Ontario Public Service Employees Union v. The Crown in Right of Ontario (Treasury Board Secretariat), 2020 CanLII 105706

GSB# 2016-1340

UNION# 1154337

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union (CRS))

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Jasbir Parmar

Arbitrator

FOR THE UNION

Erin Thorson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Sean White Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 16 and November 18, 2020

Decision

INTRODUCTION AND JURISDICTION

1This decision addresses an appeal of denial of long-term income protection (LTIP) benefits, filed by B.W.

2My jurisdiction to address this matter arises under Article 22.9.2 of the collective agreement between the parties, which provides for complaints of this nature to be referred to the Joint Insurance Benefits Review Committee (JIBRC), established under Appendix 4 of the collective agreement.

3Paragraph 4(vi) of Appendix 4 states that one of the duties of JIBRC is to “review contentious claims and recommendations thereon, when such claims have not been resolved through the existing administrative procedures”. Of note, the LTIP Plan is administered by Manulife (referred to as the insurer).

4Appendix 4 provides for a subcommittee, whose mandate is to review and make a decision on complaints involving the denial of insured benefits under the central collective agreement. The subcommittee includes an independent third party agreed to by both parties. I am the independent third party agreed to by the parties in the instant case. The Appendix also states that decision of the subcommittee is final and finding (see paragraph 6(d)).

5The parties have developed Terms of Reference for the JIBRC Claims Review subcommittee. For the purposes of the present case, it is sufficient to note the following significant points:

i) the subcommittee represents the final stage in the appeal process;

ii) the decisions of the subcommittee are final and finding; and

iii) decisions must be in accordance with the OPS collective agreement and consistent with the group insurance plans in place at the time the facts giving rise to dispute arose.

FACTS AND ISSUE

6The parties have agreed to the following Statement of Facts:

1. B.W. was born on November 18, 1963, and is currently 57 years old.

2. B.W. has been an employee of the Ontario Public Service for 31 years, hired as a Corrections Officer in October 17, 1988.

3. B.W. left the workplace on July 22, 2008 after claiming a workplace injury to their right shoulder, back and neck. They submitted a claim through WSIB. WSIB approved benefits on October 27, 2008 to the date of injury and recognized a compensable workplace injury to B.W.’s right shoulder. B.W. received full WSIB Loss of Earnings benefits until June 12, 2012, after which they received partial Loss of Earnings Benefits.

4. B.W. applied for long-term disability benefits on November 21, 2008 with diagnoses of shoulder injury, neck/right shoulder/back pain. The Employer’s Statement was submitted to Manulife on November 14, 2008. The Employee’s Statement and Attending Physician’s Statement were dated November 17, 2008.

5. On April 8, 2009, B.W. was denied for long-term disability benefits for the ‘own occupation’ period, the first 30 months of total disability.

6. B.W.’s first appeal of the denial of LTIP benefits was made to directly Manulife on April 16, 2009. The denial was upheld on June 29, 2009.

7. B.W.’s second appeal of the denial of LTIP benefits was made directly to Manulife on July 21, 2009. The denial was upheld on October 13, 2009.

8. B.W. applied for Canada Pension Plan Disability benefits in or around 2009 and was denied. B.W. appealed this decision and their appeal was denied on February 20, 2011.

9. An Appendix 5 was received on November 6, 2009 initiating the JIBRC appeal.

10. Further reconsiderations by Manulife were completed which upheld the recommendation to JIBRC to deny benefits on April 17, 2013 and May 22, 2014.

11. The claim was referred to the Claims Review Subcommittee for determination on June 28, 2016.

12. Manulife received additional medical from OPSEU and maintained their decision to decline B.W.’s claim for LTIP benefits on December 14, 2018.

13. B.W. believes that they are entitled to benefits for the OWN OCCUPATION period from January 23, 2009 to January 23, 2011.

14. B.W.’s Change of Definition date from “own occupation” to “any occupation” for long-term disability benefits was January 23, 2011.

7Pursuant to Article 42.2.3 of the collective agreement an employee is entitled to receive LTIP benefits after a six-month qualification period from the date the employee becomes totally disabled. Total disability is defined in the provision as follows:

Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform the essential duties of his or her normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period,….

8As B.W ceased working on July 22, 2008, in order to be eligible to receive LTIP benefits B.W must establish a continuous inability to perform the essential duties of B.W’s normal occupation from July 22, 2008 through January 23, 2009. Manulife denied the claim on the basis that B.W failed to meet that test.

ANALYSIS

9I have considered all of the documentation and the submissions of the parties. Having done so, I find that the test for entitlement has not been met.

10B.W has a long history of medical issues. Fortunately, despite these issues, B.W. was able to return to the workplace in 2004 in an accommodated position as a Corrections Officer in the Control Room Module. As confirmed by the Employer to Manulife in April 2009, B.W’s position in the control room was a permanent accommodation. This was essentially a sedentary position, and consistent with the restrictions related to the neck and back. B.W. worked in that position until July 2008, when B.W. had the accident and went off work. There is no dispute that B.W suffered an injury at that time, or that B.W. may have continued to suffer from disabling symptoms throughout the relevant period. The dispute is whether the nature and extent of the disability was such that it prevented B.W from performing the work of the position in the Control Room.

11I turn now to the scope of B.W’s disability during the relevant period. While there are some reports filed by B.W’s family physician shortly after the accident, by September 29, 2008 a physiotherapy assessment indicated B.W’s only restrictions were repetitive use of the right upper extremity and lifting more than 10 pounds with the right upper extremity. B.W also underwent a multidisciplinary assessment on January 21, 2009, which B.W should undergo treatment and return to modified work as soon as possible, with the only restriction being in overhead activities. While B.W’s family physician provided a couple other reports during this time period, and one in July 2009 which suggested B.W was totally disabled, I prefer the conclusions of the physiotherapy and multidisciplinary assessment, which provide greater clinical detail explaining the medical opinion of B.W’s level of functioning at that time. They also provide relatively consistent opinions from two separate health care practitioners.

12I have also considered a functional capacity evaluation B.W underwent in April 2009. While the assessors concluded the demonstrated level of functioning was below the sedentary level, they also noted B.W was self-limiting during a majority of the tested items. As a result, in my view, their conclusions about B.W’s level of functioning cannot be given significant weight.

13There is little other medical documentation that speaks to B.W’s condition during the period from January 2009 to January 2011. There are two reports from Dr. Mitra, an orthopedic specialist, dated March 12 and October 16, 2009, and a Non-Economic Loss (NEL) award assessment from the WSIB in respect of B.W’s shoulder. While these address B.W’s range of motion (and provide inconsistent opinions, I note), they do not speak to the issue of B.W’s capacity in terms of returning to work to the Control Room position which is a largely sedentary role.

14While the Union pointed to a WSIB decision from June 2009 that concluded B.W was unable to return to work at that time, aside from the fact that I am not bound by the conclusions of the WSIB, I observe that at a later date the WSIAT noted that the WSIB’s conclusion was inconsistent with the medical documentation, a view I share.

15I find that B.W’s restrictions during the relevant period were, at most, overhead activities, repetitive use of the right shoulder, and no lifting over 10 pounds.

16The Union submits that these restrictions rendered B.W totally disabled from the Control Room position. The Union’s position is based on two assertions. The first is that B.W’s accommodated position was not available, and so B.W, could not have returned to work as a Corrections Officer. The second is that even if it had been available, the duties were not consistent with B.W.’s restrictions.

17With respect to the availability of the work, the Employer wrote to B.W on March 19, 2009 indicating it was offering B.W. a return to the accommodated position. While there is reference in a Work Transition Specialist (WTS) report dated December 8, 2011 that the position was no longer available, I give greater weight to the Employer’s letter written contemporaneous to when the return to work would have occurred. There is no evidence that B.W made themselves available for work any time prior to January 23, 2011 (the end of the window during which B.W. must establish total disability). A conversation about the availability of the position in late 2011 is of little relevance in determining whether the position was available from 2009 to early 2011.

18With respect to the suitability of the position, the key task which the Union asserts made the job unsuitable is the requirement to be able to lift a 20-to-30 pound breathing apparatus as part of training and emergencies. In this respect, the Union relies on the reference in the WTS report from March 2012, which stated that due to the physical demand of the accommodated job B.W was doing, “carrying a mandatory 20 to 30 lbs breathing apparatus for training and in case of emergencies”, the preinjury job was not suitable.

19This statement is inconsistent with earlier evidence which directly addresses the demands of the job. The inconsistency may be explained by the fact the WTS was speaking with an individual from Human Resources, who perhaps did not have a full understanding of the job.

20In fact, an ergonomic assessment of the Control Room Module position was conducted in January 2004, prior to B.W being placed in that position as an accommodation. On that occasion, both the Superintendent and Deputy Superintendent attended during the assessment. As individuals involved in operations, they would have a better understanding of the job requirements than someone from Human Resources.

21At that time, in 2004, the ergonomist was considering the following relevant restrictions:

Back

• Repetitive trunk movements

• Bending

• Lifting limitation

• Prolonged weight bearing

• Prolonged time periods in one position

• Low level work

• Heavy pushing or pulling (against resistance)

• Twisting

Neck

• Repetitive neck movement

• Above shoulder and overhead activity

• Lifting limitation

• Awkward postures (sustained)

22The ergonomist expressly turned his mind to the physical demands related to the breathing apparatus and determined the restrictions did not prevent performance of the related task:

The final concern is that the worker may have to wear SCBA gear – however, the worker does not have to have the tank on their back – they only have to put the mask on as there is a long hose that supplies the mask.

23The above shows that it had already been determined that the breathing apparatus task could be accomplished without carrying the heavy weight of the tank. Moreover, despite the lifting and overhead restrictions in place as of 2004, B.W managed to perform the job from 2004 to 2008 using this modification. Presumably, B.W. was also able to complete any training/certification requirements related to the breathing apparatus as well. There is no evidence to suggest otherwise.

24While the Union suggested that B.W had additional restrictions in 2009, beyond those B.W. had in 2004, that assertion is not supported by the evidence. The 2004 ergonomic assessment considered both overhead and lifting restrictions, the very restrictions noted in the medical documentation in 2008/2009. The Union suggested that before it was just a “lifting limitation” and the 10 pound limitation was something more restrictive. I disagree for two reasons. First, it is speculation that the lifting limitation the ergonomist considered was greater than 10 pounds. Given that lifting was limited as a result of two separate areas, the neck and the back, the lifting restriction was likely significant. Second, and more to the point, the ergonomist concluded that it was possible to carry out the task without lifting. Thus, even if the lifting restrictions in 2004 were not as significant as the 10 pound maximum B.W had in 2009, it is clear that the task itself could be modified such that lifting was not required. As such, there is no evidentiary basis to conclude that B.W’s restrictions from 2009 would have prevented B.W. from continuing to perform the job with the same modification.

25In summary, the evidence does not support the conclusion that B.W met the definition of total disability during the relevant period.

DISPOSITION

26The appeal is dismissed.