GSB#2014-1430

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Union)

Association

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE UNION

Christine Davies Sack Goldblatt Mitchell LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 12, 2015

Decision

1Article 32 of the collective agreement between the Crown in Right of Ontario (the "employer") and AMAPCEO (the "Association") establishes a Joint Benefits Committee ("the Committee"), with duties set out in Article 32.2.1 of the collective agreement. Those duties include making decisions about complaints brought by individuals involving their entitlement to benefits. Articles 32.2.2.2 and 32.5 of the collective agreement provide that, where the Committee is unable to resolve a complaint by consensus, decisions of a mutually agreed upon independent third party are final and binding.

2The issue before me is whether the claimant, referred to by the initials "C.F.", is entitled to long-term income protection ("LTIP") benefits. Details that might identify the claimant have been edited. There was no dispute that, pursuant to the collective agreement provisions cited above, I have the jurisdiction to hear and determine this complaint as it related to the "own occ" period. There was a dispute as to whether I had the jurisdiction to consider and determine the "any occ" period.

3Eligibility for benefits under the LTIP Plan ("LTIP" or the "Plan") requires the claimant to be "totally disabled", defined under the Plan as:

"Totally disabled" means, for the first 30 months of a Period of Disability, an employee is wholly and continuously disabled by illness or accidental bodily injury which prevents him from performing the essential duties of his normal occupation...After the first 30 months of total disability, "Totally Disabled" shall mean he is unable to perform the essential duties of any occupation for which he is reasonably fitted by education, training or experience.

4The medical file reviewed by the insurer, Great-West Life ("GWL") and by the Committee was provided. In addition, the claimant filed a written statement in support of her application for benefits, and the employer was content not to exercise any right of cross-examination. The matter proceeded on the basis of this written record, without prejudice to AMAPCEO's position that it may call viva voce evidence in other cases.

5I was referred to and have reviewed the following decisions: AMAPCEO and the Crown in Right of Ontario (MGS), GSB File #2013-1414, decision of Vice-Chair Mikus dated July 23, 2014; ONA v. Hotel-Dieu Grace Hospital (Beaudet Grievance), [2004] O.L.A.A. No. 458 (Hunter); Trenton Memorial Hospital v. ONA [2000] O.L.A.A. No. 506 (Thorne); Toronto (City) v. Canadian Union of Public Employees, Local 79 [2010] O.L.A.A. No. 389 (Nairn); Joseph Brant Memorial Hospital v. ONA, [2014] CarswellOnt 18223 (Bendel); and two decisions concerning appeals before the subcommittee of the OPSEU/Crown Joint Insurance Benefits Review Committee, regarding claim #66072, decision dated April 14, 2000, and claim #45825, decision dated April 10, 2000 (Briggs); and AMAPCEO v. The Crown in Right of Ontario (MCSS) and Ms. R.G., decision of Briggs dated October 27, 2010.

Summary position of the Association

6The Association relied on an initial investigation by the claimant's family physician in testing and referrals that led, some months later, to a diagnosis of fibromyalgia ("FM") and chronic fatigue ("CF"). That condition, argued the Association, was complicated by further deterioration, in that the claimant also suffered from Irritable Bowel Syndrome, recurrent lung infections, and other conditions. The Association noted that the family physician had closely followed the claimant's condition indicating throughout that she suffered from a significant level of impairment and was unable to engage in gainful employment. Further follow-up eliminated other possible medical issues and in December 2012 the family physician specifically noted that the claimant was unable to maintain many activities of daily living ("ADLs").

7The Association argued that there was no issue as to the claimant's credibility or motivation, as evidenced by a dramatic change in lifestyle and in her retaining an out-of-pocket comprehensive medical assessment and supported by physician's assessments. She was approved for other disability benefits, including CPP and the disability tax credit. Through 2012 and 2013 the claimant was assessed by a rheumatologist, an internist, and a sleep specialist. An IME conducted by a physiatrist failed to address the FM diagnosis, argued the Association, rendering it of limited value. It also was the only report to conclude that the claimant's subjective reporting was inconsistent with the medically reported findings, argued the Association. A psychiatric IME confirmed an adjustment disorder with depression, chronic, consistent, argued the Association, with the physical diagnoses. The Association took issue with certain reports from the claimant's manager, noted by the insurer when concluding the medical did not support severe and debilitating illness. The insurer improperly dismissed the rheumatologist's and other reports