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
Ontario Public Service Employees Union
(Hauth)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services) Employer
BEFORE Loretta Mikus Vice Chair
FOR THE Mary MacKinnon
GRIEVOR Bode & MacKinnon
Barristers & Solicitors
FOR THE Andrea Kuprejanov
EMPLOYER Staff Relations Officer
Ministry of the Solicitor General and Correctional Services
HEARING July 6, 2000. The grievor, Dean Hauth, is a Correctional Officer with the Ministry of the Solicitor General and Correctional Services. In 1999 he filed a grievance alleging that he had been denied short term benefits under article 41 of the collective agreement which reads as follows:
ARTICLE 41 - WORKPLACE SAFETY AND INSURANCE
41.1 Where an employee is absent by reason of an injury or an occupational disease for which a claim is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding thirty (30) days. If an award is not made, any payments made under the foregoing provisions in excess of that to which he or she is entitled under Article 44.1 and 44.6 (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 occupational disease for which an award is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding three (3) consecutive 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 occupational disease shall not be charged against his 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 applies for longer than the period set out in Article 41.2 and the employee has accumulated credits, his or her regular salary may be paid and the difference between the regular salary paid after the period set out in Article 41.2 and the compensation awarded shall be converted to its equivalent time and deducted from his or her accumulated credits.
41.4 Where an employee receives an award under the Workplace Safety and Insurance Act, and the award applies for longer than the period set out in Article 41.2 (i.e. three (3) months), the Employer will continue subsidies for Basic Life, Long Term Income Protection, Supplementary Health and Hospital and the Dental Plans for the period during which the employee is receiving the award.
41.5 Where an employee is absent by reason of an injury or an occupational disease for which an award is made under the Workplace Safety and Insurance Act, the employee shall not be entitled to a leave of absence with pay under Article 44 (Short Term Sickness Plan) as an option following the expiry of the Application of Article 1.2.
The parties provided me with the following agreed statement of facts:
Dean Hauth has been employed by the Ministry for 10 years and has a continuous service date of January 3rd, 1990. He works as a Correctional Officer at the Thunder Bay Correctional Centre.
Mr. Hauth was originally injured in 1991 while working at the Thunder Bay Youth Centre, when he twisted his back while removing a Young Offender from a dormitory to the segregation area. The injury was re-aggravated a short time later, on January 20, 1992, while Mr. Hauth was in Ministry training at Bell Cairn. These injuries were approved by the WCB as separate claims.
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 his lower back, resulting in a lumbar disc injury. This injury was approved by the WCB as a separate claim.
Mr. Hauth has the following recognized WSIB Claims with this employer, with the following accident dates and injuries 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
April 29, 1995 Internal Abdomen Claim No. 19814464-U
August 19, 1997 Upper Back Claim No. 20730972-U
- Within the September 6, 1993 claim (19142105-U), Mr. Hauth has lost time as follows:
September 6, 1993 to November, 1993 49.5 days original injury
July 29, 1994 to August 8, 1994 5 days recurrence
1995: flare up (accepted for chiropractic but no lost time) recurrence
1996: flare up (accepted for chiropractic but no lost time) recurrence
June 24, 1997 to August 15, 1997 6.45 days recurrence
December 9, 1997 to January 29, 1998 11.25 days recurrence
March 21, 1999 to October 25, 1999 72 days recurrence
Mr. Hauth suffered a recurrence in 1994 and was off work from July 29th, 1994 to August 8th, 1994. This recurrence was recognized by the WCB under claim 19142105.
In 1995, Mr. Hauth had a flare-up in his back condition as a result of prolonged sitting and had chiropractic treatment. He did not lose any time off work in 1995. This re-injury was recognized by the WCB under claim 1914105. Health care benefits were approved by the WCB.
Mr. Hauth had a further flare-up in 1996 and required chiropractic treatment at that time as well. Health care benefits were approved by the WCB under claim 19142105.
Mr. Hauth suffered a recurrence of his lower back injury in 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.
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 in effect for a 4 week period. This lost time was allowed as a recurrence by the Worker’s Compensation Board under claim 19142105.
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.
In late 1998 Mr. Hauth was granted a Non Economic Loss benefits by the WSIB under claim 19142105 in recognition that his back condition is a permanent impairment.
The 1998 lost time totaled 67.25 days including the January 1998 period.
In February 1999, the grievor slipped on ice at work, re-aggravating his back. This occurred on February 24th, 1999. Mr. Hauth’s back pain 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 31st, 1999 and from April 1st, 1999 to May 1st, 1999, when he lost 14 - 12 hour shifts. These shifts were recognized by the Workplace Safety and Insurance Board as recurrences under claim 19142105.
Article 41.2 of the Collective Agreement (and its identical precursors) have been in place since 1977.
On June 17, 1999, the grievor was advised by letter from John Mackenzie, Deputy Superintendent, that his 65 day period of full pay under claim 19142105 had expired in May 1998 and that he would be removed from pay on March 24, 1999.
Mr. Hauth’s banked credits were used to supplement his WSIB claim monies, and he remained on payroll until June 27, 1999. He then went on WSIB pay direct and was paid 85% of his 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. Mackinnon, counsel for the Union, took the position that the “award” referred to in article 41.2 should be interpreted to mean any claim under the WSIA. She asserted that the WSIB does not differentiate between a new claim and a recurrence in considering whether to grant benefits and that the collective agreement does not contain any language that would suggest different considerations ought to apply when granting benefits under its provisions. Further , the WSIB recognizes that a recurrence of an old claim can be the result of a new injury. It was stated that article 41.1 shows the parties intention that an award from the WSIB would be initiated by a claim for benefits. It is that claim that is the precipitating event from which the benefits under 41.2 arise.
The Union also suggested that there were policy reasons to allow this grievance. The Board should take judicial notice of the fact that people with back injuries are at more risk than others for further injury. In cases such as the instant grievance, the benefit of the doubt should go to the injured worker who stands to lose the most. Otherwise there is less incentive to return to work quickly if there is a risk that intermittent absences will jeopardize one’s credits under article 41.2. Additionally, the Employer’s interpretation will result in a discriminatory application of the collective agreement. Employees suffering a workplace injury will be penalized for intermittent absences while an employee with an illness or injury unrelated to the workplace would continue to receive benefits.
In the alternative, the Union took the position that the Employer is estopped from relying on its interpretation of article 41.2 because of the delay in notifying the grievor that his benefits had expired. The Employer claims that his benefits expired in March of 1998 but did not advise him of that until June of 1999. In the meantime the grievor took no steps to utilize other benefits under the collective agreement that would have avoided any overpayment. The Employer is estopped from now claiming that overpayment if this Board should accept its interpretation.
In the final alternative, if this Board should accept the Employer’s interpretation of article 41.2, the Union argued that the grievor’s last accident in 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 Ministry, raised two preliminary objections to my jurisdiction to hear this grievance. At issue in the instant grievance is the interpretation of article 41.2, which was the subject of a previous arbitration before Professor Roberts (GSB # 421/82). In that case the Board determined that a recurrence of an existing condition did not trigger a new 65 day entitlement under article 53.02, which was, for all material 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 Union is estopped from challenging that interpretation at this late stage. The Manual of Administration for management and excluded employees dated March 10, 1986 states as follows:
Period of Pay Maintenance if WCB makes an Award
When an employee is absent because of an injury or industrial disease for which an award is made under the Workers’ Compensation Act, regular salary shall continue to be paid for:
a period not exceeding three consecutive months or
a total of 65 working days where such absences are intermittent
following the date of the first absence because of the injury or disease. [ref. PSA Reg 67(2)]
Subsequent Absence Due to Recurrence of WCB Injury:
If an employee was not absent for three consecutive months or 65 working days at full salary under an original WCB award, and is again absent because of the same illness or injury, full salary shall be maintained up to and including the 65th day of absence under this award. The employee will then receive the award directly from WCB unless it is supplemented with accumulated credits, in which case the employee remains on payroll.
In addition, the CORPAY Pay and Benefits Procedures Manual from the Ministry of Correctional Services dated September 1992 states:
When approved for Workers’Compensation award, an employee’s salary is maintained at 100% for the balance of three consecutive months, or 65 intermittent working days for each new claim. Insured benefits are maintained as if the employee were at work.
In the instant case, there is no dispute that the grievor’s WSIB benefits were awarded under the original claim of 1993, that is claim # 19142105. These subsequent claims were, at all times, considered recurrences of that original claim according to the WSIB”s own definition. In its WSIB Claims Guide for OPS Managers, it was stated that a recurrence was a return of symptoms similar to those experienced at the time of the original disease, injury or impairment. It was further stated that a recurrence is “evident when there is obvious medical compatibility between the original diagnosis and the recurring medical problem or an appropriate combination of medical compatibility 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 Union is estopped from seeking an interpretation inconsistent with the Robert’s Board. The Employer has relied on that award, has developed and implemented policies consistent with that award, without objection, and will suffer extreme detriment if this Board should come to a different interpretation after all this time.
In reply, the Union asserted that the Robert’s Board applied the wrong test in considering what constituted a recurrence. Their test was more stringent than the WSIB’s. It required a healing of the first injury and an extraordinary event causing a new injury. The Union submitted that this Board can refuse to follow the Robert’s Board if it is satisfied that it was patently wrong. It relied on several decisions of the Ontario Workplace Safety and Insurance Appeals Board as the appropriate test for this Board to apply. In those cases new accidents were treated as recurrences if they were insignificant and if the criteria of medical compatibility and continuity were satisfied. It was said that, after considering the OWSIAT decisions, this Board should have no hesitation in coming to a different conclusion than the Roberts Board.
REASONS FOR DECISION
The grievor has suffered several workplace accidents which have resulted in distinct awards from the WCB or WSIB. One of the accidents has resulted in recurring problems with his back, shoulder and neck. There was no dispute that each separate claim with the WSIB gives rise 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 originating injury or whether each recurrence of an injury constitutes a new claim which would trigger rights under article 41.2. The Employer relies on the 1982 decision of the Roberts Board as the definitive answer to this question: the Union 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 which had been the subject of a previous Workmen’s Compensation Award sufficed to “trigger” under article 53.2 a second 65-day period of absence at full pay.
The Robert’s Board, unlike this Board, had no evidence of any past practice with respect to the application 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 applied in an open and notorious manner in many similar circumstances to those of the present case”. The grievor 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 recurring 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 totality of her absences from work the employer treated her as if her absences related to that original injury in 1976. Only the first 65 working days were paid at full salary under article 53.2.
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 relating to intermittent absences, since each absence might be defined as relating 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 of this case. The reason is that it is possible that in the performance of his or her ordinary assigned duties in the workplace an employee with an pre-existing injury that has not healed might aggravate that injury and hence require intermittent periods of absence. Certainly it would be correct to conclude that where a pre-existing injury is aggravated in this sense, the resultant absence does not trigger the running of a new time period under Article 53.2.
While the aggravation of a pre-existing injury would not trigger the running of another 65 day period 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 conditions would have to be fulfilled(sic). First, the original injury must have “healed” in the sense of there being no reasonable expectation of further aggravation or repetition of the injury in the performance by the employee of his or her usual course of assigned duties. 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 duties of the employee. Absent satisfaction of these two conditions, it seems to us that only an aggravation of the pre-existing injury would have occurred.
The Union has argued that the Roberts’ Board was incorrect when it found that a pre-existing injury would only trigger a new claim under Article 53.2 if the it had healed to the point that there was no reasonable expectation of further aggravation or if the re-injury was the extraordinary result of something outside of the usual performance of the employee’s duties. That argument, however, is inconsistent with the plain words of the collective agreement. Article 41.2 states that an employee is entitled 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 65 days. Otherwise there would have been no need to differentiate between one continuous absence and intermittent absences since each one would have been covered separately by article 41.2.
Additionally, the parties were careful to tie the intermittent absences to the “first absence”. That reference to the first absence must have been intended to mean the first absence of the originating claim and reinforces my opinion that the parties did not intend to characterize each individual absence as a new or fresh claim for benefits under article 41.2.
In my view, the Robert’s Board came to the right conclusion. For those reasons, the grievance is dismissed.
Dated at Toronto, this 26th day of September, 2000.