Denial of benefits 'not conclusive as to whether or not an employer needs to accommodate that employee'
“What really got the employer in trouble was the reliance on a third-party medical opinion that, in the opinion of the arbitrator, was not comprehensive enough.”
So says Sharaf Sultan, an employment lawyer and principal of Sultan Lawyers in Toronto, in reference to a recent Ontario decision.
An arbitrator ruled that an Ottawa museum unjustly dismissed a worker for not returning to work after the long-term disability (LTD) benefits provider said that she wasn’t disabled — even though her own doctors said she wasn’t able to return yet.
It’s a warning that information from the worker’s own medical team should be given precedence over third-party opinions, particularly when mental health is involved, says Sultan.
“If you secure the opinion of a third party and it's going to disagree with the primary caregivers, you’d better be able to really explain why,” says Sultan. “And I understand why employers get a third [party] because they often become frustrated that the employee may not be following up with the speed that they prefer.”
“It's very difficult to demonstrate that there is not a duty to accommodate or, in this case, that the person is actually not disabled when their primary caregivers have the opposite opinion.”
Changing role for historian
The worker was a historian at the Canadian War Museum in Ottawa. When she was hired in 2016, the worker explained that she had a young family and she needed time off each summer. She was assured that it wouldn’t be a problem, although parental leave requests under the collective agreement had to be separated by at least 12 months.
In late 2017, the museum hosted a photo exhibition from Middle East photographers. The museum received two complaints about the wording used in the exhibit, so management asked the worker to contact the curator at the originating museum to request that the text in question be removed. However, this angered the curator, leaving the worker humiliated.
In February 2018, the director-general left and the worker was told that she had nothing to worry about. This made the worker nervous as to why she was being singled out, as some saw her as the “star hire” of the departed director-general. This feeling continued when the museum assigned another historian to a project with which the worker had been involved.
In the spring of 2018, the worker was to give a keynote lecture at Oxford University in the U.K. discussing the museum’s art collection. Several months earlier, she had understood that the museum would fund the trip. However, she was told on March 10 that her trip would not be covered because of budget cuts. The worker presented virtually without the museum’s assistance.
Over the next little while, the museum assigned another historian to a project she had been working on, she was denied funding to attend a documentary film festival in Toronto that she had attended in previous years, her performance evaluation scores from previous years were lowered due to stricter standards, and her request for parental leave for the summer of 2018 was denied due to the collective agreement restriction.
Medical leave
In April, the worker began experiencing panic attacks, chest pains, anxiety, and crying spells at work. Her doctor placed her on medical leave.
The museum had concerns about the validity of the medical leave, since the doctor’s note didn’t provide much information and it coincided with the worker’s parental leave request, so it sent her a physician’s statement to assess entitlement to short-term disability benefits.
The worker’s doctor sent another note confirming that the medical leave was justified and the physician’s statement to the benefits provider, Sun Life, diagnosing “adjustment disorder with anxiety and depressed mood.”
The museum continued to request updates supporting the worker’s leave. Sultan says it was a good idea to stay in contact while the worker was away.
“I don't think it was there was any deficiency in the communication, and that's where a lot of employers tend to be deemed as not having fulfilled their duty to accommodate,” he says. “When employees are off for prolonged periods of time, they almost, in a sense, become forgotten.”
Read more: Employers shouldn’t rely on third-party insurers to maintain contact with and determine accommodation for employees on medical leave.
The worker started seeing a psychologist and her doctor extended her leave until Jan. 1, 2019, and she field an LTD claim.
Sun Life informed the worker and the museum that it had not received any medical information for her LTD claim – the claim was late because it had initially sent information to the wrong address – so it denied her claim for insufficient medical evidence that would preclude her from working in her own occupation.
The museum wrote to the worker stating that she was expected to return to work on Dec. 5 and her psychologist provided a letter stating that it was impossible for her to work at that time.
Independent medical assessment
The worker appealed the LTD denial and the museum eventually decided to solicit an independent medical assessment (IME).
The independent assessor reviewed the medical information and determined that the worker didn’t demonstrate any “object medical reason” why she couldn’t return to work. The assessor found that the worker’s problems were an HR issue, not a medical one. However, the worker’s doctor extended her medical leave to March 25 with a graduated return-to-work plan starting on that date.
On Feb. 28, Sun Life denied the worker’s LTD appeal. Armed with the independent assessment and the LTD rejection, the museum told the worker to return to work on March 7 or face discharge. The worker said she would return on March 25 as recommended by her doctor, but the museum terminated her employment on March 7.
The worker and the union grieved the termination, arguing that she was off work for legitimate medical reasons.
The arbitrator found that after the director-general who hired her left, the worker began to obsess about her role. However, the decisions to reassign her were administrative, with no evidence that management was targeting her.
On the other hand, arbitrator found that the decision to pull funding from her trips to the U.K. and the documentary festival were each an "about-face” that made the worker feel unsupported.
The arbitrator noted that the museum had the right to deny the worker parental leave under the collective agreement and to downgrade her performance evaluation scores as part of a restructuring of the program. However, it didn’t communicate these well and added to the worker’s anxiety, which by the time she went off work, was taking a toll on her.
The arbitrator also noted that Sun Life didn’t give any advice other than its adjudication of her LTD claim. Despite this, the museum relied on the claim denial to support its termination decision.
LTD, accommodation not the same
The arbitrator found that there was a difference between determining the viability of the LTD claim and the worker’s medical leave. The former was based on whether the worker was able to perform her job duties, while the latter related to whether she was medically fit to return to work.
Neither the independent assessor nor Sun Life considered whether the worker was mentally capable of returning to work and the museum made a mistake by not performing its own analysis, said the arbitrator.
“They received the third-party medical opinion and they acted pretty briskly on that,” says Sultan.
The arbitrator also found that the opinions of the worker’s own medical team should have been given more weight than the independent assessor. This was especially important for mental illness, where the subjective reporting of symptoms was “an inescapable part of diagnosing mental health disorders,” the arbitrator said.
The arbitrator determined that the medical information from the worker’s medical team indicated she was unfit to work. In addition, there was no evidence that the museum would suffer any undue hardship if the worker was allowed to remain off work – particularly since the medical information indicated that she would be able to return less than three weeks after her termination.
Read more: Terminating an employee on a disability leave is dangerous, even when there’s a legitimate reason to do it, says an employment lawyer.
“They shouldn't have relied so much on the opinion of the of the insurance company, because the insurance company didn't provide enough details to determine whether or not the employee effectively was disabled,” says Sultan.
“Whether or not the disability provider approves the disability coverage, that is not conclusive as to whether or not an employer needs to accommodate that employee.”
“The assessment as to whether an employee is entitled to LTD payments is often a different analysis, as opposed to whether the employer needs to accommodate the individual.”
The arbitrator added that the worker’s decision not to return was made in the best interest of her health and was not intended to be insubordinate.
The arbitrator determined that the worker’s termination was unjust under the Canadian Human Rights Act and the collective agreement. The museum was ordered to reinstate the worker and compensate her for lost wages earned after she would have returned to work.
See Canadian Museum of History and PIPSC (Stober), Re, 2022 CarswellNat 1379.
