If your job and personal life are starting to stress you out, and you want to get away from it all by going on long-term disability and taking a yoga retreat to India, chances are, your job won’t be waiting for you when you decide to come back. This is the outcome of a recent Ontario Arbitration Board decision on the matter of Ontario Power Generation v. Society of Energy Professionals,  108 C.L.A.S. 340.
Effectively, the decision is authority for the principle that just because a medical professional has made a recommendation to provide or extend long-term disability (“LTD”) entitlements, it does not mean an employer must automatically comply. This article will provide a breakdown of the Arbitration Board’s decision, and then discuss some of its implications.
The Grievor was 40 years old. He worked for Ontario Power Generation (“OPG”) for 12 years as an engineer before resigning in November 2010. He worked for the company until January 1, 2010 when he went on sick leave, suffering from severe mental stress and depression as a result of the breakup of his second marriage.
The Grievor was taking medication for depression, panic, insomnia and anxiety. He also attended a 6-week mental health program, but emerged from it, on his own assessment, worse off than when he entered. In mid-2010, the Grievor and his psychiatrist resolved that his mental health might improve if he were to attend an ashram (a yoga retreat) in India. The idea was that the Grievor could improve his mental health through spiritual instruction and meditation of a 6 week period, where he’d also be collecting LTD benefits.
Great West Life disagreed with the idea on two fronts: 1) the company was not convinced a 6 week visit to an ashram would advance the Grievor’s treatment, and 2) that yoga and meditation could be reasonably be pursued in Canada.
During the fall of 2010, the Grievor told OPG, the Society of Energy Professionals, and Great West Life, that he was extremely anxious and having panic attacks, all because of Great West Life’s unwillingness to support his decision to get treatment at the ashram. Great West Life required the Grievor to undergo an independent medical assessment, but he declined. Great West Life then informed the Grievor that if he chooses to go to the ashram, his LTD benefits would be suspended.
Great West Life arranged for a psychiatrist of its choosing to speak to the Greivor’s psychiatrist. The consulting psychiatrist reported that, essentially, a 6 week long retreat to an ashram was unnecessary, because in her opinion, yoga was not a psychiatric treatment and because the Grievor must learn to manage his symptoms in the context of the normal stresses of his job, not the tranquil environment of an ashram. In October 2012, despite the warning about LTD benefits being suspended, the Grievor left for India anyway. Later in the month, Great West Life cut off his LTD benefits. Two days after the Grievor received notice from Great West Life, he resigned from his position at OPG.
The Grievor eventually recanted on his resignation, but OPG said it was too late. At issue in the arbitration was the decision to cut off the Grievor’s LTD benefits, and whether the resignation was valid.
LTD entitlements depend on employment with OPG. As the line of reasoning goes, if someone is no longer employed by OPG, their LTD benefits will cease. The LTD plan states that the benefits are not payable during:
A) Any period while the employee is not under continuing medical supervision and treatment considered satisfactory to Great West Life and OPG by a physician, or;
B) If the disability is due to a mental disorder, any period while the employee is not under the continuing care of a certified psychiatrist or care authorized by a certified psychiatrist.
OPG argues that the Grievor’s employment terminated as a result of the resignation, and therefore, the LTD grievance automatically falls away. The Greivor and his union, on the other hand, argue that the resignation was not genuine because the Grievor did not have the mental capacity to make it at the time.
The Arbitrator, Christopher Albertyn, upheld the resignation. He specifically noted in the ruling:
The decision to quit appears not to have been a spur of the moment act, particularly because it occurred two days after notice of the LTD suspension and it was followed by emails that affirm the decision.Weighing on the Arbitrator’s decision was the Grievor’s conduct and receptiveness in relation to the second medical opinion Great West Life sought.
The Arbitrator said the Grievor was clearly firmly set on the idea of attending an ashram in India, returning to his family there, and having their support. However, the Greivor greatly resented the decision by Great West Life that he could not pursue this objective while continuing to be paid his LTD benefits, particularly when his psychiatrist supported his plan.
The Arbitrator noted that the Grievor was uncooperative with the insurer, by refusing to be examined by an independent psychiatrist. Given that the Grievor’s LTD grievance depended upon his continuing employment with OPG, and because the Grievor was found to have quit, the Arbitrator denied both grievances.
Curiously, because mental illness was a factor in the resignation and severance of LTD benefits, the Arbitrator decided that some compensation was necessary. OPG was ultimately ordered to pay the Grievor the sum of one year’s pay, calculated on the Grievor’s salary at the time of his resignation.
Medical experts and the law go hand in hand. There is a very well developed body of law dedicated to medical experts and how their opinions should be considered. As a general rule, a trier of fact is not obliged to accept any aspect of the expert opinion, even where it is uncontradicted.
This particular Arbitration Board decision didn’t necessarily deal with competing medical opinions, but rather, the right of one party to challenge the medical opinion put forth by the other. Before Great West Life would agree to continue the LTD benefits while the Grievor was in India at the retreat, the insurer wanted a second opinion.
As previously discussed, the Grievor refused the medical examination, forcing Great West Life to take an alternate route, namely, having one of its consulting psychiatrists meet with the Grievor’s psychiatrist. What’s interesting is that the Arbitrator gave a significant amount of consideration to the Grievor’s uncooperativeness. Had he cooperated and take the independent medical assessment in the first place, perhaps Great West Life would have received a second opinion stating that a 6 week retreat to an ashram was appropriate. This would have likely altered Great West Life’s decision to cut the LTD benefits.
The important point employers can take from this decision is that in the event a medical report is provided saying an employee should receive some sort of exotic treatment while still receiving LTD benefits, a second, independent medical assessment should be carried out, or at least proposed.
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