HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marilyn McMahon-Ayerst
Applicant
-and-
Revera Long Term Care Inc. and Marvin Kalchman
Respondents
case Resolution Conference DECISION
Adjudicator: David Muir
Indexed as: McMahon-Ayerst v. Revera Long Term Care
AppearanceS BY
Marilyn McMahon-Ayerst, Applicant ) on her own behalf
Revera Long Term Care Inc. ) Emily McKernan,
and Marvin Kalchman, Respondents ) Counsel
1This is an Application made under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Case Resolution Conference (CRC) was held in Toronto on April 14and 15, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant, two employees of the respondent corporation as well as the individual respondents.
3The applicant alleges that she has been discriminated against in employment on the basis of a disability. In particular, it is alleged that the respondents treated her differently than other ill or disabled employees in the manner in which it processed her short-term sickness claim. The applicant alleges that she was subject to differential treatment when the employer urged her to sign a medical release and when it failed to, commission an independent medical examination when it was clear there was a dispute about her level of disability. It is also alleged that the respondent employer interfered in her claim for long term disability benefits from a third party insurer and subjected her to harassment because of her disability. In general terms, the applicant alleges that because the illness which caused her to be away from work was psychological the employer targeted her and subjected her to abuse with a view to her either quitting or the employer terminating her employment.
4The applicant also states that she was subject to a reprisal, however no evidence was led that would support a finding that there was a reprisal as provided for in section 8 of the Code.
5A key issue in this Application is the applicant’s allegations related to the handling of her short term disability claim. The employer self-insures for this benefit but it has contracted out the assessment of entitlements to benefits to a third party, Organizational Solutions (“Solutions”). It has also delegated responsibility for initial illness and disability accommodation to Solutions. The respondent employer argued that it could not be held liable for violations committed by Solutions. For reasons set out below, I reject that argument. In my reasons below, references to the employer may include a reference to Solutions.
6The Application is dismissed. My reasons follow.
Background Facts
7The applicant was a managerial employee of the respondent. She had been employed for about eight years before she began her leave. She was a good employee.
8The employer has a short term sickness plan which provides up to 17 weeks of short term disability. As indicated above, the employer has contracted out the management of its short term disability plan to Solutions. Solutions seeks information from claimants, makes assessments and provides recommendations to the employer. The respondent has chosen to do this, in part to protect the privacy of its employees. Sensitive medical information that may be required to assess entitlement to benefits or to assess what accommodations might be required for an employee can be disclosed to Solutions and not to the employer. The rationale for this approach makes some sense, but it did have some impact on how these parties were able to resolve what became a dispute over the applicant’s ability to work, or not.
9The applicant became ill in January 2006 and began an authorized leave for medical reasons. Her last day of work was January 11, 2006. She claims to have been ill and completely disabled from work until at least April 2007 when she claims that she was constructively dismissed. It was agreed that except for some aspects of the remedies claimed, events surrounding the alleged constructive dismissal are not before me as there is a civil suit ongoing between the parties dealing with those issues.
10The applicant submitted a short term disability claims form to Solutions in a timely manner. Although not required to do so, she submitted a copy to the corporate human resources department of the respondent. The benefits claim form requires information from the claimant’s family physician.
11The applicant’s family physician, Dr. Young, a general practitioner provided some information including a description of her symptoms which were psychological in nature. Dr. Young also advised in a somewhat contradictory way that it was expected that the applicant would be off from four to six weeks and elsewhere in the form that the anticipated return to work was unknown. Most significantly for what follows, the doctor described the applicant’s functional limitations as “unable to cope, manage.” This brief statement was apparently misinterpreted by Solutions as meaning that the applicant was unable to cope with her manager. This was not the case, but this misunderstanding was to have significant consequences for the parties. Dr. Young also noted the applicant was being referred for treatment to an unidentified practitioner.
12The benefits claims process clearly contemplates that Solutions may seek further medical information. To facilitate that exchange, the claim form includes an authorization for the third party to communicate directly with the claimants treating physician(s).
13The applicant did not sign the authorization when the claim form was first submitted. There was at least one discussion between her and Solutions and several with the employer about the desirability of signing the authorization. According to the respondents, this would allow direct communications between Solutions and her treatment providers.
14The applicant testified she decided not to sign the authorization because of the error in interpretation by the third party described above. I accept that this error confirmed her likely intention to not sign the authorization. Although it seems to have been of central importance to her view of the developing dispute between these parties, her decision was made in good faith and the parties were agreed that it was her right not to sign.
15As a consequence of the decision to not sign the authorization, the applicant advised Solutions and the employer that all requests for medical information were to be made through her. She would relay requests for information to her family doctor and then provide it to Solutions. This decision had significant consequences for what follows, both in terms of delays in the exchange of information and, at one critical juncture, a failure on the applicant’s part to understand what was being asked of her.
16Solutions initially denied the benefit claim on the basis that there was insufficient information to establish complete disability. In particular, Solutions noted the information provided lacked a treatment plan and a prognosis for return to work. Solutions concluded, based on the information it had, that the applicant should be able to return to work on a part-time basis and recommended to the employer that she be offered part time work and duties which would limit contact with other employees and residents as an accommodation. There were several back and forth communications between the parties about this proposal in February and March 2006.
17Dr. Young wrote directly to Solutions on March 20, 2006 and indicated that in his view the applicant could not return to work at that time. Dr. Young says in part that:
In light of her intense therapy sessions which are just starting, and high stress levels at work returning to work at this time would be detrimental to her health – that is it would cause a further decline in her health.
I am aware that your companies (sic) policy is to get employees back to work. In this case some treatment is needed before this can happen. This patient is highly motivated to return to work, and I am confident that with treatment we can restore Marilyn’s function to enable her to return to work relatively soon.
18On March 27, 2006, Solutions sent a written request to the applicant for further information. The letter is poorly drafted but includes an express request for further and quite specific information:
Please find attached a letter regarding work accommodation that we are requesting you take to your physician to discuss. Your physician has not addressed the issue of modified work. Should you continue to be unable to return to even modified duties, we require objective medical documentation, which may include clinical notes and records or a consult note from the psycho-therapist you have been treating with, including why you are unable to perform modified duties at this time. (emphasis added)
19Dr. Young responded to the letter from Solutions in a note dated April 17, 2006:
As I mentioned in my attached note dated march 20th 2006, Ms. McMahon-Ayerst is unable to work. Being unable to work includes modified work. She is currently receiving weekly therapy and should be off until June 2006.
20In response Solutions, citing an alleged lack of objective medical documentation to support total disability, maintained its recommendation that the applicant be accommodated with modified duties and part-time hours.
21Nothing was received from the treating psycho-therapist until 13 months later when a three page report was provided to Solutions. Upon receipt of the psycho-therapists report, Solutions recommended that the short term sickness claim be paid and it was.
22Based on the recommendations of Solutions, the employer requested that the applicant return to work on modified duties in a letter dated May 2, 2006. The letter stated that if she did not contact the employer regarding a return to work plan or provide “acceptable information as to why you are unable to begin your modified program we will have no alternative than to consider you on unauthorized leave.”
23The applicant responded by email and indicated that she would be following her doctor’s advice and would not be returning to work until June 5, 2006, the date her physician advised she was expected return to work. The applicant also stated in the email that in her view she was on an authorized medical leave and indicated that she had retained counsel to resolve the short term benefit claim dispute. To that end she further advised that her lawyer would be in contact with the employer and Solutions.
24Despite this exchange the applicant’s employment status remained unchanged at all material times. The respondents’ unchallenged evidence was that her status remained on medical leave until the point at which she claimed to have been was constructively dismissed, and beyond.
25There was very little contact between the parties over the ensuing months. The applicant did not return to work on June 5, but continued to provide brief updates which provided no further information other than extending her expected date of return. At some point in this period the applicant applied for long term disability insurance (LTD) from a third party carrier, Manulife. This claim was denied. The applicant appealed the decision but her appeals were ultimately unsuccessful.
26On October 2, 2006, counsel for the applicant wrote to Marvin Kalchman, Director of Human Resources, demanding payment of the outstanding short-term disability benefits. Apparently, counsel and Mr. Kalchman spoke about the dispute at some point subsequent to the October 2 letter and, in a letter dated November 29, 2006, Mr. Kalchman set out the employer’s position on a number of issues, including the following:
It is our opinion that Ms. McMahon-Ayerst or Dr. Young has not:
fully cooperated during the course of her disability to return to work by preventing Organizational Solutions from directly communicating with her physician
provided an appropriate plan of medical treatment or that Ms. McMahon-Ayerst has not followed it by virtue of the fact that ms. McMahon-Ayerst is till off work contrary to her doctor’s prognostications and to his statement of being capable of performing modified duties after “some treatment”.
given due consideration to performing modified duties and hours and made genuine effort to return to work.
provided our representative with substantive medical information to support total disability and to the contrary, the medical information supplied at the time during which she could have qualified for disability compensation and to date, indicates a partial disability that can be accommodated through modified duties and or hours of work which the company had offered.
27The letter goes on to state that while the employer understood that the applicant was following her doctors orders, the employer would require that the applicant attend a medical examination by a doctor of the employer’s choosing (IME) “to determine her ability and to remain off work (sic) and continue not to perform modified duties or modified hours or work”. Included with the letter was an authorization and release, which would allow the applicant’s treating physician to release medical information to Solutions which in turn would release it to the IME; and would authorize Solutions to release the report of the IME to the applicant’s treating physicians, and to an insurance carrier if required. The applicant was advised that failure to sign the authorization and otherwise cooperate with the IME “will be considered a refusal to cooperate and an act of insubordination and grounds for just cause termination.
28Mr. Kalchman and counsel for the applicant negotiated the terms under which this IME would take place over several weeks.
29Some level of agreement was reached but by letter dated January 11, 2007 counsel advised that the applicant would not sign the authorization described above and further indicated the applicant would request that IME report be released to her. It is not clear why given her stated position on signing the authorization, but the applicant attended the IME on January 20 2007 and she declined to sign the authorization required by the IME. In a letter to Mr. Kalchman from her counsel dated February 2, 2007, the applicant again advised that she would not sign the required authorization because of concern that her privacy rights might be breached.
30On March 1, 2007, Mr. Kalchman wrote to the applicant’s counsel and suggested the following to resolve the dispute about the authorization to release the report of the IME:
Ms. McMahon-Ayerst will attend a medical examination with Dr. Richards as previously agreed to. Dr. Richards will write a report assessing Ms. McMahon-Ayerst’s condition and will provide your client’s physician with an a advance copy of that report. Your client’s physician may then contact Dr. Richards to discuss any parts of the report that may be in dispute. Once your client’s physician has had an opportunity to discuss the report with Dr. Richards, or if two weeks from the date that the report was issued have elapsed and Dr. Richards has not heard from your client’s physician and or Dr. Richard’s does not modify the original report, Dr. Richards will then send a final/version copy of the report to Organizational Solutions. Your client will sign a Release of Information to this effect and forward to Dr. Richards a minimum of 48 regular business hours prior to attending the medical examination.
31The applicant does not appear to have responded to this proposal. The IME was never conducted. As indicated earlier, the report of the psycho-therapist was provided to Solutions in April 2007 and the short-term disability claim was paid.
32Ms. Button, National Benefits Manager for the respondent, testified that the employer received on average 60 to 80 short term claims in a year. Very few are denied. She also testified that on average 20% of claims are based on mental health issues. She stated that in 1988 there were 88 claims were received and all but two were allowed and the two that were denied were claims based on physical injuries.
Analysis
33In addition to its substantive defences, the corporate respondent stated that it could not be found liable for any violations of the Code committed by Solutions. Although it is not necessary to deal with this issue given the ultimate result below, I reject the proposition advanced by the respondent employer. In my view, Solutions was the agent of the respondent employer and in the same way that an employer can be found liable for the actions of its employees, the respondent employer is responsible for the actions or inactions of Solutions. The authorities relied upon by the employer have no application to these circumstances where an employer with a contractual and legal obligation to another, contracts the carrying out of that obligation to a third party. The third party in that case is not acting on its own account; rather it is the agent of the employer and bound by the actions of the third party. Section 46.3 of the Code provides that except in specific circumstances which do not apply here, an act or thing done by and agent “shall be deemed to be an act or thing done or omitted to be done by the corporation …”.
34The applicant alleges she was subject to differential treatment on the basis of disability in the manner in which her claim to short term benefits was handled. In her view the employer and/or Solutions had a problem with mental illness and for that reason became jointly engaged in what she characterized as an attempt to drive her out of the workplace. They hoped that she would just go away. The denial of the short term disability claim was part of this scheme or pattern of discrimination.
35I do not agree. There was a dispute between the parties about her entitlement to short-term benefits, that much is clear. It is also clear that both the employer and the applicant were at times frustrated by the service provided by Solutions. No doubt Solutions bears some responsibility for the delay in resolving the dispute. However, I am not persuaded that the dispute or the delay in resolving it was a consequence of the fact, as alleged by the applicant, that her illness or disability was psychological. There is no evidence that this is the case. The unchallenged evidence of the respondents was that they and Solutions have had experience with short term claims based on psychological or emotional illness or other situations where objective physical evidence of impairment is unavailable.
36The evidence is more consistent with the conclusion that it was the applicant’s refusal to allow direct communication between Dr. Young and Solutions which initially delayed the assessment of the claim, and most importantly, her failure to respond to the express request for information directly from the treating psycho-therapist in the March 27, 2006 letter. I note that when the psycho-therapist provided a report in April 2007, Solutions immediately recommended payment. I also note that no explanation was offered at the time for the failure to provide a report or consultation note from the treating psychotherapist. It was plain at the CRC that the applicant misunderstood the content of the March 27 letter and as a result the request for information from the psycho-therapist was never relayed to either of her treatment providers. While likely an oversight on her part, the failure to respond to the March 27 request had significant consequences.
37The applicant states that the opinion of her family physician ought to have been accepted and that requests for further information were inherently unreasonable and evidence of the discrimination she complains of. I do not agree. Without deciding what level of scrutiny of Solutions’ requests is appropriate, I find that the requests that were made in the March 27 letter were not unreasonable in all of the circumstances and accordingly not evidence of a pattern of discrimination based on a disability.
38The applicant also claims that the failure of the employer to commission an IME when it was clear there was a dispute about her entitlement to short-term disability benefits and/or ability to work part-time was a discriminatory act flowing from the employer’s inability to respond to a claim based upon a psychological illness. There is no evidence that this is the case. The respondents’ explanation was that, when the issue came to a head in early May 2006, the applicant was saying that she would be returning to work on June 5, 2006. Mr. Kalchman’s evidence, supported by contemporaneous emails between employees involved in the dispute, was that the employer did not think an IME could be concluded in the time before the applicant was expected to return to work. Given what the employer knew at the time, it was not unreasonable to conclude that there was little practical reason to go to the expense of an IME at that stage.
39The applicant also claims that it was a violation of the Code for the employer to continue to urge her to sign an authorization when it is her right to not do so. The applicant states that such behaviour amounts to harassment on the basis of disability.
40I do not agree. The respondents did not take issue with her assertion that she was not required to sign the initial authorization. However, the employer was also entitled to ask for medical information to support her claim to benefits and continued absence from work. The employer has an obligation to accommodate a person with a disability and can only do so if it has reliable information. Accordingly, employees will often be asked to provide further information. Contrary to the applicant’s belief that the requests she sign the initial authorization were part of the attempt to drive her out of the workplace, I am satisfied the requests made were a good faith attempt to assist in resolving the dispute. There is no reasonable basis to conclude that the suggestion that she sign an authorization was a course of vexatious conduct that the employer knew or reasonably ought to have known would have been unwelcome.
41As regards the dispute about the authorization required for the IME to proceed, I also have concluded that the request that she sign an authorization to release the report of the IME report is not harassment on the basis of disability. The applicant was still claiming a short term disability benefit at that point and was still off work. The employer was entitled to a copy of the IME report. I also find that Mr. Kalchman’s ultimate suggestion about how to allow that report to be produced and released in consultation with the applicant’s treating physician was eminently reasonable and seems to have been intended both to respond to her concerns as well get to the truth of her condition.
42The applicant also claims that as part of this pattern of discrimination on the basis of disability, the respondents interfered in her LTD claim and as a result it was denied. The applicant relied upon the fact that two other insurance companies accepted her disability claims. She also relied upon the fact that there was some communication between the employer and Manulife about the result of the LTD claim. The communication between Ms. Button and the representative of Manulife is limited and confined to status updates. Ms. Button contacted Manulife to enquire about a routine notification to the employer of a payout. These facts do not establish any attempt by the employer to interfere with the applicant’s LTD claim. As regards the submission that I should infer from the fact that, as two other insurers allowed disability claims, Manulife would also have done so but for interference from the employer, there is insufficient factual foundation respecting the other insurance policies and claims to support such an inference.
43For all of these reasons the Application is dismissed.
Dated at Toronto, this 21st day of May, 2009.
“Signed by”
David Muir
Vice-chair