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HomeMy WebLinkAbout1999-1141.Hauth.00-09-26 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 1141/99 1145/99 OPSEU #99E091 99E097 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Hauth) Grievor - and - The Crown m RIght of Ontano (Mimsm of the SOhCltor General and Correcnonal ServIces) Employer BEFORE Loretta Mikus Vice Chair FOR THE Mm MacKmnon GRIEVOR Bode & MacKmnon Bamsters & Sohcltors FOR THE Andrea Kuprej anov EMPLOYER Staff RelatIOns Officer Mimsm of the Sohcltor General and Correcnonal ServIces HEARING Juh 6, 2000 2 The gnevor Dean Hauth, IS a CorrectIonal Officer With the Mimstry of the SohcItor General and CorrectIOnal ServIces. In 1999 he filed a gnevance allegIng that he had been demed short term benefits under artIcle 41 of the collecnve agreement wmch reads as follows ARTICLE 41- WORKPLACE SAFETY AND INSURANCE 41 1 Where an employee IS absent by reason of an Injury or an occupanonal disease for wmch a claIm IS made under the Workplace Safety and Insurance Act, ms or her salary shall connnue to be paid for a penod not exceeding thIrty (30) days. If an award IS not made, any payments made under the foregOIng proVIsIons In excess of that to wmch he or she IS enntled under ArtIcle 44 1 and 446 (Short Term SIckness Plan) shall be an amount oWing by the employee to the Employer 41.2 Where an employee IS absent by reason of an Injury or an occupanonal disease for whIch an award IS made under the Workplace Safety and Insurance Act, hIS or her salary shall connnue to be paid for a penod not exceedIng three (3) consecunve months or a total of sIxty-five (65) workIng days where such absences are IntermIttent, follOWing the date of the first absence because of the Injury or occupatIOnal dIsease, and any absence In respect of the Injury or occupanonal dIsease shall not be charged agaInst ms or her credits. 41 3 Where an award IS made under the Workplace Safety and Insurance Act to an employee that IS less than the regular salary of the employee and the award apphes for longer than the penod set out In ArtIcle 41.2 and the employee has accumulated credIts, ms or her regular salary may be paid and the dIfference between the regular salary paid after the penod set out In ArtIcle 41.2 and the compensatIOn awarded shall be converted to ItS eqUIvalent nme and deducted from hIS or her accumulated credIts. 414 Where an employee receIves an award under the Workplace Safety and Insurance Act, and the award applIes for longer than the penod set out In ArtIcle 41.2 (i.e. three (3) months), the Employer will connnue subSIdies for BaSIC LIfe, Long Term Income Protecnon, Supplementary Health and HOSpItal and the Dental Plans for the penod dunng wmch the employee IS reCeIVIng the award. 41 5 Where an employee IS absent by reason of an Injury or an occupanonal disease for whIch an award IS made under the Workplace Safety and Insurance Act, the employee shall not be enntled to a leave of absence WIth pay under ArtIcle 44 (Short Term SIckness Plan) as an opnon follOWIng the expIry of the Apphcanon of ArtIcle 1.2. 3 The partIes provIded me With the folloWing agreed statement of facts 1 Dean Hauth has been employed by the Mimstry for 10 years and has a contInUOUS servIce date of January Jd 1990 He works as a CorrectIOnal Officer at the Thunder Bay Correcnonal Centre 2 Mr Hauth was ongInally Injured In 1991 while workIng at the Thunder Bay Youth Centre, when he twIsted ills back while remOVIng a Young Offender from a dormItory to the segregatIOn area. The Injury was re-aggravated a short nme later on January 20 1992, while Mr Hauth was In Mimstry traImng at Bell Cairn. These Injunes were approved by the WCB as separate claims. 3 Mr Hauth's back was re-Injured on September 6th 1993 when he slIpped on a set of garden shears In the garage at Thunder Bay CorrectIOnal Centre, and jarred ills lower back, resulnng In a lumbar disc Injury ThIs Injury was approved by the WCB as a separate claim. 4 Mr Hauth has the folloWIng recogmzed WSIB Claims WIth thIs employer With the folloWing accIdent dates and Injunes recorded. March 15 1991 Left Lower Leg Claim No 18068300-U December 8 1991 Back Claim No 18410111-U January 20 1992 Left SIde & Back Claim No 184557636-U October 5 1992 RIght Hand Claim No 18767762-U February 4 1993 Left Shoulder Claim No 18892966-U Left Lower Arm September 6 1993 Back Claim No 19142105-U Apnl 29 1995 Internal Abdomen Claim No 19814464-U August 19 1997 Upper Back Claim No 20730972-U 5 WithIn the September 6 1993 claim (19142105-U), Mr Hauth has lost tIme as follows. September 6 1993 to November 1993 49 5 days ongInal Injury July 29 1994 to August 8 1994 5 days recurrence 1995 flare up (accepted for chIropractIc but no lost nme) recurrence 1996 flare up (accepted for chIropractIc but no lost nme) recurrence June 24 1997 to August 15 1997 645 days recurrence December 9 1997 to January 29 1998 11.25 days recurrence March 21 1999 to October 25 1999 72 days recurrence 4 6 Mr Hauth suffered a recurrence m 1994 and was off work from July 29th 1994 to August 8th 1994 ThIS recurrence was recogmzed by the WCB under claim 19142105 7 In 1995 Mr Hauth had a flare-up m ills back condiTIon as a result of prolonged sIttmg and had cillropractIc treatment. He did not lose any tIme off work m 1995 ThIS re-Injury was recogmzed by the WCB under claim 1914105 Health care benefits were approved by the WCB 8 Mr Hauth had a further flare-up In 1996 and reqUIred cluropracTIc treatment at that TIme as well Health care benefits were approved by the WCB under claIm 19142105 9 Mr Hauth suffered a recurrence of ills lower back mjury m 1997 and lost sporadIc days from June 24th 1997 to August 15th 1997 ThIS lost TIme was allowed by the Worker's CompensaTIon Board, as a recurrence, under claim 19142105 10 In 1998 Mr Hauth suffered a recurrence on March 21 1998 He was off work from that date unTIl May 22, 1998 when he returned to work on a graduated modified hours program, that was m effect for a 4 week penod. ThIS lost TIme was allowed as a recurrence by the Worker's CompensaTIon Board under claim 19142105 11 Mr Hauth suffered further recurrences under claIm 19142105 In July 1998 and August 1998 He returned to work October 26 1998 to full ShIftS In a temporary accommodated posItIOn. 12 In late 1998 Mr Hauth was granted a Non EconomIc Loss benefits by the WSIB under claim 19142105 m recogmTIon that ills back conditIOn IS a permanent Impairment. 13 The 1998 lost tIme totaled 67.25 days mcludmg the January 1998 penod. 14 In February 1999 the gnevor shpped on Ice at work, re-aggravaTIng ills back. ThIS occurred on February 24th 1999 Mr Hauth's back pam gradually worsened until March 5th 1999 when he lost one day of work. He was then off from March 15th 1999 to March 17th 1999 March 24th to March 26th 1999 March 29th to March 31 st 1999 and from Apnl rt 1999 to May rt 1999 when he lost 14 - 12 hour sillfts. These sillfts were recognIzed by the Workplace Safety and Insurance Board as recurrences under claim 19142105 5 15 ArtIcle 41.2 of the Collecnve Agreement (and Its Idenncal precursors) have been In place SInce 1977 16 On June 17 1999 the gnevor was adVIsed by letter from John MackenzIe, Deputy Supenntendent, that ills 65 day penod of full pay under claim 19142105 had expIred m May 1998 and that he would be removed from pay on March 24 1999 17 Mr Hauth's banked credits were used to supplement hIS WSIB claim momes, and he remamed on payroll until June 27 1999 He then went on WSIB pay dIrect and was paid 85% of ills net salary by the WSIB He applIed for and receIved LTIP He returned to work on October 25th 1999 when he was fit to return to work. Ms. Mackmnon, counsel for the Umon, took the posInon that the "award" referred to m artIcle 41.2 should be mterpreted to mean any claim under the WSIA. She asserted that the WSIB does not differennate between a new claIm and a recurrence m consIdenng whether to grant benefits and that the collectIve agreement does not contaIn any language that would suggest different consIderatIOns ought to apply when grantmg benefits under ItS provIsIons. Further the WSIB recogmzes that a recurrence of an old claIm can be the result of a new mJury It was stated that artIcle 41 1 shows the partIes IntentIOn that an award from the WSIB would be Imnated by a claIm for benefits. It IS that claIm that IS the precIpItanng event from willch the benefits under 41.2 anse The Umon also suggested that there were pohcy reasons to allow tills gnevance The Board should take JUdICIal notIce of the fact that people WIth back mJunes are at more nsk than others for further mJury In cases such as the mstant gnevance, the benefit of the doubt should go to the mJured worker who stands to lose the most. OtherwIse there IS less mcentIve to return to work qUIckly If there IS a nsk that mtermIttent absences will Jeopardize one's credits under artIcle 41.2 AddInonally the Employer's mterpretanon will result m a discnmmatory apphcation of the collectIve agreement. Employees suffenng a workplace mJury will be penahzed for mtermIttent absences while an employee WIth an illness or mJury unrelated to the workplace would contmue to receIve benefits. In the alternanve, the Umon took the posItIOn that the Employer IS estopped from relYIng on ItS mterpretatIOn of artIcle 41.2 because of the delay m nonfYmg the gnevor that ills benefits had expIred. 6 The Employer claIms that ms benefits expIred m March of 1998 but did not advIse mm of that until June of 1999 In the meanTIme the gnevor took no steps to utilIze other benefits under the collecTIve agreement that would have avoIded any overpayment. The Employer IS estopped from now claImmg that overpayment If thIS Board should accept ItS mterpretatIOn. In the final alternaTIve, If thIs Board should accept the Employer's mterpretatIOn of artIcle 41.2, the Umon argued that the gnevor's last accIdent m February of 1999 when he slIpped on the Ice at work, should be consIdered a new claim. The relapse was the result of separate accIdent and constItutes a separate claIm. Ms. Kuprejanov for the Mimstry raised two prehmmary objeCTIons to my junsdict10n to hear tms gnevance At Issue m the mstant gnevance IS the mterpretaTIon of artIcle 41.2, wmch was the subject of a prevIOUS arbItratIOn before Professor Roberts (GSB # 421/82) In that case the Board determIned that a recurrence of an eXIstmg condiTIon did not tngger a new 65 day enTItlement under artIcle 53 02, wmch was, for all matenal purposes, IdentIcal to artIcle 41.2. That decIsIOn was never appealed and stands today as the proper InterpretaTIon of that provIsIon. AddiTIonally It was stated that the Umon IS estopped from challengmg that mterpretaTIon at thIS late stage. The Manual of AdmmIstratIOn for management and excluded employees dated March 10 1986 states as follows Penod ofPav MaIntenance IfWCB makes an Award When an employee IS absent because of an Injury or Industnal dIsease for whIch an award IS made under the Workers' CompensatIOn Act, regular salary shall conTInue to be paid for . a penod not exceedmg three consecutIve months or . a total of 65 workmg days where such absences are mtermIttent followmg the date of the first absence because of the mjury or dIsease. r ref. PSA Reg 67(2)1 Subsequent Absence Due to Recurrence ofWCB InjUry: If an employee was not absent for three conseCUTIve months or 65 workmg days at full salary under an ongmal WCB award, and IS agam absent because of the same Illness or mjury full salary shall be maIntamed up to and mcluding the 65th day of absence under 7 thIs award. The employee will then receIve the award dIrectly from WCB unless It IS supplemented With accumulated credits, m wmch case the employee remams on payroll. In addItIOn, the CORP A Y Pay and Benefits Procedures Manual from the Mimstry of CorrectIOnal ServIces dated September 1992 states When approved for Workers'CompensaTIon award, an employee's salary IS mamtaIned at 100% for the balance of three consecutIve months, or 65 mtermIttent workmg days for each new claIm. Insured benefits are mamtaIned as If the employee were at work. In the mstant case, there IS no dispute that the gnevor's WSIB benefits were awarded under the ongInal claim of 1993 that IS claim # 19142105 These subsequent claims were, at all tImes, consIdered recurrences of that ongInal claIm according to the WSIB"s own defimTIon. In ItS WSIB ClaIms GUIde for OPS Managers, It was stated that a recurrence was a return of symptoms sImIlar to those expenenced at the tIme of the ongInal disease, mjury or ImpaIrment. It was further stated that a recurrence IS "evIdent when there IS ObVIOUS medical compatibIhty between the ongInal dIagnosIs and the recuffing medIcal problem or an appropnate combmaTIon of medical compatibihty and COnTInUIty" In summary the Employer took the pOSITIOn that the matter before me has been decIded by a preVIOUS GSB panel and that thIS Board should be bound by that decIsIon. The Umon IS estopped from seekmg an mterpretatIOn mconsIstent With the Robert's Board. The Employer has rehed on that award, has developed and Implemented pohcIes consIstent With that award, WIthOUt objecTIon, and Will suffer extreme detnment If thIs Board should come to a different mterpretaTIon after all thIs TIme. In reply the Umon asserted that the Robert's Board apphed the wrong test m consIdenng what constItuted a recurrence TheIr test was more stnngent than the WSIB's. It reqUIred a heahng of the first mjury and an extraordmary event causmg a new mjury The Umon submItted that thIs Board can refuse to follow the Robert's Board If It IS saTIsfied that It was patently wrong. It rehed on several decIsIOns of the Ontano Workplace Safety and Insurance Appeals Board as the appropnate test for thIS Board to apply In those cases new accIdents were treated as recurrences If they were mSIgmficant and If the cntena of medIcal compatibIhty and COnTInUIty were satIsfied. It was SaId that, after consIdenng 8 the OWSIA T deCISIons, thIs Board should have no hesItaTIOn In comIng to a different conclusIOn than the Roberts Board. REASONS FOR DECISION The gnevor has suffered several workplace accIdents wmch have resulted In distInct awards from the WCB or WSIB One of the accIdents has resulted In recuffing problems wIth hIS back, shoulder and neck. There was no dIspute that each separate claim With the WSIB gIves nse to a new enTItlement to 65 days under artIcle 41.2. The only real dispute IS whether the IntermIttent absences referred to In that artIcle are meant to Include all absences from an ongInaTIng Injury or whether each recurrence of an Injury conSTItutes a new claIm wmch would tngger nghts under artIcle 41.2. The Employer rehes on the 1982 decIsIon of the Roberts Board as the defimTIve answer to tms queSTIon. the Umon asks me to reject the Robert's Board conclusIOns and to come to a dIfferent result based on a dIfferent, and In ItS vIew the proper test. That Board had before It vIrtually the same language as before me In artIcle 41.2. It defined the Issue before as follows The Issue raised by the partIes was whether a recurrence of a pre-exIstIng shoulder Injury wmch had been the subject of a preVIOUS Workmen's CompensaTIon Award sufficed to "tngger" under artIcle 53.2 a second 65-day penod of absence at full pay The Robert's Board, unlike thIS Board, had no eVIdence of any past praCTIce With respect to the apphcaTIon of thIs provISIon, even though It noted that the provISIon at Issue had been In the collectIve agreement for 20 years and "must have been apphed In an open and notonous manner In many sImIlar CIrcumstances to those of the present case" The gnevor In the Robert's case had suffered a workplace aCCIdent In 1976 and had mIssed 33 days of work through an award from the WCB She had recuffing bouts of paIn WIth IntermIttent absences as a result. In 1981 through the aggressIve act of a paTIent, she suffered another relapse and was prevented from workIng for another 58 days. For the totahty of her absences from work the employer treated her as If her absences related to that ongInal Injury In 1976 Only the first 65 workIng days were paid at full salary under artIcle 53.2 9 In dOIng that, the Board stated, at page 7 The Employer suggested that If Its posItIOn was not accepted the partIes never would have negotIated specIfic language relanng to IntermIttent absences, SInce each absence mIght be defined as relanng to a new InJury (or re-InJury) that once agaIn starts the "clock" of ArtIcle 53.2 runnIng. We disagree First of all, It seems to us that there can be a number of reasons for an IntermIttent absence folloWIng an InJury e.g. absences for therapy additIOnal treatment, further surgIcal procedures beIng made on a progressIve basIs, etc There mIght be one other reason for IntermIttent absences, and thIs IS the most Important reason for purposes oftms case The reason IS that It IS possible that In the performance of hIS or her ordInary assIgned dunes In the workplace an employee WIth an pre-eXIsnng InJury that has not healed mIght aggravate that InJury and hence reqUIre IntermIttent pen ods of absence CertaInly It would be correct to conclude that where a pre-exIsnng InJury IS aggravated In thIs sense, the resultant absence does not tngger the runnIng of a new tIme penod under ArtIcle 53.2 While the aggravanon of a pre-eXIsnng InJury would not tngger the runmng of another 65 day penod of full salary under ArtIcle 53.2, It seems to us that a bona fide recurrence of a "healed" pre-eXistIng InJury It seems to us that two condinons would have to be fulfilled(sIc) First, the ongInal InJury must have "healed" In the sense of there beIng no reasonable expectanon of further aggravanon or repennon of the InJury In the performance by the employee of hIS or her usual course of assIgned dunes. Secondly the event caUSIng the recurrence would have to be extraordinary In the sense of beIng outSIde the usual course of thIngs to be expected In the performance of the assIgned dunes of the employee Absent sansfacnon of these two condInons, It seems to us that only an aggravatIOn of the pre-exIstIng InJury would have occurred. The Umon has argued that the Roberts' Board was Incorrect when It found that a pre-exIsnng InJury would only tngger a new claim under ArtIcle 53.2 If the It had healed to the pOInt that there was no reasonable expectanon of further aggravanon or If the re-InJury was the extraordinary result of somethIng outSIde of the usual performance of the employee's dunes. That argument, however IS InCOnSIstent With the plaIn words of the collectIve agreement. ArtIcle 41.2 states that an employee IS enntled to full salary for 65 days folloWing an award by the WSIB If the partIes Intended that provISIon to apply to each IndivIdual absence from that same InJury they would not have Included a speCIfic reference to IntermIttent absences. The fact that they did must be Interpreted to mean that IndiVIdual absences from that same InJury were to be treated as If they were part and parcel of the same total of 10 65 days. OtherwIse there would have been no need to dIfferennate between one contmuous absence and mterrmttent absences smce each one would have been covered separately by artIcle 41.2 Addinonally the parnes were careful to ne the mterrmttent absences to the "first absence" That reference to the first absence must have been mtended to mean the first absence of the ongmanng claim and remforces my opIllion that the parnes did not mtend to charactenze each mdIvIdual absence as a new or fresh claim for benefits under artIcle 41.2. In my VIew the Robert's Board came to the nght conclusIOn. For those reasons, the gnevance IS dismIssed. Dated at Toronto, thIS 26th day of September 2000 Loretta Mikus, Vice-Chair