant to its duty to accommodate under the Code, such that the Claimant should have been accommodated elsewhere, or be entitled to remain in receipt of LTD benefits. [41] It is not the mandate or function of JIBRC or the Claims Review Subcommittee to consider and/or make determinations with respect to whether the duty to accommodate has been engaged and/or whether a particular accommodation plan is appropriate pursuant to the provisions of the Code or section 3 of the collective agreement. JIBRC and this reviewing subcommittee deal with disputes about the provision of insured benefits pursuant to Article 22.9, Article 43, and Appendix 4 of the collective agreement. Whether one is totally disabled and therefore entitled to receive LTD income replacement benefits in the ‘own occ’ period pursuant to the terms of the LTIP Plan is a different question from whether one is entitled to be accommodated in the workplace pursuant to the terms of the Code and the latter does not deal with the provision of insured benefits. [42] However, assuming that the provisions of the Code apply to any assessment of a rehab plan (that the terms of the rehab plan not be discriminatory - see the decision in Dales (Mikus), supra.), that assessment remains grounded in the reasonableness test (not arbitrary, discriminatory or in bad faith). An accommodation plan under the Code similarly presumes an initial RTW in one’s own position (occupation), with or without modifications, unless that is precluded by the medical advice. Identified restrictions and limitations must be grounded in objective medical evidence and not speculation. An employee is not entitled to the accommodation of their choice. An employee is expected to participate in a reasonable accommodation plan. These are the same considerations that are brought to bear in assessing the reasonableness of a rehab plan. I am satisfied that the rehab plan reasonably considered the medical evidence and appropriately provided for the possibility of a relapse, in circumstances where that medical evidence confirmed that the medical condition leading to the original approval of - 11 - LTD benefits was in full remission and that the Claimant, by early 2023 was able to perform the essential duties of her own occupation. [43] Inherent in this discussion is the corollary finding that the Claimant was not, as of March 15, 2023 totally disabled from performing the essential duties of her own occupation “as the result” of her medical condition. The Claimant’s medical condition was in full remission and, contrary to the submissions of the Union, the evidence indicated that the Claimant was and had been asymptomatic for a period of time, including there being no recent reports of disabling symptoms on considering a RTW to her own occupation. [44] Having regard to all of the above, I find that the Claimant was not totally disabled on March 15, 2023. I further find that the rehabilitation plan proposed by Manulife was reasonable and that the Claimant failed to participate in that plan. [45] In the result, the claim for LTD benefits is denied. Dated at Toronto, Ontario this 2nd day of August 2024. “Marilyn A. Nairn” Marilyn A. Nairn, Arbitrator