Pushed into financial hardship and homelessness after her workers’ compensation claim was denied because of numerous employer errors, a postal worker grieved.
Beginning as a contractor in 2003, covering for sick days and vacations, J.S. became a post office employee three years later when she got her own route. While her route was officially rated at 5.38 hours, the actual time to complete the route could reach eight hours daily depending on seasonal mail volumes. However, J.S.’s real workload exceeded that by about 50 per cent because she continued to do her contract work on top of her regular route.
J.S.’s workload became an issue in 2007 when she claimed that she had become disabled by a work-related musculoskeletal disorder. She submitted a note from her doctor, which diagnosed carpal tunnel syndrome, went on Injury on Duty Leave as provided for under the collective agreement and sought workers’ compensation.
While J.S.’s claim referenced the actual number of hours she was logging, the employer challenged the claim to the compensation board, submitting that a diagnosis of work-related bilateral carpal tunnel syndrome was not credible for someone working 5.38 hours per day.
Incorrect information submitted
In support of its assessment that J.S.’s injury was not work-related, the employer also provided the compensation board with a Physical Demands Analysis (PDA) for the Motorized Letter Carrier (MLC) position. While aware of the fact that J.S. was in fact a Rural Service Mail Carrier, the employer took the view that the substitution was justified because the jobs were somewhat the same and, in any case, the employer didn’t have a PDA for J.S.’s job on hand.
However, these issues did not come to light immediately because, for reasons not explained, the employer initially processed J.S.’s claim as a request for compassionate care leave. This delayed the processing of her claim by one month.
When the claim did finally reach the board it was rejected, prompting J.S. to request that the contents of the file be disclosed. Upon discovering that the wrong PDA had been submitted along with an inaccurate account of her hours of work, J.S. approached her supervisor with a request that the correct information be re-submitted.
Instead, the employer stuck by its submission and urged that the claim be denied. In May, after seven months without income, the claim was denied a second time.
Once apprised of the correct information, the board finally accepted the claim on appeal.
Allegation of bad faith
The union grieved J.S.’s treatment. The employer had failed in its obligation under the collective agreement to deal with J.S.’s claim with due diligence and in good faith. Instead, the union said, the employer had acted in bad faith and had misled the compensation board about J.S.’s claim causing her emotional and financial harm.
The Arbitrator agreed with the employer’s assertion that the collective agreement language on Injury Leave contained no specific references to a requirement either for reasonable care or good faith.
However, the Arbitrator said, such obligations were clearly implicit if the administrative arrangements to synchronize the leave provisions in the collective agreement with the legislated requirements of the compensation Act were to make any sense. The legislated requirement that the employer notify the board about the nature and circumstances of a worker’s injury in order to adjudicate any claim would be meaningless without the expectation that the information supplied was accurate, the Arbitrator said.
The collective agreement did confer an obligation on the employer to provide accurate information to the compensation board, and in this case the employer failed to take reasonable care, the Arbitrator said.
While the employer offered no explanations for the four material errors it made in the handling of J.S.’s file, the Arbitrator was not prepared make a finding of bad faith.
Not an impressive performance
“To say the least, this was not an impressive performance by the Corporation. Nevertheless, bad faith is a grave accusation and I do not find evidence supporting the Union’s position in this regard.”
However, the errors committed by the employer “exceeded the limits of ordinary administrative missteps,” the Arbitrator said.
“While it is not possible to say with certainty that correct information would have ensured an acceptance of the grievor’s claim right away, I find that the erroneous information supplied by the Corporation materially reduced her opportunity for an early, successful result … For these reasons, I conclude that the Corporation breached its duty to take reasonable care in processing the grievor’s WCB injury claim.”
The grievance was upheld.
