City of Toronto worker denied LTD benefits despite multiple doctor’s notes

Incident 'reawakened' PTSD from past trauma

After an altercation with a coworker, a City of Toronto technology analyst was transferred to another location.

The employee, who was identified as “A.B.,” had worked for the city since 1996.

In 1998, A.B. was assaulted by her ex-boyfriend. He was charged but released on bail. During this time, the boyfriend stalked A.B. before he was re-arrested and jailed for breaching bail conditions. 

During the two years it took to resolve the ex-boyfriend’s case, A.B. occasionally took time off work due to the stress.

In 2002, A.B. received a promotion and was transferred to another location on Dufferin Street. A.B. testified that part of the decision to move was because the Dufferin location was more secure than Metro Hall, which contained open public spaces throughout the building.

But on Dec. 19, 2014, she was ordered to be moved away from the Dufferin location after a fight with a coworker, because A.B. was adjudged to be more at fault.

On Feb. 2, 2015, A.B. made a request to remain at the Dufferin location as it was closer to her son’s daycare centre. (A.B.’s son had multiple anaphylactic allergies, and she wanted to be close enough to respond to any emergencies, she testified.)

The city denied the request and unilaterally moved her to another location that was one kilometre away from the Dufferin spot, which would still allow her to deal with her son’s medical issues.

But before the transfer was scheduled, A.B. went off work due to illness. 

A.B. also made another request to her employer: That she be allowed to remain at the Dufferin location due to her medical condition. 

“(A.B.) is diagnosed with post-traumatic stress disorder resulting from a past traumatic experience that has been reawakened by the incident at work. Specifically, she feels safe and protected at her current work location as it is not a public space; however, the employer’s insistence to move her to North York Civic Centre (NYCC) has significantly exacerbated her anxiety as NYCC is an open public space which is less secure and the assailant, who knows her, may freely enter,” said a letter written by Dr. Eyal Bodenstein on April 30.

After her sick leave and vacation benefits ran out, A.B. made a claim for LTD benefits with Manulife, the employer’s benefits provider.

To support her claim, two other doctors submitted reports that detailed how A.B.’s condition would be worsened if she was forced to leave the Dufferin location.

But on Jan. 11, 2016, Manulife turned down her claim for LTD benefits. After an appeal, the claim was again denied by Manulife.

A.B. returned to work at the Dufferin location on Sept. 17.

The union, the Canadian Union of Public Employees (CUPE), Local 79, grieved the decision and argued A.B. was “totally disabled” during the period between April 29, and Oct. 28, 2015, and she was entitled to the benefit.

However, arbitrator Christine Schmidt disagreed and dismissed the grievance. 

“I am unable to accept that Dr. Bender’s and Dr. Bodenstein’s reports are, as the union submits, consistent in that they find that the grievor was ‘totally disabled.’ Both Dr. Bodenstein, a psychologist, and Dr. Bender, a psychiatrist, produced reports whose focus was primarily directed at the grievor’s request for a workplace accommodation, which is a distinctly different issue from the assessment of total disability that I must make having regard to the language of the plan.”

The arbitrator also found fault with how the union presented its evidence to establish “total disability.”

“Dr. Bender’s report suggests that the grievor should not be transferred to another location without first undergoing the therapy sessions referred to in his report. That, in my view, cannot be interpreted as a declaration of total disability. At best, what Dr. Bender is saying is that further treatment is required before A.B. resumes her regular duties in a new environment,” said Schmidt.

And what Dr. Taylor wanted, when he suggested A.B. stay at Dufferin, was “the only reasonable accommodation of A.B.’s condition. However, that is a different issue from the question of total disability,” said Schmidt.

Reference: The City of Toronto and Canadian Union of Public Employees, Local 79. Christine Schmidt — arbitrator. Sharmila Clarke for the employer. Doug Wray for the employee. Aug. 1, 2018. 2018 CarswellOnt 12550

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