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HomeMy WebLinkAbout1989-1299.Wong.91-01-16 ONTARIO EMPLOYfi-'S DE LA COUF~ONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSlON DE. SETTLEMENT REGLEMENT " "*" BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARKk MSG ?28 TElEPHONE/TELEPHONE: I416) 326- 1299/89 I~ ~E ~TTER 0F ~ A~IT~TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Wong) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) '- Employer BEFORE: G. Simmons Vice-Chairperson J. Carruthers Member H..Roberts Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Costen EMPLOYER Counsel Human Resources Secretariat Management Board of Cabinet HEARING: June 26, 1990 August 24, 1990 September 12, 1990 2 The grievance, dated October 3, 1989, states: I grieve that I have been denied payment of LTIP AND OTHER BENEFITS pursuant to the Collective Agreement and for continued harassment in regard to bad faith policy and discrimination. The grievance goes on to state that the settlement desired is: I request that I be paid all LTIP AND OTHER BENEFITS RETROACTIVE to the first day due, and further I be reinbursed [sic] for all expenses incurred as a result of the denial of these benefits which has been an act of inhumanity causing me and my family extreme mental anguish, pain, suffering and financial nightmare suffered by us. The grievor is classified as an "OAG-6" and holds the position title of "Word Processor". She was first employed on January 3, 1984, at the Ontario Municipal Board which was under the aegis of the Ministry of the Attorney General. At the commencement of these proceedings the Employer raised two concerns in the form of preliminary matters. The first concern dealt with procedure. It was counsel's position that two letters written by physicians concerning the grievor's state of health had been received by the Union after the Joint Insurance .Benefits Review Committee had reviewed the matter. The Committee has a role to play in these matters pursuant to Article 27.9 and Appendices 5 and 6 in the Collective Agreement. The Union wanted this Board to take the letters into consideration in its deliberations. The second concern was substantive rather than procedural. It was the Employer's position that the responsibility of the 3 Employer ceases when it engages an Insurance Carrier to provide the. benefits as stipulated in the Collective Agreement. In other words, the Employer's responsibility is to engage an Insurance Carrier who is responsible to pay the benefits and the Employer's responsibility ceases when it has engaged an Insurance Carrier and has p~id the requisite premiums for the coverage of such benefits. We will now turn to the Employer's first concern over the two letters that were received by the Union after the insurance company and the Joint Insurance Benefits Review Committee had denied her claim. The Committee's decision to affirm that of the Insurance Carrier was reached on September 25, 1989. The first letter is dated October 16, 1989, and was written by Dr. Lalani, a psychiatrist, ~nd the second one is dated June 4, 1990, and was written by Dr. Brooks the grievor's family physician at the time. When the Board convened this hearing on June 26, 1990, it was requested by the Employer and agreed to.by the Union that the two letters which had not previously been submitted to the'.' Review Committee be done so before proceeding further. The argument was that the Review Committee had not had an opportunity to see the comments contained in the letters and to refuse them the opportunity to do so would not. be complying fully with the terms of the Coilective Agreement. The Board was informed that the Review Committee was meeting on June 26, the same day as the hearing, and would consider the comments contained in those letters. The hearing thereupon' adjourned and reconvened on 4 August 24, 1990. Dr. Latani's letter of October 16, 1989, was in response to the Union. It reads: This is to acknowledge your letter of September 21, 1989 regarding Mrs. Lena Wong in which the issues of Mrs. Wong's psychiatric status and her fitness to return to work were raised. Based on my overall assessment so far of Mrs. Lena Wong's psychiatric status I would like to state that in my opinion Mrs. Wong has not been well enough to have returned to work ever since February of this year and probably also for several weeks prior to that. Her psychiatric assessment has showed evidence of a major depressive disorder with panic attacks. As stated in my earlier letter to you, not having seen Mrs. Wong prior to February of 1989 it was rather difficult for me to state unequivocally as to her fitness to return to work prior to that time. All I could say is that for a few weeks preceding my assessment in February of 1989 she was probably not well enough to go to work. As you have stated in your note she had a p~ychiatric assessment done in October of 1988 so it would be quite appropriate to get the opinion of the psychiatrist who saw her at that time as regards her fitness to return to work at that time. As regards your second question, namely if it was fair to say that her illness had prevented Mrs. Wong from seeking ongoing medical treatment, I am not quite certain if I understand that question. I presume you are referring to her mental status in October of 1988 and wondering whether that it prevented her from going back to see Dr. E.W. Brown whom she had seen for a psychiatric assessment. My opinion regarding that based on what I have observed of her mental status so far is that it is most unlikely that her psychiatric status had prevented her from going back to see the therapist whom she has seen earlier. If I have in any way misunderstood the question, please let me know so that a correction can be made to the answer. I have seen her on a few occasions since July and while she has showed some symptomatic improvement to treatment she has not ~been tolerant of side effects of various antidepressant drugs which have been tried. It was therefore suggested to her that she should consider a period of hospitalization so that her drug therapy and its side effects could be monitored more closely. However, she has been reluctant to accept that suggestion. When I saw her on October 12, 1989 she informed me that she had decided to go to Pakistan for a few weeks as she thought that this would be of benefit to her in helping her to recuperate mentally. In light of her having experienced side effects to antidepressant therapy I thought it was inappropriate to continue her treatment if she was going to be away for a significant length of time. At this point, therefore, she has not showed adequate response to treatment and at the same time she is rather reluctant to consider inpatient treatment. As you will appreciate, it is difficult for me at this time to make a valid prognostic statement as to when she will be able to return to work. I hope this information is of some ben'fit. The reference to a psychiatric assessment in October, 1988, in the second paragraph of the letter was carried out by Dr. Brown. The grievor stated'that Dr. Brown had asked her questions about her childhood when she was three and four years of age and not about her current situation. She found Dr. Brown to be abrupt and rude and did not visit him again. In the final paragraph, ,Dr. Lalani states that he recommended a period of hospitalization which she refused. She informed the Board that she was reluctant to be hospitalized because she was afraid that shock treatments would be prescribed. She also stated that her family had advised her against being hospitalized. Instead of following Dr..Lalani's advice she opted instead to. visit Pakistan for a while. 6 The grievor is no longer Dr. Lalani's patient and, as stated in Dr. Brooks' letter of June 4, which follows, she is looking for a new psychiatrist. As will be seen later in this decision, Dr. Wong was the grievor's family physician until mid-1989 when he informed the grievor that he was no longer willing to continue as her physician. Dr. Brooks apparently assumed that role. It was he who wrote the letter of June 4, 1990. It reads: In response to your letter of April 5, 1990, I hope the following will be helpful. The above noted patient was previously a patient of Dr. Frank Wong and has been with both me and Dr. Ravat in Dr. Ravat's practice since November 22, 1988. During that time she has been seen approximately twenty times. Numerous of these visits have revolved around the hysterectomy she had in April of 1989 and the subsequent diarrhoea that developed. This has since resolved. Over the last year complaints have included - numbness in the left side of the face, abdominal pains, disturbed sleep, exhaustion, flatulence, dyspepsia, feelings of stress, anxiety and depression, headaches, giddy spells, fear of going out of the house, and tingling at the top of the head. On'August 10th of 1989, Mrs. Wong was seen by Dr. S. ~Lalani, psychiatrist, regarding some of the problems noted'above. He diagnosed a depressive syndrome, most likely a major depressive disorder of chronic duration, as well as panic attacks. He prescribed some medication which the patient was unable to tolerate due to side effects; and then advised a period of hospitalization which the patient refused. Since that time various investigations have been carried out which have all been unremarkable, including syphilis test, thyroid function studies, blood and sugar screens, kidney function tests, cholesterol, a breast x-ray, and an abdominal ultrasound, and a cardiogram. Mrs. Wong feels that the above noted problems are a direct result of her mistreatment at work, and are now exacerbated by her difficult financial situation. She feels she is not crazy and that if she were vindicated for her actions at work, including financial consideration, that this would go a long way to getting her feeling better again and able to rejoin the work force. She also feels that no doctor or any standard medical treatment either physical or psychiatric will make her feel better as long as the basic cause for her problems stems from the work situation and the subsequent financial embarassment (sic). It is my opinion that she suffers from a tendency towards depression,.is sensitive to stress, and has a panic disorder; and as well there may be some elements of a personality disorder. Being passed over for promotion at work and t~e events that ensued resulted in an exacerbation or a triggering of symptoms and behaviours associated with depression, panic disorder and personality disorder, and were in fact made more intense because of this. Mrs. Wong is presently not doing well and is in ~no condition to return to any sort of employment at this time. Treatment has been started for her panic disorder and has shown some signs of being helpful. This will be persued (sic) further when the patient sees a new psychiatrist in the near future. It would also be my opinion that an amicable and equitable settlement of the work dispute would go a long way towards helping Mrs. Wong back to'better health and allowing her to return to the work force. If I can be of further help, please let me know. 8 When the Board reconvened on August 24, 1990, it was informed that the Review Committee had not been persuaded by the additional information contained in Dr$. Lalani and Brooks letters and confirmed its decision that the grievor was not entitled to long term income protection benefits. Regardless of the Review Committee's decision the first concern of the Employer has been satisfied. That is, the Review Committee had an opportunity to review the October 16, 1989, and June 4, 1990, letters and arrive at a decision based cn the additional medical information that had been made available. Before proceeding to the Employer's second area of concern this might be an appropriate place to set forth 'the relevant portions of the Collective Agreement. They read: INSURED BENEFITS GRIEVANCE 27.9.1 Where an employee has a complaint that he has been denied benefits pursuant to the insured benefits plans specified in Articles 40, 41, 42, 44 and 57, he shall first discuss the complaint with his supervisor within twenty (20) days of first becoming aware of the complaint. 27.9.2 (a) If the complaint is not satisfactorily resolved by the supervisor within seven (7) days of the discussion, the employee may refer the complaint, in writing, to the Joint Insurance Benefits Review Committee established in Appendix 5 and addressed to the Benefits Policy Branch, Human Resources Secretariat, within an additional ten (10) days. (b) Any referral to the Joint Insurance Benefits Review Committee under 27.9.2(a) shall include a release of information form (Appendix 6) completed, signed and dated by the employee. (b) Effective January 1, 1986, the L.T.I.P. benefit under 42.2.1(a) will be increased for each employee who commenced to received ~L.T.I.P. benefits: (i) from and including January 1, 1975, to and including December 31, 1976, by $125 per month; (ii) from and including January 1, 1977, to and including December 31, 1978, by $85 per month; (iii) from and including January 1, 1979, to and including December 31, 1980, by $60 per month; (iv) from and including January 1, 1981, to and including December 31, 1982, by $25 per month; in respect of each month the employee continues to receive L.T.I.P. benefits under the plan. 42.2.2 The Long Term Income Protection benefit to " which an employee is-entitled under 42.2.1 shall be reduced by the total of other disability or retirement benefits p'ayable under any other plan toward which the Employer makes a contribution except for Workers' Compensation benefits paid for an unrelated disability, and such benefits are payable until recovery, death or the end of the month in which the employee reaches age 65. 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 continue to 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 employee to Perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of benefit period; and thereafter during the balance 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. (c) The Joint Insurance Benefits Review Committee shall consider the complaint and the Benefits Policy Branch shall give the employee its decision in writing within sixty (60) days of the committee meeting at which the complaint is discussed. 27.9.3 (a) If the complaint is not satisfactorily resolved under 27.9.2, the employee may file a grievance in writing with the Director, Staff Relations Branch or his designee within seven (7) days of the date he received the decision under 27.9.2(c). In the event that no decision in writing is received in accordance with the specified time limits in 27.9.2(c), the grievor may submit the grievance to the Director, Staff Relations Branch within seven (7) days of the date that tke Benefits Policy Branch was required to give its decision in writing in accordance with 27.9.2(c). (b) A submission of the grievance to the Director, Staff Relations Branch or his designee under this section shall be considered to be the second stage of the ..... grievance procedure for the purpose of this Article. Articles 40 and 41 are not pertinent to the issue before us. However, Article 42 is pertinent and reads as follows: Article 42 - Long Term Income Protection 42.1 The Employer shall pay· eight~-five percent (85%) of the monthly premium of the Long Term Income Protection Plan. 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 at the date of disability, including any retroactive salary adjustment to which the employee is entitled. 42.3 The Employer will continue to make pension contributions and premium payments for O.H.I.P., the Dental Plan and for Supplementary Health and Hospital on behalf of the employee, at.no cost to the employee, while the employee receives or is qualified to receive L.T.I.P. benefits under the plan, unless the employee is supplementing a W.C.B. award. 42.4 A record of employment, if r~quired in order to claim Unemployment Insurance sickness and disability benefits, will be granted to an employee and this document shall not be considered as termination of employment. 42.5 Long Term Income Protection coverage will terminate at the end of the calendar month in which an employee ceases to be a civil servant. If the employee is totally disabled on the date his insurance terminates, he shall continue to be insured for that disability. 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. behefit approved for the original disability will be reinstated immediately. 42.7 If an employee who is in receipt of L.T.I.P. benefits is resuming employment on a gradual. basis during recovery, partial benefits shall be continued during rehabilitative employment. "Rehabilitative employment" means remunerative employment while not yet fully recovered, following directly after the period of total disability for which benefits were received. When considering rehabilitative employment benefits, L.T.I.P. will take into account the employee's training, education and experience. 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. Rehabilitative employment may be with the Employer or with another employer. 42.8 The L.T.I.P. benefits under rehabilitative employment shall be reduced when an employee's total earnings exceed one hundred percent (100%) of his earnings as at the date of commencement of total disability. 42.9 Employees while on rehabilitative employment with the Ontario Government will earn vacation credits as set out in Article 47 (Vacations and Vacation Credits). 42.10 (a) When an employee who has been receiving or' was eligible to receive L.T.I.P. benefits is able to return to full-time employment, the provisions of Article 24 (Job Security), with the exception of section 24.3, shall apply. (b) An employee who is assigned, under this section, to a vacancy in accordance with sub-sections 24.2.1, 24.2.2, 24.2.3 or 24.2.4 of Article 24 shall, for a period of six (6) months, be paid at the same step he had attained in the salary range of the classification of the position he occupied prior to disability. At the end of that period he shall be paid at a rate within the salary range of the classification of the position to which he has been assigned. Article 46 is also relevant and reads as follows: Article 46 - Joint Insurance Benefits Review Committee 46.1 The parties agree to continue the Joint Insurance Benefits Review Committee. The terms of reference are set out .in Appendix 5 attached. Appendix 5 - Joint Insurance Benefits Review Committee 1. Name of Committee The Committee Shall be referred to as the Joint Insurance Benefits Review Committee. 13 2. Purpose of Committee The purpose of this 'Committee is to facilitate communications between the Employer and the OPSEU on the subject of Group Insurance, including Basic Life Insurance, Supplementary Life Insurance, Extended Health Insurance, Long Term Income Protection Insurance, .and such other negotiated benefits as may, from time to time, be included in the Group Insurance Plan. It is understood that the Group Insurance benefits to be provided to employees and the cost sharing arrangements between the Employer and its employees shall be as set out in any applicable collective agreement or arbitration award, and the matters for consideration by this Committee shall be only as set out in these terms of reference. 3. Composition of Committee The Committee shall be composed of an equal number of representatives from the Employer and from the OPSEU, with not more than'eight (8) representatives ~' in total. At meetings of the Committee, each party may be accompanied by an Actuary to provide technical advice and counsel. 4. Duties of Committee The duties of the Committee shall consist of the following: (i) Development of the spacifications for the public tendering of any negotiated benefits which may be included in the Group Insurance Plan (to cover the bargaining unit only); (ii) Determination of the manner in which the specifications will be made available for public tendering; (iii) Consideration and examination of all tenders submitted in response to the specifications for tender and preparation of a report thereon; (iv) Recommendation to the Government of Ontario on the selection of the Insurance Carrier or carriers to underwrite the Group Insurance Plans; (v) Review of the semi-annual financial reports on the Group Insurance Plan; and (vi) Review of contentious claims and recommendations thereon, when such claim problems have not been resolved through the existing administrative procedures. ® The specifications for tender will describe the benefits to be provided, the cost sharing arrangement between the Employer and its employees, the past financial history of the insurance plans, the employee data, the format for the retention illustration for each coverage and the financial reporting requirements. Tenders shall be entertained by the Committee from any individual Insurance Carrier acting solely on its own behalf. This shall not preclude such carrier from arranging reinsurance as may be necessary. The basis for recommendation of an Insurance Carrier(s) will include the ability of the carrier(s) to underwrite the plan, compliance of the carrier's quotation with the specifications for tender, the carrier's service capabilities and the expected long term net cost of the benefits to be provided. 5. Experience Review The Committee will also meet every six (6) months to revieV the financial experience under these coverages. · The specifications for tender will describe the information to be included in the semi-annual financial statements to be prepared by the Insurance Carrier(s). These statements will include paid premiums, paid claims, changes in reserve requirements for open and for unreported claims, incurred claims, the retention elements of commissions, takes, administrative expenses, contingency reserve charges and interest credits on claim and other reserves. The Insurance Carrier(s) will also be required to report on the level and method of administering the Employer's and employees' deposit accounts. The Committee shall request the Insurance Carrier(s) to provide such additional information for the Committee's consideration as may be required by either the Employer or the OPSEU. If the Joint Insurance Benefits Review Committee fails to agree on a recommendation to the Government of Ontario on the selection of the Insurance Carrier(s) to underwrite the group insurance plan, the members of the said Committee nominated by the Employer and the OPSEU may each make a recommendation in writing to the Government of Ontario on the selection of the Insurance Carrier(s) supported by reasons for their respective recommendations. It is understood that the Government at all times retains the right to select whatever~carrier(s) (to underwrite the Group Insurance Plan) it may consider would best serve the "public interest" and, in so doing, is under no obligation to select a carrier(s) that may be recommended by the Joint Insurance Benefits Review Committee. Appendix 6 Article 27 - Grievance Procedure - Release of Information Insured Benefits Grievance To (Name of Insurance Carrier for benefit claimed) THIS SHALL BE YOUR AUTHORITY to deliver immediately to the Employer, in care of the Staff Relations Branch of the Human Resources Secretariat of the Province of Ontario, a copy of each and every medical report prepared by or under the authority of a medical practitioner, and a copy of each and every document or other paper prepared by any person, ih your possession in connection with my claim dated , for (specify benefit claimed) during my employment with the Ontario Public Service. Date Employee Signature The Employer's second area .of concern, Dursued as a preliminary objection, was that ils responsibility ceased when it engaged an Insurance Carrier to provide the benefits stipulated in the Collective Agreement. Counsel argued that the matter was therefore inarbitrab!e and relied on OPSEU (Mrs. Jane M. Hooev) and the Crown in Riqht of Ontario (Ministrv of Health), 348/81, Weatherill Chairman in support of its position. The,Board in Hooe~ concluded that the Employer's responsibility ceased when it had put 16 in place an insurance scheme to provide benefits. On pages 7 and 8 of that award, the Board states: In our view, the employer's objection is well-founded. The employer's obligation under the collective agreement is to arrange for a policy of long term income protection insurance meeting certain criteria, and to pay eighty- five per cent of the premium thereof. Such a policy has been arranged and as we have noted it appears to provide the benefits which the- collective agreement requires be provided in such a policy. The employer has paid its share of the premiums for such insurance. That being the case, the employer has met its obligations under the collective agreement in respect of this benefit. The benefit, that is, is insurance. The employer is not the insurer, and is not itself responsible for the provision of the benefits - although it might well be so responsible if, for example, it had failed to meet its obligations by not providing the insurance. It was argued for the union that the collective agreement incorporates the policy of insurance, to the extent at least of making claims for benefits under the policy claims which could be the subject of grievance. We are unable to accept this argument. Certainly the collective agreement refers to "the Long Term Income Protection Plan" It contemplates the existence of such a plan, it implicitly requires the employer to provide or to continue to provide such a plan, and it expressly requires paYment of a portion of the premiums. It is natural that there be reference to the insurance with respect to which such obligations arise. Tha~ does not mean, however, that such reference "incorporates" the plan in the collective agreement, in the sense that it somehow makes the proviSions of the policy itself terms of the collective agreement and obligations of the employer. The collective agreement requires that a policy of insurance be provided. It is not itself a policy of insurance. In the instant case the employer has provided an appropriate policy of insurance. The grievor's claim.for payment of benefits under that policy is not a claim arising under the collective agreement, but is rather one under the policy. It is the_ insurer's obligation to pay proper claims,' '-and that obligation will be enforceable at law .... The Board in the Hooey case decided that the matter was one between the Insurance Carrier and the grievor and it was not a matter between the Employer and the grievor and the obligation of the Employer was to provide an insurance plan and it was the obligation of the insurance company to provide the benefits. In the Collective Agreement before the Weatherill Board there was in Article 45 the provision for the continuance of a Joint Insurance Benefits Review Committee. Mr. Weatherill stated on page 6: The Joint Insurance Benefits Review Commitee's (sic) role is to "facilitate communications", and to make recommendations with respect to insurance coverage. It cannot, however, affect the obligations entered into from time to time as between the parties and embodied in the · - collective agreement. The Collective Agreement that was negotiated in 1982 contained provisions in Article 27.9, supra, concerning certain terms for the Joint Review Benefits Committee for the first time. A further grievance involving this issue came forward entitled OPSEU ~Jagjit Sekhon) and The Crown in Right of Ontario ~Ministrv of Health), 418/83, Mr. E.B. Jolliffe, Q.C., Vice Chairman. Mr. Jolliffe began his decision with the following words: ® This is another case in which the result becomes inevitable in light of the Divisional court judgment in Hooey 348/81, delivered on May 18, 1984. On an application by the Union for judicial review, the Court unanimously affirmed this Board's decision, authored by Chairman Weatheril~, in which it was held that the grievor's claim for long term income protection benefits could not succeed aginst (sic) the employer, although the insurer's obligation to pay proper claims would be enforceable at law. The Jolliffe Board followed the Weatherill Board stating that if ske kas a claim for benefits it can be pursued against the insurer and not the Employer. The Board, therefore, dismissed the grievance. The Sekhon decision was appealed to the Divisional Court and the decision was released on September 9, 1986, wherein the Court unanimously concluded that the Board erred in finding that it did not have jurisdiction to hear the grievor because of the new Article 27.9.1 that had been negotiated into the 1982 Collective Agreement. The Court stated that the Board had jurisdiction pursuant to the Collective Agreement to ~hear the grievance and quashed the decision remitting the grievance to a new panel of Lthe Grievance Settlement Board for determination. The matter then came before a panel of the Board chaired by Ms. M.K. Saltman who issued an interim decision on March 15, 1990, stating that it was her view that the Board had jurisdiction to review the matter. On pages 10 and 11 she comments: In our view, there can be no doubt as to the Board's jurisdiction in this matter. Article 27.9.1, which was introduced in the 1982-83' collective agreement, provides an employee who has a complaint respecting the denial of benefits pursuant to the insured benefits plans, including the long-term income protection plan, with access to the grievance and arbitration procedure to have that complaint resolved. There than follows a detailed procedure for the resolution of these grievances, up to and including arbitration before the Grievance Settlement Board. In our view, although there are procedural aspects to the amendments to Article 27, by expressly providing that complaints respecting the denial of insured benefits can be referred to arbitration, the parties have created substantive rights., which can be pursued up to and including arbitration. We are reinforced in our view by the provisions of Article 27.1, which allows for grievances relating to the obligation- to arrange for a policy of insurance in accordance w~th the requirements of the collective agreement and with the payment of the appropriate premiums thereunder. Were Article 27.9 intended to cover the same matters, there would be no purpose to the amendment. It seems clear, therefore, that Article 27.9 allows for grievances to be brought respecting the denial of long-term income protection benefits. The Board is, therefore, of the view that this matter, which deals with the termination of long-term income protection benefits, is arbitrable. Therefore, in light of the particular circumstances of. this case, the Board finds that the grievance is arbitrable and remains seised to deal with the grievance on its merits. We are informed that the matter before Ms. Saltman is scheduled to be~heard on its merits in December, 1990. There is one further decision of the Board entitled OPSEU .~Ross) and The Crown in. Right of Ontario ~Ministry of HousingS, 1059/88 that went 20 before a' panel chaired by Mr. P.M. Epstein. That decision, approximately one and one-third pages in length, upheld the preliminary objection of the Employer stating that the Hooey decision was applicable, without making any reference to Sekhon. Whether or not Mr. Epstein was made aware of the Divisional Court decision in Sekhon is unknown, but the limited reasoning contained in Ross is of little or no assistance to this Board. Counsel for the Employer argued that notwithstanding the Saltman decision the situation remained as it was when Hooey was decided. That is, the amendment to the Collective Agreement in 1982 did not alter the fact that the Employer's responsibility remains unchanged. Counsel argued that the Employe~ is not an insurer, it is rather, only obligated to arrange insurance and pay the requisite premiums. Counsel sought to have the grievance dismissed as being inarbitrable. In view of the decision of the Divisional Court in Sekhon this Board entertains no doubt that it possesses the jurisdiction to review and inquire into the grievance on its merits. The issue of whether the Employer is liable to pay the benefits need only be addressed if the grievor succeeds in her~claim that benefits are ~payable. We now turn to inquire into the grievance on its merits. Mrs. Wong emigrated to Canada from Pakistan in 1964. She was employed in Montreal at Canadian Marconi as a secretary in the Marketing Department for sixteen years. In 1980 she went through a divorce at which time she moved to Toronto. As a result of the divorce, she became extremely depressed whereupon she sought 21 .medical treatment, and was unable to work for approximately eight~ months. Then, she performed temporary work until 1984 when on January 3 she became employed with the Ontario Municipal Board as a typist and then eventually as a word processor. The grievor's medical problems first arose in late 1987. On December 21, 1987, Mrs. Wong visited Dr. Anderson, a physician whose office was located in the building in which she worked, who diagnosed her as suffering from anaemia and stated that she would be unable to work for more than her regular hours for approximately two months (Exhibit 2, Tab 1). At the time of her visit to Dr. Anderson, she informed kim. that she had filed a grievance because she had been denied a job promotion that she had sought. She further informed him that she was being harassed as a consequence of filing her grievance. By mid-January, 1988, she was explaining to her supervisor, Mrs. Alty, Assistant to the Board's Secretary~ that she was. suffering dizziness and had a low blood count and blood pressure due to her anaemia and was advised by her physician that she was unable to work overtime. Mrs. Wong advised the board that she was instructed by Mrs. ~lty to obtain a doctor's certificate which She obtained from Dr. Anderson (Exhibit 2,~ Tab 2), and informed the Board that she had not been feeling well enough to work during this period, but she continued to work nonetheless because she "needed my job". According to Mrs. Wong, Mrs. Alty kept insisting that she perform overtime work because it was a requirement of the Collective Agreement. She informed the Board that her anxiety and 22 depression was increasing and that her work was being closely monitored and checked resulting in mistakes appearing periodically with her work being returned to her. She then began re-reading her letters four or five times to ensure that they were error free. She did, however, admit that many times she did not see the errors that were brought to her attention subsequently. She became more depressed as time went on and concluded that she could not continue in her job but stated that she needed it. She also testified that at about this time the girls in the office were saying, "What is the wicked witch of the west going to do today?" Shortly thereafter she reached the point where she couldn't concentrate on her job anymore. She stated that her nerves and anxiety were increasing and she began experiencing severe pains in her neck, arm, and chest. Moreover, she was not sleeping well. She soon arrived at the point Where she was concerned that she was going to have a stroke. Mrs. Cindy Alty, Assistant Board Secretary and Manager of Administration for the Board, confirmed that the grievor had filed a grievance as stated above and that the parties agreed to settle the grievance on the basis that the grievor would be transferred to the Provincial Court in Mississauga for a period of between three to six months. According to Mrs. Alty, the grievor had indicated a preference to work closer to her home and this transfer accomplished that desire. Mrs. Alty further stated that she was of the view that there was no guarantee that the grievor would 23 return to the Ontario Municipal Board because it was possible that a permanent position with the Provincial Court would follow. Mrs. Wong commenced her employment at the Provincial Court in Mississauga on February 1, 1988. She stated that she had no idea how the court system oDerated, but was informed that she would be trained. She began putting traffic tickets on computer but at times she was performing duties at the cash register. She informed the Board that she did not like the work at the Provincial Court and left there on April 8, 1988. She is uncertain as to when she returned to the Ontario Municipal Board, but records reveal that she returned on August 8, 1988. On May 31, 1988, wh~le absent from.work between April 8 and August 8, she visited Dr. Wong, her physician, who issued a certificate that reads, "This is to certify that Mrs. Lena'Wong has~ been suffering from anxiety and insomnia and she is not able to work for about two months. Sincerely yours," (Exhibit 2, Tab 3). When she returned to work on August 8,- 1988, she discovered that her "nice window desk" had been assigned to a Ms. Judith Tait. When she approached Mrs. Alty about this matter, she said that her supervisor informed her that it was her discretion to assign employees to certain desks. According to Mrs. Alty, Ms. Tait had been on short-term disability for 130 days. She was allergic to cigarette smoke so was moved by Mrs. Alty to the grievor's desk which was a further distance away from the smoke area. Mrs. Wong testified that she had hoped that the period of time that had elapsed during her absence from the Ontario Municipal 24 Board would have changed things but when she saw that her desk'had been assigned to someone else, she became very upset and, according to her, concluded that nothing had changed while she had been off work. She further stated that her anxiety had not disappeared and that she was just pushing herself to go to work as she needed the job and she was hoping things would get better. She also thought that her relationship with Mrs. Alty would have improved but she "couldn't reach her". Once again, she informed Mrs. Alty that she would be unable to perform overtime work and on August 17, she produced a medical certificate from Dr. D.H. Brooks, Dr. Wong's replacement while Dr. Wong was on vacation, which reads, "...[word undecipherable] hedical problem~ it would be best that this lady not do overtime work at present." It is apparent that Mrs. Alty was not prepared to accept the grievor's explanation that she could not perform overtime work because on August 17 a hand delivered letter was given to Mrs. Wong stating that she would be required to make up one hour and forty- five minutes time within the next five working days because of the time that she had taken to visit her family doctor for a certificate to exempt her from working overtime. Mrs. Alty required verification of her appointment with her family doctor and verification of an appointment with her eye doctor (Exhibit 2, Tab 5). On AugUst 29, Mrs. Wong again visited her family physician which resulted in the following certificate: "This patient feels she is unable to work for health reasons on August 29, 30 and 31, 25 and has been seen here re her health problems" (Exhibit 2, Tab 7). The evidence reveals that she went off work on August 26, 1988, and has not returned since that date. It was at approximately this point in time when Dr. Wong advised her. to change jobs saying, "you can,t fight the government". She stated thaw she had lost her ability to concentrate and she had lost 'her will to work, and had a low esteem of herself. Application for long-term income protection benefits was made in November, 1988 (Exhibit 3) and on January 26, 1989, she applied for unemployment insurance benefits (Exhibit 2, Tab 10). To recap to this point, it is acknowledged that Mrs. Wong-went on short-term disability benefits on April 8, 1988. Then, if after six months she is "totally disabled", as that term. is defined in the Collective Agreement, she is then eligible to receive Lon~ Term Income Protection benefits. Her grievance is dated October 3, i989, claiming that she had been denied receipt of Long Term Income Protection benefits and claiming that she receive such benefits from the first date that they were due and be reimbursed for all expenses incurred as a result of the denial of these benefits. Precisely when her denial became known to her is unknown to the Board. However, a chronology of events that transpired before and after November, 1988, is helpful. We note in Exhibit 2, Tab 7 that her physician states that Mrs. Wong feels she is unable to work for health reasons on August 29, 30, and 31, 1988. In Exhibit 2, Tab 8 a further certificate from her family physician, Dr. Wong, dated .September 1, 1988, states, Gentleme~ - Re Lena Wong The abovenamed is suffering from anxiety with chest pain and is presently being investigated. She is advised to stay home and may return to work on September 19/88. sincerely yours, Dr. Brooks, on Sept'ember 30, 1988, issues the following certificate: "Has not improved and new prescription has started. She will remain off work til further notice." On February 3, 1989, the Employment and Immigration Canada office is requesting additional information and the physician's statement contained therein reads: "Anxiety and depression related to employment. No .definite date for return to work" (Exhibit 2, Tab 10). On February 7, 1989, Dr. Wong writes a lengthy letter to O.P.S.E.U. setting out his views with respect to Mrs. Wong who has been his patient since March, 1985. That letter reads (Exhibit 2, Tab 11): Mrs. Wong has been under my care since March 1985. She was fiust seen in my office on May 5, 1988 about her present illness. She stated that she' .has been off work since April 5, 1988 because of pressure from her supervisor at work. In her written statement she also stated that she had applied for a promotion at the Ontario Municipal Board and the promotion was denied. She took .up the case with the Union and apparently she won the case. Since then she had been harrassed (sic) at the job to the extent that the patient started to suffer a great deal of anxiety, depression, insomnia' and lack of concentration. She had been. seen on ~a number, of occasions since May, 1988 because of multiple somatic' complaints such as chest pain, neck pain, shoulder pain and had also been in the Emergency Department of The Mississauga Hospital. All the investigations including EKG, X'ray and multiple blood tests were all written normal limit. She had 'also seen by (sic) Dr. E. Brown, Psychiatrist, on October 19, 1988 and stated as "This is a pattern of depression and while her presentation is strongly reactive there are some features, reduced psychomotor activity and broken sleep pattern, suggestive of primary affective disorder." She is presently on Ativan, an anxiolytic agent, for her anxiety. I have also completed the UIC Disability form and the Doctor's First Report for WCB on January 6,'1989. It is no doubt that Mrs. Wong has been suffering, from anxiety and depression which is probably related to her work according to her information. It is my opinion that she is n~t able to carry on her regular job under the present environment. However, there is no reason for her not to work as a Word Processor under the different environment or to work in a different ccmDany. [Our emphasis] As stated earlier, Dr. Brown, the psychiatrist referred to in Dr. Wong's letter, was seen on one occasion only. Mrs. Wong found Dr. Brown to be rude and very abrupt and so she did not return to him again. In February, 1989, Mrs. Wong suggested to Dr. Wong that she undergo a CAT Scan because of the dizziness that she.had been suffering daily. The CAT Scan was normal and it was at this time that Dr. Wong again suggested to her that her problems were work 28 related stress and anxiety. On February 23, 1989, the Employment & Immigration Canada - Unemployment Insurance Office requested from Dr. Wong the period of expected incapacity. In response to question 98 which read, "Do you expect sufficient improvement to take place in the mental or physical condition of this patient to allow him/her to: a) return to his/her previous 'work or occupation?" to which the doctor replied, "Yes". As to when she would be ~ble to return to work, he wrote, "six weeks". In March, 1989, Mrs. Wong had a pelvic sonogram performed and when Dr. Wong read the report (Exhibit 2, Tab 12) to Mrs. Wonq, she said that, "I went to pieces - I didn't know if it was cancer or not - only way to find out was by surgery". She was referred to a gynaecologist who was unable to see her for approximately one month during which time she said that it, "Drove me half crazy" Eventually she underwent surgery during which two cysts were removed but they were benign. After her stay in the hospital, she contacted the Union saying that, "My problems could have caused even this" On March 26, 1989, Dr. Wong wrote to O.P.S.E.U. the following letter (Exhibit 2, Tab 13): This is to reply your recent letter with your full explanation of the long term income protection plan and also a full consent from Mrs. Wong. As I stated previously, it is no doubt that Mrs. Lena Wong has been suffering from anxiety and depression which is related to her work. She was referred to Dr. Sartaj G. Lalani, a psychiatrist in Mississauga, who saw her on April 6, 1989 and he stated that this lady-is sufferin~ from a depressive syndrome which is probably related to. her work environment. There are stresses emanating from her work environment which temporally are related to the recent worsening in her mental status. Since I wrote you the last time, she had been admitted to The Mississauga Hospital twice, for operation of cystadenoma in April and most recently she.was admitted from May 14, 1989 to May 23, 1989 because of acute gastroenteritis. As she has not been able to find aSuitable job and is perhaps in no position to work due to the deterioration of her mental status as well as her recent admissions to the hospital, ~it is reasonable for her to qualify for the long term income, protection plan rather than the long-termdisability benefits as I was informed earlier. Dr. Lalani, the psychiatrist referred to in the letter, was the Dhysician she'turned to after having experienced her.disagreeable session with Dr. Brown previously. Dr. Wong informed.the grievor on June 13, 1989, that he would .not be willing to continue as her family physician f~om August 15, 1989 (Exhibit 2, Tab 14). In July, 1989, Dr. Lalani filled out a welfare application form on behalf of the grievor. He stated that his prognosis for the patient's condition was fair to good and that he expected sufficient improvement to take place in the mental or physical condition of the patient to allow her to return to work in approximately two to three months as a full-time employee. This form was signed by Dr.~Lalani on July 31, 1989 (Exhibit 2, Tab 15). On August 10, 1989, Dr. Lalani wrote to O.P.S.E.U. as follows (Exhibit 2, Tab 16): This is to acknowledge your letter of July 11, 1989 referring to the above named and requesting a psychiatric report. I first saw Mrs. Lena Wong on February23, 1989 at the request of Dr. Frank Wong, her family physician, she was not seen again until July 10. I gather that meanwhile she had been admitted to Mississauga Hospital and underwent abdominal surgery. She is still being investigated for complaint of diarrhea (sic). As far as her psychiatric assessment is concerned, there is evidence to indicate that she is suffering from a depressive syndrome, most likely a major depressive disorder of chronic duration with symptoms going back to at least two years. In addition' since approximately February of 1988 she has also experienced panic anxiety attacks of a disabling severity. The symptoms which have particularly bothered her include episodes of dizziness, numbness of her hands, fear of passing out, restlessness, as well as low moods, decreased energy, reduced interest in activities previously enjoyed, crying spells and difficulty with attending and concentrating. As you are well aware, she has worked as a word processer (sic) with the Ontario Municipal Board. I gather that her last day at work was August 26, 1988 but even prior to that, beginning from April of 1988 she has not been working on a regular basis at all. As far as her ability to work is concerned, at the present time, there is no doubt that she is not able to return to work on account of the depression that she is experiencing. I would say in fact, that certainly from February when I first assessed her she has not been fit enough to return to work for psychiatric reasons. In addition, as she has already presumably informed you, there have been medical reasons in the re~ent past which would have also led to time off from work. You will appreciate my difficulty in making a firm statement regarding her ability to work during the period of April 1988 onwards. However, from the information ske has conveyed to me and from my findings on mental status examination I_would suggest that she probably was not fit enough to continue work during that period of -time as well. As for the future I think there is good possibility that she would respond to antidepressant drug therapy. I have started her on treatment but she has exPerienced adverse side' effects from a couple of antidepressants. If she remains .intolerant of the side effects of antidepressants then she would benefit from a period of hospitalization where her treatment could be monitored more closely. There is good chance that she would respondrto treatment and then be able to return to work. How long it will take I am not able to say with certainty but a period of two to three months could be adequate to obtain satisfactory response to treatment. However, as you are already well aware, there are certain work related issues which would operate adversely in her return to'work, especially if she was going back to the same environment. A move to a different job within the same department would perhaps be more suitable, and certainly would facilitate her return to work. This letter is somewhat at odds with the' comment made to the unemployment insurance people ten days earlier that she could be expected to return to work in two to three months. From the foregoing evidence, which was also before the Insurance Carrier and the Review Commi~tee, can it be said that they were correct in denying the claim of the grievor? if they were wrong and the grievor is entitled to receive benefits then the Board will be required to inquire further to determine whether the Employer is responsible for providing such benefits. It is trite to say that 'this Board possesses no jurisdiction to order the Insurance Carrier to pay benefits to the grievor, not being a party .to the Collective Agreement. In reviewing the evidence, the Board must keep in mind 'the meaning of the term "total disability" which is set out in Article 42.2.4 in the Collective Agreement. We repeat it here, in part, for convenience purposes. It reads: 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 during the qualification period, and during the first twenty-four (24) months of benefit period;... The qualification period is stated in Article 42.2.3 and reads:~ 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 continue to use accumulated attendance credits on a day-to-day basis after the six (6) month Deriod. We interpret the qUalification period to be from April 8,· 1988, when she first was absent from work until October 8 when the six months had elapsed. The evidence reveals that during this period the grievor was seeing her physicians who periodically provided medical certificates on the grievor's behalf. The first certificate in evidence is'that of Dr. Wong dated May 31, 1988, wherein he states that the grievor is suffering from anxiety and insomnia and is not able to work for about two months. The next one that we have is the certificate from Dr. Brooks dated August t7~ 1988, saying that because of her medical problems it would be best that this lady not do overtime work at the present time. 33 This apparently was unacceptable to Mrs. Alty who £n her letter to the. grievor of August 17 stated that it would be necessary to provide her with a medical certificate. Mrs. Alty's letter was followed up by the Union requesting the reasons why she was being required to undergo medical examinations and wh~ information the Employer was seeking ~from her doctor (Exhibit 2, Tab 6). It will be.remembered that the grievor went to work at the Provincial Court in Mississauga on February 1, 1988, and remained there until April 8, 1988, whereupon she left because she did not like the work there. This transfer was prompted~because of her feeling of being harassed due to having fi'led a grievance over her unsuccessful application for a position at the Ontario M~nicipal Board. Her transfer was' aS a result of a settlement reached during the grievance procedure. In any event, the grievor absented herself from work on August 26, 1988, and 'has not returned since. On August 29, Dr. Brooks again Qrites that the patient feels she is unable to work for health reasons on August 29, 30, and 31 and states further that she had been seen due to her health problems' On September 1, Dr. Wong writes that the grievor is suffering from anxiety with chest pa.in and is presently being investigated. He states that she is advised to stay home and may return to work on September 19, 1988. Then on September 30, Dr. Brooks again saw her stating that she had not improved and that she would be remaining.off work 'until further notice. 34 Based on the above information, the grievor's application for Long. Term Income Protection benefits which would have been scheduled to begin on October 8, 1988, was denied. From the foregoing information can it be said that the grievor was under continuous total disability to perform any and every duty of her normal occupation during that qualification period as set out in Article 42.2.4? Both the Insurance Carrier and the Review Committee decided that she was not totally disabled within the meaning of that term. Can+it be said that the Insurance Carrier and the Review Committee were wrong in the conclusion they arrived at? We find it difficult to disagree with their conclusions. On May 31, 1988, Dr. Wong indicated that she would be unable %o work for about two months. This is not a prognosis that she is totally disabled. Moreover, she had not been at work since April 8, 1988. Further, when she returned to work in August she was there for approximately nine calendar days when she produced another medical certificate stating that she could not perform overtime work at the ~resent time° Again, on August 29 she produced a medical certificate stating that she would be unable to work on August 29, 30, and 31; and again on September I she produced a further medical certificate stating that she would not be able to return to work until September 19. In none of these situations have the doctors who were seeing her stated that she would not be able to return to work at any time in the future° There is no reference whatsoever that she is totally disabled. Dr. Br~ks' letter of .September 30 states that she Would be remaining off work until 35 further notice but again there is no reference that she will not be returning'eventually. Moreover, there is a thread running through all of the foregoing that a significant contribution to her inability to work was due to the environment in which she was working. She stated that the Employer at no time offered her work elsewhere, except, of course, in settlement of the grioevanca when she went to the Provincial Court in Mississauga. But the evidence is clear that once working in a changed environment she remained unsatisfied. We hear no complaints about the environment or working conditions at the Provincial Court nor is there any ~eference' to harassment. while working there. She states simply that she left because she did not like .the work ~here. Nor is there any evidence that she was absent from work during the period she was there. Nevertheless, once having left the Provincial Court in Mississauga on April 8 she did not. return to the Ontario Municipal Board until August 8. Further, we have no evidence that she visited any physician until May 31 when Dr. Wong wrote that she would be uhable t6 return to work for approximately two months. If we continue ~to review what transpired after October 8, 1988, we see very little change. Further, Dr. Wong on February 7, 1989, wrote to the Union stating that his view. was that her anxiety and depression was probably related to her work according to her information, and that she would not be able to return to her regular job under the present environment, but he went on to say ~hat there is no reason for her not to work as a word ® 36 processor under a different environment or to work in a different company. This does not indicate to the Board that the grievor was totally disabled at that time within the meaning of Article 42.2.4. Then in March, 1989, the grievor was diagnosed as having a cyst in her pelvic region and in April underwent surgery which later manifested itself in complications which clearly would not have permitted her to return to work during that period of time. However, it is to be noted that this ailment was totally unrelated to anything that had transpired previously and in our view cannot be connected with her inability to return to work when she had recovered from this particular ailment. On June 12, 1989, Dr. Wong stated that he expected sufficient improvement to take place in order that the grievor could return to her previous work or occupation within a period of six weeks (Exhibit 2, Tab 10, page 6). Then on July 31, 1989, Dr. Lalani stated on an application for welfare that he expected the grievor to be able to return to full-time employment in approximately two to three months. This continuing evidence after October, 1988, would indicate that overall the attending physicians were of the view that the grievor could eventually return to work. At no time was it stated by any of her physicians that she was totally disabled. After h~ving considered all of the evidence, it is tk'is Board's opinion that the Insurance Carrier and the Joint Review Benefits Committee's decisions to deny the grievor's application for Long Term Income Protection benefits cannot be criticized. It must be our decision, therefore, that the g~ievance be dismissed. Having reached the above conclusion it is unnecessary for this Board to enquire into and make a determination over who is liable to pay the benefits, the Employer or the Insurance Carrier. Accordingly, we decline to make such a determination. For all of the reasons set out above, the grievance is dismissed. · Dated ·at Kingston, Ontario this 16th day of J~ouar¥ , 199~. -Mr. G.Simmons - VICE Chairperson "I DISSENT" (Dissent attached) Mr. J.Carruthers - Member Mr. H. Roberts - Member DISSENT GSB #1299/89 L. WONG I regret to say that I am in fundamental disagreement with the decision of the majority in this case. I would award the grievor the damages requested and order that she be continued to be paid damages by the employer. Because of this, I will set out my reasons as to the Board's jurisdiction before dealing with the merits of this case. JURISDICTION The majority does not take issue with this Board's jurisdiction to hear this grieyance, nor could it in light of the Sekhon decision. However, the majority leaves undecided the issue as to the empl'oyer's liability. In light of the majority's recognition that this Board cannot order damages against the insurance carrier, the immediate question that comes to mind is what sort of jurisdiction this Board can have if it could not order damages against the employer. This Board is not established to decide abstract issues or to issue edicts. It is here to decide cases and grant remedies. It has the jurisdiction under section 19 of the Crown Employees Collective Barqainina Act to "decide the matter". The Divisional Court has told this Board that it has the jurisdiction to order meaningful relief (see, for example, Berry and MCSS, Ontario Divisional Court, March 13, 1986). Indeed, there is no right without a remedy. To say to a grievor that she can grieve the denial of LTIP, and then turn around 'and tell her she can get no monetary relief from her grievance would strike one as ridiculous. Thus, such a conclusion could only be reached if the law required us to do so. On the contrary, however, the legal precedents lead to the conclusion that the employer is liable for damages in respect of a denial of LTIP that violates the collective agreement. For example, in ICG Utilities Greater WinniDe~ Gas ComDan¥ (1989) 8 LAC 4th 289, the Arbitration Board hearing the case came to the conclusion that the employer was liable to pay benefits to the grievor that had been denied by the insurance company. It is evident from p. 291 of that decision that Appendix E in the collective agreement at issue in that case is essentially identical to Articles 42.2.1 to 42.2.4 in the Collective Agreement before us. At p. 292, the Board characterizes~ ancillary insurance documents and their relationship with the collective agreement as falling into one of four categories: 1. A plan or policy not mentioned in the agreement; 2. Where the agreement' specifically provides for certain benefits; 3. Where the agreement only provides for thel payment of' premiums; 4. Where the plan or policy is incorporated by reference. in the agreement. Th~ Board there Characterized the situation as falt~hg into 'category two, and I would do the same 'in respect of the collective agreement in this case. Before the recent amendments to the collective agreement, itL may well have been that the collective agreement fell into category three. However, in light. of the amendments and in light of the Sekhon case, there can be no doubt that this Collective agreement should fall under category two, as did the agreement in the ICG case. The parties went to great length in Article 42.2.3 and 42.2.4 to define the availability of benefits. There is no doubt in my mind that the payment of benefits to those meeting the requirements for them is an obligation of the employer, regardless of what some insurance company may or may not do. Other cases which support this conclusion are: Domqlas (1985) 22 LAC 3rd 355 at 363 and 365-366, Fleet Manufacturinq (1967) 18 LAC 311 at 318 to 319. In each of these cases, collective agreement language similar to that in Article 42 led to the conclusion that the employer was liable to pay benefits if the insurance company refused to do so. If Ms. Wong meets the requirements for LTIP, the employer is liable to pay her if the insurance company refuses. Otherwise, there would be no reason for the collective agreement to give the right to grieve the denial of LTIP. MERITS Given this Board's jurisdiction as to set out above, the issue is whether Ms. Wong can be said to be under a "total disability" within the meaning of Article 42.2.4. In my view, the evidence clearly supports the conclusion that Ms. Wong has been and is under a total disability. The Attending' Position's Initial Long Term Disability Benefits Statement filled.out by'Dr. Wong is clear. Dr. Wong states, in answer to the question "Date Total Disability Commenced?" that it commenced "April 8, 1988". (Exhibit 2, Tab 10). This evidence, as was all the medical evidence .... in this case, is uncontroverted by the employer and must be accepted by this Board, which is charged with deciding cases before it based on the evidence'put before it by the parties. Indeed, a review of the medical reports admitted into evidence by -this Board shows a very sad history of serious physical and psychological problems the grievor' has suffered. These include multiple somatic complaints (chest pain, neck pain and shoulder pain), chronic depression, panic disorder and panic attacks, dizziness, numbness of hands, fear of passing out, difficulty seeing and concentrating, adverse affects from anti-depressant drugs, a cys~adenoma and acute gastroenteritis. Medical reports in Exhibit 2 at Tabs 3, 7, 9, 10, 11, 13, 14, 16 and 19 describe .the serious medical problems that this grievor has been suffering since April 8, 1988. For example, Dr. Lalani's report at Tab 16, states that the grievor is suffering from a major depressive syndr0~e and from panic anxiety attacks of a disabling severity. Not only was this medical evidence not contradicted by the employer at the hearing of this grievance, the employer chose not to contradict it at all even prior to the h'earing. The employer was..content to have the grievor on short term sickness for six months. ~ The employer al~o never challenged the bona fides of the grievor's medical condition even after six months off work. The employer had the right under Article 52.9 of the collective agreement to require the grievor to submit to a medical examination. The employer never exercised this right. The employer must therefore be taken to accept the validity of the reports and the accuracy of their description of this woman's condition. Her inability to do her job was attested to by several doctors in the medical reports at the tabs set out above. Again, this evidence is not only uncontroverted, but also, up until recently, accepted by the employer. In these circumstances, I cannot see how this Board can put itself' in'a position of second guessing the doctors and siding with the employer. However, that is not the end o'f the story. The grievor testified .about her condition at this hearing. That evidence, too, is uncontroverted. Nor the can the grievor's credibility be doubted. Her depression problem is not something that just "popped up". She has a history of it, as the majority decision - 6 - points out. The grievor listed her debilitating symptoms, all of which are supported by the medical reports. These include: (a) multiple somatic complaints (supported by reports at Tabs 8 and 11 of the Exhibit 2); (b) chronic depression and anxiety (supported by medical reports at Tabs 3, 8., 10, 11, 13, 15, 16, 17 and 19 of Exhibit 2); (c)' dizziness (reports at Tabs 10, 16 and 19 of Exhibit 2); (d) numbness of hands, fear of passing out, difficulty of seeing and concentration (all supported by reports at Tabs 16 and 19); (e) adverse affects from anti-depressant drugs (supported 'by Dr. Lalani's report at Tab 15). Moreover, the griev°~ has been in serious financial difficulty throughout her illness. She has no means of support and is on welfare (see Tab 15 of Exhibit 2).. She therefore had every incentive to work, and indeed tried to do so in the fall of 1988, but failed because of her medical problems It strains credulity to suggest that anyone in the grievor's circumstances could be malingering. In the face of this overwhelming evidence, the. majority of this panel of the Board has seen fit to deny the grievor her benefits. In my view, it ha~ done this on the basis of an erroneous view of the collective agreement language at issue. Article 42.2.4 bases entitlement to benefits on "total disability". That Article does not say "permanent disability". Thus, the majority's concern that the attending physicians "were of the view that the grievor could evidentially return to work" at p. 36 of its decision, is completely misplaced. Certainly, some of the medical reports indicated that the grievor was expected to return to ~ork at some point in time. Of course, many of the medical reports indicated that there was no fixed time for her'return (see Tabs 9, 10, 11, 13 and 16). In any event, however, the issue is not what the prognosis is, but what the diagnosis is. There is ample evidence'in the medical repQ~ts to support that this woman was incapable of doing her job. The fact that at some point some doctor made a prognosis that she would be able to return to work, which prognosis later turned out to be erroneous, cannot be a factor in the decision as to whether disability is "total" Disability is total under Article 42.2.4 if the grievor is not able "to perfor~ any and every duty of his normal occupation". The medical evidence in this case is that this woman was incapable of doing her word processing duties and this is borne out by her attempt to do so in the fall of 1988. The majority is simply wrong to read other, unrelated, requirements into the language. The majority is also plainly wrong to state that "At no time was it stated by any of her physicians that she was totally disabled" (p. 36). As I pointed out above, Dr. Wong said exactly.this in his medical report at Tab 10. Furthermore, the majority seems to have some concern that ,,a significant contribution to her inability to work was due to the environment in which she was working" (p. 35). This, too, has nothing to do with the issue .before this Board. Total disability can be "the result of illness, mental disorder or injury", according to Article 42.2.4. There is absolutely no requirement that the condition not be connected with the workplace. If the parties had intended such a requirement to apply, they could have easily written it into the language of Article 42, as they could have written in a requirement that the disability be permanent. The parties did not do so and it is not for this Board to rewrite the ~ollective agreement for the parties. Final!.y, the majority puts too much weight on the conclusion reached by the insurance carrier and the Review Committee. The majority asks itself whether the conclusions they reached were wrong (p. 34). This, of course, is not the right question to ask. The Review Committee itself comprises equal numbers of employer and employee members. Its main function is to recommend insurance carriers. Its opinion cannot be of any assistance to this Board in coming to its conclusion. We do not know what motivated the panel,, who decided what, what the split was in the decision-making, etc., etc. Furthermore, the insurance carriers' decision to not' pay benefits cannot enter into this Board's decision making process. I't is the cause of the grievance, not the solution to it. The carrier may well have its own reasons - 9 - for denying coverage. Of course, it can hardly be said to be independent or conducting an independent inquiry, given its vested interest in the matter. It is very troubling to me that the majority of this Board should put any reliance on those decisions. In the end, I am driven 'to the conclusion that on any fair rea_ding of "total disability" in the collective agreement, this grievor must be paid her benefits. The employer has seen fit to not challenge this grievor's condition or the medical reports regarding her condition up until this hearing. Its position at this hearing smacks of opportunism and ought not to be rewarded by this Board. I would have issued a declaration that this grievor is entitled to damages and an order that she be paid all benefits owing to her under the collective agreement. I would have also remained seized with respect to'the'implementation of the remedy. OPSEU (WONG) - 1299/89 I have baden opportunity to review the comments contained., in the .minority opinion and have decided that a few comments are warranted in connection therewith. I have reviewed the ICG case referred to in the minority opinion and, in my view, it is distinguishable from the instant situation. In ~ at page 290 it is noted that the Employer terminated the grievor "because, in its judgment, he was sufficiently disabled such that he could not perform his duties, or any duties which would be found for him." The grievor in IC___~G was then placed on LTIP so in that case the grievor satisfied both the Employer and the insurance carrier that he was entitled to Long Term Insurance Benefits'. Further, in ICG when the insurance carrier terminated the benefits', the Employer continued to be of the view that the grievor was entitled to such benefits but that he had %o look to %he insurance carrier for relief. That is not the situation in the instant case. Bcth'the Employer and the insurance carrier, as well am the review committee, take the view that the grievor is not totally disabled and that she therefore is not entitled to receive Long Term Income' Protection benefits. Further, unlike the grievor in ICG, she has never received such benefits. The Board in ICG w~nt on to find that the Employer was wrong in terminating the grievor and that .the Collective Agreement 3AN 16 '9i 08:49AM ELI¥~ TYPIN~ SERV. provided specific benefits for employees. At page 295 the Board states: "In the Company's view Wentland (the grievor) ks disabled. He is $O disabled that on that basis it decided to terminate his employment.~' The Board went on to determine that the grievor ~a~ not justly terminated and ordered his reinstatement, once reinstated, he was entitled to LTIP and the Board found that the Empioyar had contracted to provide the benefits and the grievance succeeded. In the instant situation, the Board states in the second full paragraph on page 20 that the Board does have jurisdiction to review and enquire into the' grievance-on its merits unlike the ~ooey case and in keeping with the Sekhon decision. However, the approach taken by the Board in =he instant situation was to enquire into whether or not the grievor was totally disabled pursuant to Article 42.2.4 in the Collective Aqreemen=. Upon a review of the evidence the Board agreed with the conclusions of the Review Comz~lttee, the Employer, and the insurance carrier that she was not totally' disabled pursuant to =hat article. Once having reached that conclusion, it was the decision of the majority to proceed no further as it was not necessary to do so in light of our conclusions for reasons set cut in the majority opinion. The minority opinion, in its first three pages, WOuld have the Board decide that issue irrespective of any other finding. In the view of the majority, the resolution of that issue should await a tame when it is necessary %~ do so. · JAN 16 'gl OI:BP-PM ELITE TYPING SERV, Turning next to the "me,its" of the minority opinioD there are a couple of oomments that are warranted. The first full paragraph on page 4 of the minority opinion would indicate that one of the doctors, Dr. Wong, gives the impression that the grievor was totally disabled pursuant to Exhibit 2, Tab 10. I wish to point out that Exhibit 2, Tab 10 is a form issued by the Employment & Immigration Canada Department. This form was presented to Dr. Wcng for completion which, as stated on page 28 of the majority opinion, Dr. Wong filled out on February 23, 1989. It reads in part as follows: 1. History (a) ~en did symptoms first appear or accident happen? Month April Day 19 _ 87 (b) Date total disability commenced? Month .. _Apr/1 Day (c) Has patient ever had same or similar condition? If "Yes" state-when and describ~ (d;is condition due to injury or sickness arisinq out of patient's employment? (e)Names of other treating physicians. Dr. E. Brown, psychiatrist Unfortunately, the minority opinion' did' not bother to look at tbs remainder of the form which states in Item'S8 the following: e. Do you expec~ su£~lcient improvement to ta~e place in,he mental or physical condi=ion Of this patient to allow him/her a) return to his/her previous work or occupation [43 ~f yeI, when7 6 week~ full or part-time (hours/day) .. b) return to any other type of work of occupation If yes, when? full or part-time (hours/day) Nature of work I¢ was noted by the majority that this is a form document which asks specific questions. Given the nature of the document and the resgonses of Dr. Wong the majority, in weighing it~ s±gnifiuance, together with the do~um~neation =hat ~ollowed, gave it little weight. This is due largely ~o the sub~=quent documentations that were filed which reveale~ the phy~ioiana writing ou= their statements, either ~ certificates or lette=$, ~h~ch reveal tha~ in their o~inion .the grievor is capable of returning to work at ~ome future date. The preponderance of medical evidence is to the effect =ha~ the grievor is not to=ally disabled, we accepted that evidence, as did t_he Review Committee; t~e Empioyer~ and the insurance =ompany. Furthermore, it ~hould be stressed that at the co~tr~enceme~2 of these proceeding~ the hearing was adjourned in order to allow the Review Committee ~n opportunity to review two additional letters from physicians that had not previously been s~mi=ted to it. When we reconvened we were informed than the Committee had not altered its 09in!on, that the grievor was "not totally disabled". This' co:zment is offered to point out ~ha= Coz~mittee had all of the in£o~a=Ion before iU that both parties de~ired when it made its de¢i~ion. The majority agree that the evidence reveals a medical htsto~ in the instant mituation. ~ut, with respect, that Is no= the issue. The issue is whether or not the grievor is totally d±~abled within the meaning of A~l¢le 42.2.4 in the Collective Agreement. In order to dete~ine that issue =he Board relied on =he medical evidence that was present~ =~ i= in addition to the v~va vocw evidence. Having been provided with =he available evidence, it was the majority's conclusion that the grlevor is not "totally disabled" within the meaning of that a~icle in the Collective Agreement and therefore the majority had no alternative but to dismiss the grievance. Dated at Kingston, Ontario this day of ~. ~,'1991.