Debilitating symptoms disabled employee from work: Arbitrator
The Ontario Nurses’ Association filed grievances against North York General Hospital after Mary Ann Schinbein was denied sick benefits.
One grievance alleges a failure to pay sick benefits from Oct, 15 to 26 in 2012 while the second alleges a failure to pay sick benefits from Dec. 5, 2012, to Feb. 4, 2013. Additionally, the union argued the employer discriminated against Schinbein contrary to the Ontario Human Rights Code when it failed to pay those benefits. The union sought payment for the aforementioned benefits as well as general damages.
Schinbein — working in the employer’s neo-natal intensive care unit — was diagnosed as having irritable bowel syndrome (IBS) in 2009. IBS is a chronic illness and Schinbein’s symptoms became more and more severe. In September 2012 her physician issued her an attending physician statement (APS) recommending her shifts be restricted. In October, Schinbein’s health had deteriorated to the point where she was unable to attend work.
Schinbein was off work from Oct. 15 to 25 before being deemed fit to return to full duties by her doctor. On Nov. 12, however, Schinbein’s symptoms once again worsened and her doctor issued her an APS indicating she would be totally disabled from performing her duties for a period of up to two months.
The employer did not immediately accept the APS and requested a meeting with Schinbein’s doctor to discuss her condition. Following this meeting the employer did not accept that Schinbein was unable to work in an accommodated position, and recommended she return to work performing non-clinical duties with ready access to a washroom.
In response, Schinbein’s physician issued a further APS restating the opinion she was unfit for work. The statement cited various symptoms including severe acute anxiety, decreased concentration, irritability and a feeling of being overwhelmed as a result of dealing with a chronic illness.
Schinbein did take time off work and sought treatment from a naturopath. In late January she saw her doctor and was declared fit to return to full duties in late January 2013. She returned to work in February.
The employer argued it was not required to pay sick benefits for Schinbein’s October absences because they were not authorized until after her return to work. It also argued her IBS symptoms had improved in December 2012 and that Schinbein could have attended work performing accommodated duties.
Arbitrator Norm Jesin found the evidence presented supported Schinbein’s absences.
“In this case I accept first the evidence of the grievor that throughout her absences in October 2012 and again commencing in November 2012, she suffered debilitating symptoms of diarrhea, incontinence, anxiety and fatigue that disabled her from her occupation,” Jesin said.
As a result, he found the employer’s denial of benefits for the periods in question was a breach of both the parties’ collective agreement and the Human Rights Code. He therefore ordered the grievances be allowed in part.
The employer was directed to reimburse the grievor for benefits for the period from Oct. 15 to 26, 2012, and from Dec. 22, 2012, to Jan. 18, 2013. The claim for general damages, however, was dismissed.
Reference: North York General Hospital and the Ontario Nurses’ Association. Norm Jesin — arbitrator. Scott T. Williams for the employer, Stephen Moreau and Michael Mandarino for the union. Feb. 8, 2016.
