Mechanic denied short-term benefits before lay-off
When Bryan Kaardal — an instrument mechanic at Catalyst Paper in Elk Falls, B.C. — went on short-term disability leave, there were some discrepancies involving his doctors, translating to confusion surrounding such benefits.
In 2001, Kaardal was diagnosed with multiple sclerosis (MS). At the time, he was under the care of both a neurologist and a family doctor. After being on leave for some time — receiving short-term disability benefits — Kaardal returned to work with approval from his doctors.
But he could no longer perform his duties as an instrument mechanic and instead his employer accommodated his return to work under a new position in the shop and engineering department.
In February of 2009, he fell ill with pneumonia and took time off. A few weeks later, he was laid-off because of an indefinite mill curtailment.
He applied for short-term benefits for the time period between his illness and layoff — but his employer refused the claim.
Complicating the matter was that both of Kaardal’s doctor’s had differing opinions on when he should return to work and whether his bout of pneumonia was related to his MS, which would affect his short-term benefit eligibility.
Unifor Local 1123 filed a grievance on his behalf, arguing the progression of the disease entitled him to disability benefits.
More specifically, "(Kaardal) was disabled as a result of multiple sclerosis. Pneumonia triggered the worsening of his symptoms such that, in retrospect, he was unable to work as of February that year," the union argued, basing its evidence on medical information.
The employer — and in turn the insurance provider — failed to investigate discrepancies between medical opinions or conduct an inquiry. Further, the union went on to say, the carrier assumed — wrongly — that no benefits are payable during a layoff.
On the other hand, Catalyst Paper dismissed the union’s claims as "idiosyncratic."
Unifor’s submissions ignored the language in the collective agreement, and it dispensed with the concept of "burden of proof," the employer argued.
While not seeking to impugn Kaardal’s doctors’ credibility, the employer claimed the doctor’s declaration stating he was able to return to work was advocacy disguised as opinion.
"In other words, the evidence of (the doctor) — who conceded he is ‘non-judgmental’ regarding Kaardal’s subjective symptoms — lacks not so much credibility as reliability," the employer said.
Essentially, there was no objective evidence saying there was a change in Kaardal’s MS symptoms during the time period in question — and it remained that when he had a case of pneumonia, he was not disabled due to multiple sclerosis.
Joan McEwen, who heard the grievance, agreed with Catalyst Paper.
Citing mainly a lack of evidence, she agreed with the response of the insurance carrier, which stated, "As your physician has indicated that you were fit to return-to-work effective Feb. 27, 2009, I am unable to determine that you continue to be totally disabled."
As such, Kaardal’s grievance was denied.
Reference: Catalyst Paper Corporation and Unifor Local 1123. Joan McEwen – arbitrator. Donald Jordan for the employer, Patricia Deol for the union. April 7, 2014.
