Chronic pain prevented employee from performing her duties
Hilary Waugh was denied long-term disability benefits after she fell down the front steps of her home.
Her union, the Ontario Nurses’ Association, filed a grievance on her behalf after the third-party carrier Desjardins denied her claim for disability benefits.
When Waugh fell down her steps on Dec. 17, 2011, she feared she had seriously injured herself. Waugh went immediately to the emergency room of her employer, the North Bay Regional Health Centre, and X-rays were ordered for both her left knee and right ankle.
Doctors sent Waugh home with medication and crutches. Swelling and numbness continued in both of her feet so, in the following days, Waugh returned to the emergency department several times.
Diagnoses of strained ligaments and later of Reflex Sympathetic Dystrophy Syndrome (RSD) followed and Waugh’s doctor recommended physiotherapy.
Waugh provided her employer with a doctor’s note excusing her from work until Jan. 10, 2012, and discussions began about returning Waugh to work on a modified work plan.
Waugh worked as a psychiatric nurse in the mental health area of the North Bay Regional Health Centre, commonly called the “Sunshine Lodge.”
Several different plans were made in an attempt to accommodate Waugh following her injury, but because she was not able to stand or walk for more than 30 minutes, her restrictions were deemed incompatible with the regular duties included in conventional bedside nursing.
In May 2012, Waugh was assigned to desk duties and administrative project work.
But even with severely limited duties, Waugh struggled to attend work. In June 2012, the hospital concluded there was no modified work plan that would allow Waugh to return to work and the attempts were abandoned.
Waugh’s doctors reported she was diligent about her physiotherapy in this time, trying everything from strength and stretch exercises to acupuncture.
Eventually, it was determined the therapies were not resolving Waugh’s pain but rather aggravating it, and further limiting her.
Her doctor ended Waugh’s sessions on Oct. 24, 2012, and in that same month, a claim was filed for long-term disability benefits.
On Nov. 22, 2012, the claim was denied by third-party carrier Desjardins because it deemed the medical information provided “insufficient to confirm an impairment” that would prevent Waugh from performing her regular duties.
Following the denial, the union had Waugh undergo a functional capacity evaluation, which concluded she did not have the physical capacity to perform her duties. With the evaluation, the union appealed Desjardins’ rejection of her claim.
That appeal was denied by Desjardins on May 17, 2013, and the union filed a grievance on Waugh’s behalf.
According to the union, the functional capacity evaluation was completed in accordance with industry standards and practices and, along with evidence from Waugh’s doctors, proved she was physically unable to perform her duties as a result of her chronic pain.
The employer, however, argued the carrier believed the functional capacity evaluation featured several shortcomings.
Furthermore, the carrier took issue with the fact that no organic basis — in other words, no concrete diagnosis — had been found that could explain Waugh’s pain and physical limitations.
Arbitrator sides with employer
Arbitrator Dana Randall, however, found the evidence provided by Waugh’s doctors, along with the results of the functional capacity evaluation and the fact that the employer itself found Waugh was in too much pain to attend work even in a modified position, was sufficient evidence of her inability to perform her duties.
Furthermore, Randall found that the numerous pain medications prescribed to Waugh — some of which resulted in drowsiness, dizziness or a loss of co-ordination — would further prevent her from doing her job as a nurse.
As a result the grievance was upheld and Randall ruled Waugh was entitled to long-term disability benefits.
The employer was ordered to calculate and pay the benefits within a 17-day period due to the significant delays in addressing the matter.
Reference: North Bay Regional Health Centre and the Ontario Nurses’ Association. Dana Randall — arbitrator. Shane Smith for the employer, John D’Orsay for the union. Feb. 29, 2016.