HomeMy WebLinkAbout1994-2319ASANOSKI99_06_03
OfflARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'OfflARIO
11111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396
GSB # 2319/94
OPSEU # 95C222
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(AmdI Asanoski)
Grievor
- and -
The Crown In Right of Ontano
(Mimstry of TransportatIOn)
Employer
BEFORE Loretta Mikus Vice-ChaIr
FOR THE Peggy E SmIth
GRIEVOR Counsel, ElIot, SmIth
Barnsters & SoliCitors
FOR THE Jonathan Cocker
EMPLOYER Counsel, Legal ServIces Branch
Management Board Secretanat
HEARING May 19, 1999
The gnevor, Mr AmdI Asanosla, gneves that hIs nghts under sectIOn 42 of the collective agreement
have been vIOlated. He asked that those nghts be restored retroactIvely The nghts he referred to
111 hIs gnevance relate to the provIsIons for Long Term Income ProtectIOn (L TIP) The plan allows
for 66 2/3% of an employee's gross salary after an mItIal qualIfymg penod of 6 months. In
partIcular, the Plan prOVIdes as follows
42 2 4 Total dIsabIlity means the cont1l1uous 1I1abilIty as the result of Illness,
mental dIsorder, or mJury of the msured employee to perform the
essential dutIes of hIs normal occupatIOn dUrIng the qualIfymg penod,
and dUrIng the first twenty-four (24) months of the benefit penod, and
thereafter dUrIng the balance of the benefit penod, the mabllIty of the
employee to perform the essential duties of any gamful employment
for wruch he IS reasonably fitted by educatIOn, trammg or expenence
The gnevor began workmg for the Employer m 1989 as a Sign Pamter Helper, WhICh mvolved the
manufacture, erectIOn and replacement of SIgnS. He had dIfficulty performmg hiS dutIes because
of left thumb and hand pam. On November 23, 1990, he went off work on Long Term DIsabIlity
benefits (L TIP) and, untIl October of 1992, was found to be totally dIsabled from perform1l1g hIs own
occupatIOn. He was advIsed by ConfederatIOn LIfe m June of 1992 that hIS claim was bemg
reassessed and that, m order to contmue to receIve benefits, he would have to be wholly and
contmuously disabled from perform1l1g any and every duty of any occupatIOn for whIch he was
reasonably fitted by trammg, educatIOn and expenence. A medical assessment later that month
stated, m part, as follows
.Based on Dr HUl's medIcal file mformatlOn, AndI was complammg of pam m hIS
mid-back, radIatmg to the front. Dr HUl advIses that Andl should return to alternate
work, but not to hIS prevIOus posItion as a SIgn Pamter Helper The only phYSIcal
restnctlOn Dr HUI Imposes IS that the new alternate posItIOn should not reqUIre
undue exertIOn of the left upper lImb Dr HUI also commented that Andl IS now
mentally ready for an attempt to return to work.
- J-lis benefits were extended another three months, to January of 1993, to give hIm time to pursue
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alternative employment. Ultimately he was demed benefits and he appealed that decIsIOn to the Jomt
Insurance Benefits ReVIew CommIttee He also filed a gnevance askmg for hiS nghts under ArtIcle
42 - Long Term Income Plan, namely retroactive benefits.
A September medIcal note from Dr KadIsh, an orthopaedIc consultant, could find no cause for hIS
Intermittent ankle paIn but concluded that the gnevor would not have a full recovery but would
Improve enough to cope more effectIvely He was seen In November of 1992 over problems with
hIS left foot and was prescribed physIOtherapy In December he was diagnosed as haVIng a fallen
arch and prescnbed an orthotiC for hIS shoe Throughout thiS tIme, and predatmg hIS employment
wIth the MImstry, the gnevor was reCeIVIng psychIatnc care as well.
All of the medIcal reports supplIed by the gnevor are consistent. They recommend the gnevor return
to work, wIth accommodatIOn. For example, hiS psychlatnst stated as follows, on June 14, 1993
It IS my opInIOn that Mr AsanoskI' s psycruatnc status Will not Improve m any future
employment he would functIOn best 111 a structured SItuatIOn where the Job
reqUIrements are uncomplIcated, he has a understandIng and non-Judgmental
supervisor and hIS contact With other workers IS kept to a mImmum (e g. a couner
or delIvery person) Ifthose condItIOns can be provIded for rum, then I feel he could
begIn work at any time
The medical reports concernIng hIS ankle, wnst and shoulder paIn do not state that he IS unable to
work. Dr TaploskI, from the Rosemount FamIly Medical Centre stated.
I thInk he should look for a Job reqUIrlng frequent changIng of pOSitIOn, Without
heavy lIftmg or mImmal lIftIng. Because of depressIOn, he needs positive response
His phYSIOtherapIst stated.
I feel he would be most SUIted for Jobs reqUIrlng frequent changes of pOSItIOn - I e
sIttmg, standmg, walkIng, lIght lIftmg or carryIng With lIttle bend1l1g and a mInImUm
of time In a stooped pOSItIOn.
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It IS clear that the medIcal eVidence dId not support the gnevor's claim that he was unable to work.
He could have returned to modIfied work. Instead he pursued a claim for total disabilIty benefits,
WhICh he was not entitled to In the CIrcumstances. For these reasons the gnevance IS Ulsmlssed.
Dated at Toronto, OntarIO, thIS yd day of June, 1999
~ )ld4<-o?
Loretta Mikus, V Ice-Chair