Nip and tuck recovery qualifies for sick pay (Legal view)

Employer claimed elective cosmetic surgery was ‘self-inflicted injury’ and ineligible for benefit, but arbitrator disagreed
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 09/17/2009

Is going under the knife for a little nip and tuck a self-inflicted injury? An Ontario employer said yes when it denied short-term sick pay benefits to an employee who had voluntary cosmetic surgery and needed two weeks to recover. However, the Ontario Arbitration Board ruled the surgery was for legitimate reasons and shouldn’t be considered a self-inflicted injury.

North Bay General Hospital in North Bay, Ont., provided and funded a short-term sick leave plan under its collective agreement. Under the plan, employees with at least three months’ service who were absent from work because of a “total disability” were eligible for sick pay benefits.

The hospital paid two-thirds of the salary of an employee with less than one year of service, increasing incrementally to a full payment of salary for employees with four years of service, for up to 15 weeks.

The hospital’s policy brochure, which was divided into descriptions of short-term sick pay and long-term disability (LTD) coverage, defined total disability as the inability to perform regular duties because of injury or illness while not working in any other job.

At the end of the brochure, after the LTD section, the policy stated “all total disabilities” were covered except for those that were the result of a “commission by you of a criminal offence, engagement in an illegal occupation, wilfully self-inflicted injury or war.”

Surgery after weight loss

The North Bay General Hospital worker had lost a significant amount of weight, which left her with excess skin. She decided to have cosmetic surgery to remove excess skin and tighten it up. The surgery wasn’t covered by provincial health care so she had to pay for it herself. After the surgery, she was required to stay in bed for two weeks to recover.

The employee applied for sick leave for her two-week recovery period since she was unable to work because of the operation. The employer denied her claim, saying the operation was “wilfully self-inflicted” and her disability was excluded by the sick pay policy. The surgery was done at her request and qualified as wilful and self-inflicted, said the hospital.

The union argued the exclusion of wilfully self-inflicted injuries only applied to LTD benefits because the information brochure placed the exclusion at the end of that section.

All surgery is voluntary, said the union, even if it is considered crucial, and the employer shouldn’t be allowed to second-guess the appropriateness of any surgery and an employee’s medical treatment decisions.

Exclusion applied to all disability benefits

Though the placement of the exclusion was after the description of LTD benefits, it was reasonable to assume the exclusion applied to the entire brochure, found the board. The wording also included a reference to “all total disabilities” and outlined the brochure’s overall purpose to “provide a broad understanding of the plan.” This, said the board, made it clear the last paragraph described the whole plan, including sick pay and LTD benefits.

“The exclusion paragraph is the last paragraph in the brochure and clearly the last paragraph is intended to describe the contents of the plan,” said the board.

Surgery not self-inflicted injury

However, the employee’s cosmetic surgery didn’t meet the definition of self-inflicted injury and, therefore, she was eligible for sick pay benefits, found the board. She had elected to undergo surgery for legitimate reasons to improve her quality of life and to deal with a health issue and the resulting temporary disability was legitimate and should be covered by sick pay benefits, it said.

“The exclusionary term ‘wilfully self-inflicted’ should not be applied to a total disability that is reasonable or understandable in all of the circumstances,” said the board. “(The employee’s) surgery was a reasonable option and was undertaken for valid reasons of self-esteem that are readily understandable. The resulting convalescent time was expected and proportional to the surgery.”

For more information see:

North Bay General Hospital v. O.N.A., 2009 CarswellOnt 4209 (Ont. Arb. Bd.).

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.

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