GSB#2013-0967, 2013-1101

UNION#2013-0580-0015, 2013-0580-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Snider)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Alison Nielsen- Jones Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Ferina Murji Ministry of Government Services Legal Services Branch Counsel

HEARING

March 21, 2014

Decision

1This award deals with the Union’s motion for an order that the Employer be barred from sending the letter that accompanied its list of questions for the physician performing the IME. It is the Union’s position that the letter is factually incorrect in places and, more importantly, will prejudice the physician against the grievor thus making an independent assessment impossible. The Employer takes the position that it is entitled to provide the physician with a chronology of events in order to give him a complete history of the parties’ efforts.

The Facts

2The grievor, Charlotte Snider, has filed two grievances, one dated May 7, 2013, the other July 17, 2013. The first grievance alleges that the Employer has improperly denied her Long Term Disability Benefits (LTDB), improperly demanded she return to work against her physician’s advice and failed to implement the required accommodations to allow her to return to work. The second grievance alleges that the Employer has violated the collective agreement, the Ontario Human Rights Code, the Public Service Act, the OPS Employment Accommodation and Return to Work, the Attendance Management, Workplace Discrimination and Harassment Prevention policies and any other applicable policies, procedures, laws or acts.

3The grievor began work in 2011 as a Disability Determination Adjudicator (DDA) in the Disability Adjudicator Unit of the Ministry of Community and Social Services. In the summer of 2011 the grievor developed Carpal Tunnel Syndrome, and bilateral Wrist Tendonitis. In the fall of that year the grievor applied for and was granted benefits by the Workplace Safety and Insurance Board (WSIB). Between that date there was also a continuing and lengthy exchange of communication setting out the various reports and September 2013 there were numerous attempts to return the grievor to work without success. There were numerous attempts and appointments to resolve this issue. Essentially the Employer and the grievor and the Union disagree about the interpretation of the physicians, physiotherapists and consultants recommendations. In an effort to move forward the Employer requested an Independent Medical Examination (IME).

4The parties met on September 26, 2013 to either mediate a settlement or prepare for arbitration. Minutes of Settlement were executed which provided, in part, the following:

3. On the understanding that the IME is truly an independent assessment, the Parties agree that the questions for the IME doctor that are developed by CEHSW will be provided to Union counsel for discussion prior to being sent to the IME doctor.

4. As soon as practicable, following the provision of the package to the Service Provider, the Employer agrees to provide Union counsel with a copy of the package of documents that the Employer provided to the Service Provider. Upon receipt the Union shall provide the same to the grievor.

5In the course of preparing for the IME and consistent with the Minutes of Settlement the Employer forwarded to the Union a list of questions and documents it intended to rely on for the IME. The Employer inadvertently included a copy of the letter it intended to send the specialist. It is this letter that is the subject of this award.

6The Union asserts that the letter is factually incorrect in places and, in others, is a biased view of what transpired. It submits that the letter is intended to influence the physician’s findings to the detriment of the grievor. In these circumstances, that is a breach of the Minutes of Settlement in that there can be no “truly” independent examination. It takes the position this Board has the right to review the letter to determine whether it is inconsistent with the terms of the Minutes of Settlement. The Board has the right to review any action of any party that breaches the Minutes of Settlement.

7Ms. Murji, for the Employer, took the position that it was usual practice for an employer to write a letter to an IME physician setting out the history of the employment of an employee submitting to the assessment. The Settlement does not give the Union any expanded rights that would allow them to dictate what that letter should read. Even where the Parties agreed that the Employer would provide the Union with the questions and accompanying documents, the parties only agree that the Employer would discuss them with the Union. It did not give the Union input into their content. The Union is trying to obtain rights by this Board it did not obtain at bargaining.

REASONS FOR DECISION

8The Union contends that the letter prepared by the Employer for the IME physician is prejudicial and violates the parties’ agreement to arrange for a “truly independent” assessment. It argues that I should bar the Employer from sending that letter in its present form because it is incorrect and inaccurate.

9The Settlement required the Employer to provide the Union with the questions it wanted answered with respect to the grievor’s return to work prior to sending them on so there could be discussion on the content. The Employer also undertook to give the Union the documents it had sent to the IME specialist after it had been sent. There was no obligation to send the Union the letter the Employer intended to include in that package of documents. The fact that it was inadvertently sent to the Union does not give the Union rights to object beyond the grounds it has claimed. If the letter did offend the impartiality of the examination, it is open to the Union to have a Board of Arbitration review the facts. The Union has not abrogated its right to challenge the neutrality of an IME report.

10In this case, there are two grievances which claim the Employer has failed to accommodate the grievor. That is the essence of the grievor’s complaint. Her allegations are the result, for the most part, of conflicting interpretations of the medical reports generated throughout the process. It is hoped that the results of the IME will resolve those differences. On any event, the letter written by the Employer seems to contain comments of the very questions I will be asked to answer during the hearing on the merits. The parties have agreed that some of the more straightforward disputes, such as whether it should say “wrist” or “wrists” can be corrected but most of them will involve evidence and are not appropriate at this stage in the proceedings.

11It is in the parties best interest to ensure that this IME be conducted in such a manner that there can be no dispute about the results. While I am not prepared to tell the Employer what to say in its reporting letter, it has been put on notice that the Union will be scrutinizing the letter and the report for any indication of bias or prejudice. The Employer will no doubt want to avoid any future controversy and will endeavour to describe the past history without any suggestion of bias.

12For these reasons the Union’s motion is denied.