GSB#2012-4593

UNION#2013-0546-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sessions)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

David R. Williamson

Vice-Chair

FOR THE UNION

Rebecca Liu Dewart Gleason LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

Heather McIvor Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 5, June 11, September 22 & 23, December 17 & 19, 2014; July 28, August 5 & 20, September 22, 2015.

Decision

1On September 6, 2012, Ms. Helen Sessions received written notification from the Ministry of Health and Long-Term Care that her System Liaison Officer/Registry position at the 11OAD level with was being declared surplus effective September 21, 2012, as a result of Ministry business decisions. She advised the Ministry she wished to be redeployed. By so doing she was eligible for the identification of a displacement opportunity if she had not been assigned to a position within five months of the effective date of her notice of lay-off. On September 21, 2012, Ms. Sessions was provided with formal notice of lay-off effective March 23, 2013.

2On February 19, 2013, Ms. Sessions was notified of a potential displacement opportunity as a Claims Assessor at the 09OAD level. Ms. Sessions advised the Ministry that she was accepting this position under duress and that she would be filing a grievance. This grievance dated February 26, 2012, alleges a violation by the employer of Art. 20.4 of the collective agreement by failing to allow her to displace a less senior employee in the same classification and in a position for which she is qualified and has the skills to perform the duties and core components of the job. The grievance was heard at stage two of the grievance procedure on March 1, 2013, and denied on March 12, 2013. Ms. Session’s grievance subsequently came to be heard at arbitration on March 5, 2014, under the provisions of Article 22.16 of the collective agreement.

3Not known to Ms. Sessions until shortly before her grievance came to be heard at arbitration was that the Redeployment Services Office had in early February of 2013 deemed Ms. Sessions qualified to displace Ms. Nicole Cirella and bump into an Assessment Officer 11OAD position in Mississauga and had, when management in Claims Adjustment were advised of this, received a written response dated February 11, 2013, which disputed the view that Ms. Sessions was qualified to carry out the duties of the Assessment Officer position.

4Article 20.4 states in relevant part as follows:

20.4 DISPLACEMENT

20.4.1.1 An employee who has completed his or her probationary period, who has received notice of layoff pursuant to Article 20.2 (Notice and Pay in Lieu), and who has not been assigned, within a period of five (5) months after the receipt of the notice of lay-off, in accordance with the criteria of Article 20.3 (Redeployment) to another position shall have the right to displace an employee who shall be identified by the Employer in the following manner as set out in Articles 20.4.1.2 to 20.4.1.10.

20.4.1.2 The Employer will identify the employee with the least seniority in the same classification and the same ministry as the employee’s surplus position. If such employee has less seniority than the surplus employee, he or she shall be displaced by the surplus employee provided that:

(a) such employee’s headquarters is located within a forty (40) kilometer radius of the headquarters of the surplus employee; and

(b) the surplus employee is qualified to perform the work of the identified employee.

5The parties are in agreement that the sole issue between them is whether Ms. Sessions is qualified to displace into the Assessment Officer position under the terms of Art. 20.4.1.2(b).

6Ms. Helen Sessions commenced work with the Ontario Public Service in September 1999 as a Claims Assessor at the 09OAD level with the Ministry of Health and Long-Term Care. She worked as a Claims Assessor until November 2005 when she competed for, and was the successful candidate for, a System Liaison Officer/Registry position at the 11OAD level in the Claims Department of the Ministry of Health and Long-Term Care. Ms. Sessions worked in this position until it was deemed surplus in September 2012. During the time she was a Claims Assessor, Ms. Sessions took a number of computer courses at the Sheridan Institute of Technology from where she graduated with Honours in 2005 with a Computer Systems Certificate, having earned a 4.0 GPA and been named Sheridan Scholar.

7Before starting work with the OPS Ms. Sessions had worked as an Optical Laboratory Technician with an Optician for four years until January 1, 1994. She then attended Sheridan Institute of Technology and took courses on medical terminology, medical office procedures, anatomy and physiology, and OHIP computerized billing. Following this she worked for almost four years to mid-1999 as a Medical Administrative Assistant for a Dermatologist in private practice.

8Ms. Sessions worked as a Claims Assessor in the Mississauga Office from September 1999 to November 2005, a period of just over six years. During this time Ms. Sessions was the Acting Team Leader at the 11OAD Level for the full months of July 2002 and December 2002. It is the evidence of Ms. Sessions that during these months, in addition to performing various administrative functions associated with being Acting Team Leader, she also researched issues and drafted responses to complex enquiries. Ms. Sessions has also, without any training, carried out the duties of a Claims Assessor since returning to this position upon bumping in early 2013.

9In broad terms the duties of a Claims Assessor are to examine claims for health care benefits and ensure that only eligible clients and valid claims receive payment. The claims that are dealt with by the Claims Assessors can vary from quite straightforward to fairly complex depending on the skill and experience of the Claims Assessor. The evidence discloses that Claims Assessors handle a large number of claims on a weekly basis and that surgical claims that are complex are passed on to one of a small number of Assessment Officers for their examination and determination. The work of an Assessment Officer, by way of contrast, consists of considering and making payment decisions on a small volume of complex claims passed on by Claims Assessors and which require much more careful consideration and research with oftentimes the input of a medical advisor.

10Testimony was given by Ms. Ann Ramsay who worked at the Ministry of Health from 1972 until her retirement in 2011. She worked as a Claims Assessor from 1979 to 1998 and as an Assessment Officer from 1998 to 2011. It is her evidence that when she moved into the Assessment Officer position there was a two and a half week overlap with the position incumbent during which time she was oriented to procedures and to how to go about performing the position duties, but that she wouldn’t call it training. She testified that a background as a Claims Assessor is required in order to be able to perform the duties of the Assessment Officer position and that, in particular, what is obtained from being a Claims Assessor that is needed for the Assessment Officer position is a good knowledge of the schedule of benefits, the medical rules, the reject codes, and the error reports. It is her further testimony, however, that not everyone who has a Claims Assessor background is able to adjudicate complex claims as an Assessment Officer.

11It is the testimony of Ms. Ramsay that for much of the time she was an Assessment Officer she worked alone and her workload was extremely heavy. Her evidence is that she sought assistance from her manager, Susan White, with the result that Ms. Sessions and one other Claims Assessor came to assist her with her work when she was overwhelmed. She said that Ms. Sessions helped her out occasionally on a continuing basis up until her retirement in 2011 with both administrative and computer work as well as adjudicating complex claims for her review and signature, and that she was super happy with the quality and attention to detail of the work done by Ms. Sessions. Ms. Ramsay testified that she had very few or hardly any complex claims coming through from Helen Sessions in her work as a Claims Assessor. It is the evidence of Ms. Ramsay that she considers Helen Sessions to be very good at what she does and more than capable of doing the work of an Assessment Officer as she has the knowledge to deal with complex claims and knows where to find the rules and how to apply the rules.

12Evidence was given by Ms. Joan Warner-Griffin who worked with the Ministry of Health from 1973 to 2008 and retired in 2013 following forty years of service with the OPS. It is her testimony that she was the Acting Manager in the Claims Department in the 2006-2008 time period and that Ann Ramsay reported to her. It is her evidence that when Ms. Ramsay’s work load became too heavy Ms. Sessions assisted her, upon Ms. Ramsay’s request, and learned what it was that Ms. Ramsay did and how to go about adjudicating some of the more difficult claims. It is Ms. Warner Griffin’s evidence that she has not herself done claims work and that she has no direct knowledge as to how Ms. Session’s skills may have changed since that time. Ms. Joan Warner-Griffin testified that she was told by Ms. Ramsay that Ms. Sessions was doing well and testified further that the exposure Ms. Sessions was receiving to the work of an Assessment Officer was more than people moving into the position of Assessment Officer would normally receive prior to assuming the full duties of the position, and made reference to the two and a half week overlap period Ms. Ramsay had with the previous incumbent of the position in going from a Claims Assessor to an Assessment Officer. It is the evidence of Ms. Warner-Griffin that she had no concerns about Ms. Session’s ability to do this work and that Ms. Sessions possessed great computer skills.

13Evidence was given by Ms. Jascintha (Jas) Moncrieff who has worked for the Ministry of Health for the past 29 years. She was appointed an Assessment Officer by way of job competition five years ago, and prior to this had been a Claims Assessor for ten years in which capacity she had received the opportunity to work with Ann Ramsay on a rotational basis over a period of five or six months. When working in that position with Ms. Ramsay she testified her duties were to assess claims considered complex and forwarded on by a Claims Assessor, read reports, and assess prior approval requests submitted by surgeons. As a Claims Assessor, said Ms. Moncrieff, her ability to handle more complex claims developed over the years with time on the job. As such, said Ms. Moncrieff, what constitutes a complex claim depends on the experience and developed skill of the Claims Assessor, with some Claims Assessors able to handle relatively complex claims.

14Ms. Moncrieff testified as to the duties of an Assessment Officer, namely to assess any claims forwarded on as complex by a Claims Assessor, answer questions from Claims Assessors, liaise with Medical Advisors, send any super-complex claims onto a Medical Advisor, and assess pre-surgery approval requests from surgeons. Compared with the large volume of claims handled by a Claims Assessor the number of claims dealt with by an Assessment Officer is very small and of these about one-third are passed on to a Medical Advisor as they are super-complex. The skills needed for this position testified Ms. Moncrieff are knowledge of the schedule of benefits and medical rules, the ability to do research on claims issues, and to read an operating room report. It is the evidence of Ms. Moncrieff that these skills are acquired over time from working as a Claims Assessor, with the skill needed to interact with Medical Advisors being one that is learnt in doing the job. She said the overall set of skills that she possesses for the job came from the years that she spent as a Claims Assessor.

15Ms. Moncrieff testified that in May 2012, Ms. Sessions spent some time with her in a job shadow arrangement planned by Ms. Anderson-Crawford that was scheduled to be for a two week period in the mornings. Ms. Moncrieff said she covered the prior approval process, coding, and where things were kept, but did not cover other substantive elements of the job as Ms. Sessions already knew that. It is Ms. Moncrieff’s evidence that Ms. Sessions clearly remembered what she had been shown earlier by Ann Ramsay and that upon finding nothing else had really changed, Ms. Sessions elected to complete the job shadowing early after four half days.

16It is the evidence of Ms. Moncrieff that Ms. Sessions started to help her when Ann Ramsay retired in 2011, and that she would sometimes look over the work done by Ms. Sessions, but that most of the time she would just sign off on it as she was extremely confident in the quality of Ms. Sessions work. Ms. Moncrieff testified that she never had any issues with any of Ms. Sessions work, and that none of her work came back as being in error, and that she has been very happy with the work of Ms. Sessions. Ms. Moncrieff testified that since Ms. Sessions has been back working as a Claims Assessor the only complex claims that have come through from her are the ones that specifically are required to come to her. It is the evidence of Ms. Moncrieff that Ms. Sessions has the skills and knowledge to be able to work in the position of Assessment Officer.

17Evidence was given by Ms. Helen Sessions of her educational background and work experience, the particulars of which were set out earlier. The Employee Portfolio that she completed in January 2013 after her position was declared surplus was entered into evidence. Together with other information this set out the key responsibilities of her Claims Assessor position from 1999-2005, her System Liaison Officer/Registry position that she held from 2005-2013, and as a Medical Administrative Assistant with a Dermatologist from 1996-1999. In her Employee Portfolio Ms. Sessions particularly emphasized that when a Claims Assessor she was the lead on the creation of a Vision Care Manual as to how to assess and process vision care authorizations, and of twice being an Acting Team Leader at the 11 OAD level in the Claims Department for the full months of July and December 2002. She testified that after being a Claims Assessor for approximately three years she was twice selected for this position by Susan Andrews despite being the youngest and most junior Claims Assessor. She said the department was particularly busy during the time she was Acting Team Leader, as it followed a return to work from a two month work dispute, and said she was responsible for handling many complex enquiries being passed on to her by staff. Ms. Sessions testified that an extensive knowledge of claims is needed to do this work. It is the evidence of Ms. Sessions that Assessment Officers do a lot of the same work as Claims Assessors and that there is not a single program that is used by Assessment Officers that is not used by Claims Assessors, although the claims work done by Assessment Officers is generally addressing more complex claims and surgical claims both of which require more in depth consideration.

18It is the testimony of Ms. Sessions also that during her time as an Acting Team Leader she provided responses to Claims Assessors, Managers, and Physicians, and was asked her opinion on some issues by Assessment Officers, and in one instance was asked by Ann Ramsay to look at a complex claim as a second pair of eyes with the result that her interpretation was later deemed to be correct by a Medical Advisor.

19Additionally, Ms. Sessions stated in her Employee Portfolio that she had “Completed training in the Assessment Officer position (Office Administration 11, 11OAD) May 2012 to the extent that I can perform all the required duties and responsibilities without additional training and without supervision”. The Employer disagrees with this statement and contends that the job shadow experience Ms. Sessions had was not training and that Ms. Sessions does not have the knowledge and skills needed to perform the duties and responsibilities of the Assessment Officer position.

20In 2005 Ms. Sessions moved into the System Liaison Officer/Registry position upon her being the successful candidate in a job competition. In this position she testified that she worked with physicians to register them as either individuals or groups with the Ministry of Health, and educated doctors on the OHIP claims procedures and codes, with this latter being about forty per cent of her work. As such, said Ms. Sessions, she has kept current with registration models and codes and that it was vital for her to be up to date on all fronts with claims related issues.

21It is the further evidence of Ms. Sessions that over a number of years from 2002 she has had direct experience in the Assessment Officer position and that she has worked with complex claims. Her evidence in this regard corroborates the evidence given earlier by Ann Ramsay, by Joan Warner-Griffin, and by Jas Moncrieff. Ms. Sessions testified that from working with Ann Ramsay she learned that a good part of the work of an Assessment Officer was much the same as that of a Claims Assessor, but that Ann dealt with lower volumes of claims, dealt with generally more complex claims, had the time to research and study a claim, and had the Medical Advisors at her disposal for additional help. It is the evidence of Ms. Sessions that after working with Ann Ramsay she was able to handle complex claims in that she had the medical terminology, the knowledge of anatomy, and that there was nothing she couldn’t grasp and adjudicate from a report. Ms. Sessions testified that after Ann Ramsay retired she continued to do a similar kind of work helping out with Jas Moncrieff. It is the evidence of Ms. Sessions that she considered she was fully capable of performing the duties of the Assessment Officer position after working with Ms. Moncrieff.

22In May 2012 Ms. Sessions attended a job shadow arrangement with Ms. Moncrieff that had been arranged by Ms. Anderson-Crawford. It was something that had been requested by Ms. Sessions on account that she had heard that her existing position might be in jeopardy in the future and felt that a refresher would be useful. Ms. Sessions testified that this job shadow was scheduled to be for two weeks of mornings but lasted only four mornings on account that by then they had covered the orientation material already and had by that time started to do real work on assessing claims. It is the evidence of Ms. Sessions that after four mornings she was comfortable in the knowledge that the processes and workflow of the Claims Assessor position had not really changed from the time she was working in the area before, and that she had the medical knowledge and skills required to assess claims from her previous experience. In short, she said this was a refresher for her. She had done the work of a Claims Assessor, been a Team Leader, had worked helping out over the years with various Claims Assessors, had the medical terminology, had kept up to date with the registry procedures, the schedule of benefits and the codes, had knowledge of the medical rules, and had been through a refresher course on the job flow aspects of the Assessment Officer position. As such, Ms. Sessions said she wished to end the job shadow process early after four mornings.

23Evidence was given by Ms. Andrea Anderson-Crawford who is a Program Manager in the Claims branch of the Hamilton office into which the Mississauga office was amalgamated in late 2014. She has been a program manager for thirteen years and her job function includes the direction of the claims staff and the team leader. Ms. Anderson-Crawford testified to the nature of the duties performed by Ms. Sessions in her role as a Systems Liaison Officer/Registry Officer (SLO/Registry). She said it was a technical position working with machine readable input and output and dealing with monthly claims where there are data errors or corrupt files for resolution so that physicians claims can be reviewed and paid. The position also works with new physicians as to how to bill and deal with the technical aspects of submitting claims and billing for services. For the Registry Officer part of the job, said Ms. Anderson-Crawford, the duties involve a lot of database work including such things as taking physicians through the various steps of registration including paperwork, banking, updating addresses, and adding new doctors. It is the testimony of Ms. Anderson-Crawford that there is nothing in this SLO/Registry position that has anything to do with surgical claims adjudication, that the SLO positions were phased out with the elimination of data diskettes and the submission of claims electronically using the Medical Claims Electronic Data Transfer system over the internet, and that the research and investigation skills used as an SLO are not necessarily transferable to the Assessment Officer position as a different knowledge set is involved in the two positions. Ms. Anderson-Crawford testified that the intent of the job shadowing was to give Ms. Sessions an idea of what kind of work was done by AO’s and was not intended to train them in the job duties of an AO.

24Ms. Anderson-Crawford testified on matters pertaining to the duties of Claims Assessors and Assessment Officers. All claims go first to claims Assessors (CA’s) for payment, escalation, or rejection, and are in the quantity of about 40,000 per year to each CA. These deal with payment claims for office visits, hospital visits, diagnostic issues, primary care, surgical claims, and written enquiries from doctors requesting explanation for underpayment. Claims Assessors need to have knowledge of types of primary care models, service codes, and the claims assessment manual that addresses the matter of how to apply the codes. All claims are processed and paid by the CA’s. Claims Assessors handle all the routine claims and a complex claim that would be handled by a CA would include, testified Ms. Anderson-Crawford, multiple tests overlap, and multiple doctors billing the same codes and the determination of which doctor did what procedure and who gets payment for the code. The ongoing changes in medical techniques become reflected in changes in the schedule of benefits. All complex surgical claims are passed on to the Assessment Officers for adjudication, together with other claims that the CA considers are too complex for them to handle. What is considered to be too complex varies by Claims Assessor and depends on the skill and experience of the CA. Claims Assessors, she testified, handle a whole variety of many claims up to and including simple surgical procedures, and some Claims Assessors have a vast general knowledge.

25In her evidence Ms. Anderson-Crawford addressed the main differences between the work done by Claims Assessors (CA’s) at level OAD9, and by Assessment Officers (AO’s) at level OAD11. Whereas the CA is a generalist and deals with a large number of straightforward claims each week as outlined above, the AO is a specialist dealing with a small number of complex claims and focused on surgical claims and especially complex surgical claims. Their day, testified Ms. Anderson-Crawford, is mostly spent on reviewing complex surgery claims, researching the nature of complex surgeries, and investigating past decisions on recent like surgeries. They have access to research materials and the input of Medical Advisors. Medical Advisors have in many cases prepared ‘Cheat Sheets’ addressing medical issues and procedures in their specialties. These were produced at the request of AO’s and Ms. Anderson-Crawford testified that AO’s are the primary users of these cheat sheets. Claims that are considered to be too complex can be passed on in their entirety to a Medical Advisor. There is a lot of difference in the amount of time spent on a file, and the resources available, between a CA and an AO, with an AO perhaps spending up to a week, on and off, in coming to a payment decision. The knowledge base of an Assessment Officer is specialized and more complex and has been built up over the years from past experiences.

26It is the evidence of Ms. Anderson-Crawford that it was on February 8, 2013 that she became aware through an e-mail from Mary Jane Paiero, Human Resources Advisor in MGS, that the Redeployment Services Office had deemed Ms. Sessions to be qualified to displace into a position as an Assessment Officer at the 11OAD level. She testified that she realized at that time that if this displacement occurred she would have to train Ms. Sessions by providing on the job training with other Assessment Officers as she considered her not to be qualified to do the work of an Assessment Officer. In particular, she said she disagreed with the statement made by Ms. Sessions on her Employee Portfolio for use in Displacement that she had completed the required training and could perform the duties of an Assessment Officer without additional training as it was a job shadow only to expose Ms. Sessions to the scope of the Assessment Officer position.

27Ms. Anderson-Crawford testified that she had never before received a redeployment match from the Redeployment Services Office and that she then worked with Ms. O’Blenes to have the match reviewed, and which then resulted in the Redeployment Services Office advising Ms. Sessions that she would be displacing a Claims Assessor at the 09OAD level. It is the evidence of Ms. Anderson-Crawford that she has been happy with Ms. Sessions as an employee, and that she is diligent, but that she does not consider her to be qualified to do the work of an Assessment Officer. It is the further evidence of Ms. Anderson-Crawford that she did not challenge Ms. Sessions bumping into the Claims Assessor position for the reason she considered that Ms. Sessions could do the work at this level, and testified that upon her return to work in this position she has had no issues with her work.

28It is the testimony of Ms. Anderson-Crawford in cross-examination that she has never been herself either an Assessment Officer or a Systems Liaison Officer, and that since October 2014 she does not supervise the Assessment Officers. It is her evidence that the training for a new Assessment Officer is peer training and support for as long as is needed, that there is no formal course of training, that there are no manuals, and that it is a process of learning on the job day by day. She said the existing AO’s are in their position as a result of having won the position by way of a job competition.

29It is the evidence of Ms. Anderson-Crawford that she does not dispute the testimony of Ann Ramsay, Joan Warner Griffin, Jas Monteith, and Helen Sessions, that Ms. Sessions worked with these Assessment Officers at various times over the years assisting with their adjudication work, but that she has no direct knowledge of any of this on account of it either being before her time in the job role, because Assessment Officers are not required to keep her informed of their work on each file, or because she was away from work on one of her three maternity leaves since 2001. Likewise Ms. Anderson-Crawford has no recollection of Ms. Sessions being an Acting Team Leader for two full months during the time she previously worked as a Claims Assessor.

30It is the further evidence of Ms. Anderson-Crawford in cross-examination that before the amalgamation of the Mississauga office with the Hamilton office there were two Assessment Officers in Mississauga both of whom had previously been Claims Assessors, and that when they started out as AO’s they had no Assessment Officer experience and no experience adjudicating either complex surgical claims or working with a medical advisor.

31Evidence was given by Mr. Richard Chong who, since July 20, 2015, has been the Program Manager of the Claims Services Branch in Toronto and who was the Acting Manager for nine months before this. In this position he supervises a team of 25 CA’s, 3 AO’s, and one Team Lead. He was previously an AO for three years and a CA for six years before that. He described the duties of a Claims Assessor as assessing and processing on a volume basis routine medical claims of 3500 to 4000 claims per person each year. He said these are routine and less complex claims that do not require investigation and that require a knowledge of the Fee Codes to be able to handle. Surgeries that are more complex are forwarded on to the Assessment Officers. His evidence is that since he started in 2005 there have been constant changes to codes, some codes being delisted, and some new payment models introduced. In 2011 Mr. Chong was the successful candidate in a job competition for an Assessment Officer position. He described the duties of an Assessment Officer as adjudicating more complex surgical claims and to respond to more complex enquiries from hospitals and billing agencies. It is his testimony that the work of an Assessment Officer requires investigating complex surgical claims, reading operative reports, and comparing these with the fee codes billed. He said that it takes time to read the reports of these complex procedures such as craniotomies involving incisions into the skull and tumor removals, or radical neck dissections involving the work of more than one surgeon and assessing the work of each. Work of this kind is done by AO’s and not by CA’s. His evidence is that some knowledge of medical terminology is needed for the AO position, but is not required to do the work of the CA position.

32Mr. Chong described the process he went through upon becoming an Assessment Officer. It is his evidence that he was assigned to work in conjunction with an experienced Assessment Officer who provided several claims adjudications and asked him to become familiar and obtain as much information about the surgical procedures as possible. For the first several weeks he then met for about an hour and a half with his AO mentor at the end of each day to discuss his progress, and that after six months the meeting was once a week. It is Mr. Chong’s evidence that from shortly after the start the process focused on certain specialties in order to learn the medical procedures and the codes involved. He said that after six months he felt he was just starting to scratch the surface and that he could not do all the adjudications on his own, and that at the two year mark he was starting to become comfortable with all the different claims and that he was getting up to speed, but not full speed. Mr. Chong described the AO learning curve as steep but then levelling off and that there was a constant learning process involved.

33By way of further illustration of the nature of the learning curve Mr. Chong made reference to the employee who replaced him as Assessment Officer. After ten months he can handle less complex claims such as repairing knee tendons involving three codes, and is making good progress, and is about thirty per cent up to speed but cannot handle complex claims independently. Mr. Chong testified that this employee, who was previously a Claims Assessor for about four years, is focusing on orthopedics at present and will likely soon move onto another specialty such as plastic surgery. It is the evidence of Mr. Chong that a Claims Assessor could process simple surgical claims with one, two, or three codes, and operative reports attached, but that more codes would be a complex claim. Mr. Chong testified that experienced Assessment Officers would pass on forty per cent of the claims to a Medical Advisor and handle the other sixty per cent of the claims themselves.

34It is the position of the Union that Ms. Sessions is qualified to do the work of an Assessment Officer and that she should have been bumped into this position and not into the lower-level Claims Assessor position. It is the submission of the Union that the arbitral jurisprudence and case law at the Board demonstrates that in a job bumping situation arising out of being made surplus, the relevant test is whether the grievor has the minimum competence to do the core duties of the position, and that the test is not to show that the grievor is more qualified than the incumbent or to show that the grievor possesses the skills of an experienced Assessment Officer who has been in the job for several years. In short, submits the Union, the grievor only needs to be qualified at the minimum working level in order to exercise her seniority right to replace an incumbent.

35The Union submits that based on the grievor’s six years as a Claims Assessor, this being the pool from which Assessment Officers are drawn, plus the time spent by Ms. Sessions in working with the Assessment Officers Ann and Jas to help reduce their workload, and the seven years of experience gained by Ms. Sessions in the Systems Liaison / Registry position, then Ms. Sessions clearly is qualified at the minimum working level and ought to be successful in seeking to bump into the Assessment Officer position. The Union submits that in addition to Ms. Sessions having knowledge of the Schedule of Benefits and the Fee Codes she possesses knowledge of the Health Insurance Act and physician registry procedures. Further, the Union submits that Ms. Sessions has a knowledge of medical terminology, has good arithmetical and organizational skills, and has the capacity to do research and resolve non-routine claims. Additionally, submits the Union, Ms. Sessions has the oral and written skills to communicate with claims staff, service providers, and medical advisors, and that she is able to conduct individual or group briefings for Claims staff. Finally, it is the Union’s submission that that Ms. Sessions is able to assist Claims Assessors and give advice on complex claims and can advise service providers on the proper coding of claims.

36In support of its position and submissions, the Union made reference to the following decisions of the Grievance Settlement Board: OPSEU (Loebel) v. Ontario (Ministry of Municipal Affairs and Housing), GSB No. 331/82, (Verity, 1983); OPSEU (Falco) v. Ontario (Ministry of Labour), GSB No. 2011-4120, (Revins, 2013); OPSEU (Strunc) v. Ontario (Ministry of the Environment and Energy), GSB No. 1655/96, (Harris, 2000); and to O.P.S.E.U. (Galluci) v. Ontario (Ministry of Government Services), GSB No. 2012-1007, (Lynk, 2013).

37It is the position of the Employer that the grievor is just not qualified to step into the Assessment Officer position and perform the work of the identified employee who would be bumped. The Employer submits that Ms. Sessions last did Claims Assessor work in 2005, that the Team Lead position she held on an acting basis has been done by people with no claims experience, and that the position of Systems Liaison Officer / Registry Clerk is computer oriented and not responsible for claims adjudication.

38Additionally, the Employer submits the May 2012 Job Shadow Opportunity was to provide exposure to the nature of the Assessment Officer position and did not in any way represent training to provide her with the ability to do the job. The assistance provided by Ms. Sessions on an ad hoc basis to Ann Ramsay in 2006-2007 and then later to Jas Monteith was not formally supervised by them. Indeed, it is the evidence of Mr. Chong, submits the employer, that it took him two years to feel somewhat comfortable as an Assessment Officer and no longer relying on his Mentor.

39In support of its position the Employer submits that Assessment Officers handle a small number of complex claims, including complex surgical claims, whereas the Claims Assessors handle a high volume of more straightforward claims and other matters on a more general level. It is the further submission of the employer that the work of Assessment Officers involves interaction with Medical Advisers and research of resource materials of a complex nature while the work of a Claims Assessor is primarily volume driven.

40In support of its position and submissions the Employer made reference to the following arbitral authorities and Grievance Settlement Board decisions: OPSEU (Loebel) v. Ontario (Ministry of Municipal Affairs and Housing), GSB No. 331/82 (Verity, 1983); O.P.S.E.U. (Henderson) v. Ontario (Ministry of Citizenship), GSB No. 1097/91, (Barrett, 1992); O.P.S.E.U. (Bouchard) v. Ontario (Ministry of Environment and Energy), GSB No. 0055/97, (R. Brown, 1999); O.P.S.E.U. (Jackson) v. Ontario (Ministry of Transportation), GSB No. 0007/97, (Abramsky, 1999); O.P.S.E.U. (Ansari) v. Ontario (Ministry of Agriculture, Food and Rural Affairs), GSB No. 0482/97, (Abramsky, 1998); O.P.S.E.U. (Smith) v. Ontario (Ministry of Northern Development and Mines), GSB No. 1625/93, (Kaplan, 1995); O.P.S.E.U. (Rolston) v. Ontario (Ministry of Environment), GSB No. 2012-1848, (Tims, 2014); and to Ontario Public Service Employment and Labour Law, by Hadwen, Strang, Marvy, and Eady, pp 623 – 624, Irwin Law.

41The sole issue in the instant grievance is whether Ms. Helen Sessions was qualified to perform the work of the Assessment Officer position within the meaning of Art. 20.4.1.2(b) of the collective agreement. Central to the determination of this issue is that of the meaning to be given to the phrase in Art. 20.4.1.2(b) of “qualified to perform the work”. In support of their respective positions both the union and the employer made reference to Re OPSEU (Loebel) & Ministry of Ministry Affairs and Housing, the 1983 decision that is the seminal case in the matter of the displacement rights of an employee whose position has been made surplus to requirements. In Re Loebel the Board determined that the surplus employee would succeed in displacing the incumbent employee if they could demonstrate minimum competence in all of the major components of the job. The decision set out that the grievor must be able to do this as of the time of surplus and when they seek to displace the incumbent, not at some point of time in the future, and noted that the applicable article of the collective agreement made no provision for a period of familiarization or training.

42In Re Loebel the Board made reference to pages 19 and 20 of the earlier decision of Re OPSEU (J. Heginbottom) and Ministry of Revenue, GSB No. 647/81, (Samuels) involving a surplused employee where the learned Arbitrator stated:

The grievor has the right to be assigned to a position if he fulfils the conditions under the collective agreement. He doesn’t have to compete for the job …..

Article 24.2.3 makes clear that the grievor is to be assigned to a position if he is qualified to perform the work. This is an absolute provision. The grievor is not entitled only to a fair hearing. He is to get the position if he can do the work. (emphasis added)

43In Re Loebel, Mr. Verity stated at page 21:

To determine if a surplus employee is qualified to perform the work pursuant to Article 24.2.3, the Board accepts Management’s argument of “present ability” to the extent of minimum competence in all components of the job requirements. To adopt any higher test of present ability would be to destroy the significance of Article 24. 2.3. That Article has been mutually agreed upon by the Parties to benefit surplus employees by affording them certain preferential rights of appointment. Few, if any surplus employees would succeed in moving successfully from one Ministry to another if the accepted test were more stringent than minimum competence in all of the major components of the job. Such an interpretation does not mean that a surplus employee must possess skill and knowledge in all activities associated with the position. However, it does mean skills and knowledge of the main components of the position. (bold emphasis added)

Mr. Verity went on to state at page 23:

There is no doubt Dr. Loebel could have become qualified to perform the job in time. However, that is not the issue before this Board. In the present wording of article 24.2.3 there is no provision for a familiarization or training period. (bold emphasis added)

44Following on from the decision in Re Loebel over thirty years ago, the test that has been widely adopted through a series of arbitrations since that time to assess whether a surplused employee is qualified to perform the work of an identified employee and displace them, is that the surplused employee must have the present ability to perform all of the major components of the job at a minimum level of competence.

45In Re Henderson it was found the grievor did not possess the qualifications to do the core duties of the job at a minimum level. In that decision, some twenty-five years ago, Arbitrator Barrett stated in part:

Article 24.2.3 is not a job competition article and it is clear that surplus employees need only have the minimal qualifications to perform the essential duties of the position. ….. This does not mean, however, that a new lower standard of what it means to be qualified has been introduced into the collective agreement. Article 24.2.3 speaks to present qualifications, not those that could be obtained through extensive training. With extensive training, an electrician could become a plumber and a plumber could become an electrician. Neither has the present qualifications to perform the other’s job.

46More recently, the decisions of Arbitrator Brown in Re Bouchard, of Arbitrator Abransky in Re Jackson, and of Arbitrator Lynk in Re Gallucci, have re-affirmed the applicability of the Loebel test to a surplused employee seeking to displace an incumbent. The test is that to displace an incumbent, the surplused employee must have the “present ability” to perform all of the major components of the job at a minimal level of competence. Further, as noted particularly in Re Loebel, supra, as well as Re Henderson, supra, and also Re Bouchard, supra, there is no training or familiarization period applicable in a displacement situation. This foregoing test or standard has been in place now for well over thirty years and will be used to determine whether Ms. Sessions was qualified to perform the work of the Assessment Officer position.

47Ms. Sessions seeks to displace into the position of Assessment Officer in the Mississauga claims office. The evidence shows that a typical claims office has Claims Assessors, Assessment Officers, a team leader, management personnel, and administrative support staff. In each office there are a small number of Assessment Officers and a much larger number of Claims Assessors. For instance, in the Hamilton office, into which the Mississauga office has been recently integrated, there are 25 Claims Assessors and 3 Assessment Officers. These numbers are the same in the Toronto office.

48The evidence discloses that a claims office receives a large number of claims each year, of which a high percentage are dealt with by automatic machine processes. The rest of the claims proceed on to be handled by Claims Assessors. Of the claims that reach the Claims Assessors, those claims that are complex surgical claims must be passed on to the Assessment Officers for their adjudication. Then, in many if not all cases, careful examination and in depth research of the claim ensues. An Assessment Officer may spend a significant amount of time researching a complex surgical claim that frequently involves receiving input from a Medical Advisor. These complex surgical claims are not assessed by the Claims Assessors, but the payment of authorized claims is handled by them.

49On the evidence, most of the claims that come to the Claims Assessors for a payment decision are fairly straightforward and involve claims such as for physicians’ services in their offices, diagnostic issues, primary care claims, and hospital visits. The work of a Claims Assessor is volume driven with an average monthly quantity of claims assessed being in the order of 3,600 to 4,000. Claims for simple surgical procedures also reach the desk of Claims Assessors and, depending on the experience and skill of the particular Claims Assessor, are either handled by the Claims Assessor or passed on to an Assessment Officer for adjudication. A Claims Assessor has, on the evidence, fifteen minutes a week on which to approach an Assessment Officer on a claims related matter, but cannot contact a Medical Advisor to discuss an issue.

50As such, the work of an Assessment Officer involves handling some simple surgical claims plus all the complex surgical claims. Additionally, Assessment Officers respond to enquiries on complex matters from hospitals and billing agencies. In order to perform this work an Assessment Officer needs to have, in addition to the skills and knowledge of those who are Claims Assessors, the capacity to do research on claims pertaining to complex operative reports and to discuss such issues with Medical Advisors.

51On the basis of all the foregoing, it is found that the job of Assessment Officer is both quantitatively and qualitatively different from that of a Claims Assessor, even though some of the same skills are required and that Claims Assessors constitute the pool from which future Assessment Officers are drawn. The work of a Claims Assessor is volume driven with each Claims Assessor handling each day an average of 180 to 200 claims per person, and where the claims are predominantly routine. By contrast, the work of an Assessment Officer is low volume and research oriented, and deals in large part with complex surgical claims relating to complex surgical procedures that often involve multiple billing codes and overlapping claims from several surgeons.

52Ms. Sessions seeks to displace into the position of Assessment Officer. One of the core job functions of an Assessment Officer that is disclosed by the evidence is that of handling claims, especially surgical claims, which go to any of the Claims Assessors but are not processed by them because they are too complex for them to handle. It is found that based on the evidence given by Ann Ramsay, Jas Monteith, and of Helen Sessions herself, that Ms. Sessions is competent and well able to handle these particular types of claims, including the relatively straightforward surgical claims that are sometimes sent on by Claims Assessors to Assessment Officers.

53A second core component of the job duties of an Assessment Officer is the adjudication of complex surgical claims. These are claims that go directly to Assessment Officers for adjudication. In evidence from the testimony of Mr. Richard Chong are two examples of complex surgical claims to be adjudicated by an Assessment Officer that would not be done by a Claims Assessor, namely a craniotomy and a radical neck dissection. He testified that each of these surgeries involves complex procedures and requires time to go through the reports, do careful analysis and research, and then make a payment decision.

54The evidence adduced makes clear that, presently, from the time of appointment an Assessment Officer receives on the job training on a one on one basis from a designated and experienced Assessment Officer in order to develop the skills required to make independent adjudication decisions on complex surgical claims. It is the testimony of Mr. Chong that after six months of this on the job training that he still could not do all the adjudications on his own, and that with a steep learning curve it took him two years to be somewhat comfortable and confident with making independent decisions, but that he was still not at full speed. It is the further evidence of Mr. Chong that his replacement Mr. Liu is able to handle simple surgical claims but still cannot, after ten months with on the job training as an Assessment Officer, independently handle complex surgical claims. The amount of training currently in place is greater than the amount historically provided, and the evidence discloses that it currently takes many months of continuous on the job mentorship and training for a new Assessment Officer to be able to independently make some adjudications of complex surgical claims. Historically, and by way of contrast, some seventeen years ago in 1998 when Ann Ramsay became an Assessment Officer after working for nineteen years as a Claims Assessor, she said she had a two and a half week working overlap with the then incumbent of the position. In 2009 Jas Monteith did a work rotation with Ann Ramsay spread over five or six months, and said there was no formal training program.

55It is clear from the foregoing that presently it takes a substantial amount of time, and indeed many months of being peer-trained on the job, in order to be able to independently adjudicate some complex surgical claims. In 2012 Ms. Sessions received four mornings of orientation to the job of Assessment Officer, but what she received cannot be considered training to be able to independently and competently adjudicate complex surgical claims. Neither does the evidence demonstrate and make clear that the work Ms. Sessions did in assisting Ann Ramsay or Jas Moncrieff in their work as Assessment Officers was the independent adjudication by Ms. Sessions of complex surgical claims. While it is difficult to exactly quantify how much time would be needed of training and mentorship for a newly minted Assessment Officer to be able to independently adjudicate complex surgical claims at the minimum level of competence, it is clearly of many months duration and well in excess of the amount of time the evidence shows that Ms. Sessions spent on an ad hoc basis with Ann Ramsay and Jas Monteith.

56This is not to say that Ms. Sessions could not adjudicate complex surgical claims given time on the job and suitable training. However, as discussed supra, that is not the test set out in Re Loebel. In order for a grievor to displace into a position upon being declared surplus, a grievor must be able to demonstrate that they are ‘job ready’ and can step into the job and perform all of the core duties of the position at a minimum level, and without any training. In the instant case Ms. Sessions cannot do that. Being able to independently adjudicate complex surgical claims is a core function of the position of Assessment Officer. That is something that Ms. Sessions has not demonstrated that she can do.

57Accordingly, the grievance of Ms. Sessions must be denied.