SHP - 59
IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian Pacific Limited
(the "Company")

AND

DIVISION NO. 4, RAILWAY EMPLOYEES DEPARTMENT - AFL/CIO
(the "Union")
RE: CLAIM OF R. KOSLOSKI FOR WEEKLY INDEMNITY BENEFITS

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

J.W. Asprey

A. Manocchio

 

APPEARING FOR THE COMPANY:

J.A. McGuire

N.M. Yorston

 

 

A hearing in this matter was held in Montreal on May 2, 1979.

 
AWARD OF THE ARBITRATOR

The matter in issue is the eligibility of M. R. Kosloski for Weekly Indemnity (Sickness) benefits. The facts are set out in an agreed statement as follows:

STATEMENT OF FACTS

Mr. Kosloski, a machinist apprentice at Weston Shops slipped on a patch of ice in the work area on January 16, 1976 and injured his back. He was paid benefits by the Manitoba Workers' Compensation Board until April 13 and extended to April 16, 1976, upon appeal this extension was again extended to May 14, 1976. Subsequently Mr. Kosloski made a claim, dated July 15, 1976, for sickness benefits from SunLife under the Benefit Plan. Sun Life denied the claim on the basis that the disability was due to a work related accident which is not covered by the policy.

The Company agrees with the SunLife interpretation of the policy and does not believe it should recommend that payment should be made on an ex gratia basis in this case.
* * * * *

The grievor, it appears, did return to work on May 24, 1976. The condition which had kept him off work was a "chronic sacroiliac strain associated with his accident in January of 1976", as his doctor reported. When he returned to work on May 24, the grievor had seen his doctor on May 14, and had been advised that "if he was unable to carry out his work he should report back to Dr. Kobrinsky", another specialist who had been caring for him.

The grievor, after returning to work on May 24, was unable to continue, and was off work from May 29 until November 1, 1976, under a doctor's care. Dr. Kobrinsky's certificate indicates that the grievor was off work from January 22, 1976 to November 1, 1976 "because of lumbo-sacral sprain". A further certificate of Dr. Kobrinsky's lists the occasions from January 22, 1976 to January 6, 1977, when the grievor was seen "regarding his backache", including occasions when Dr. Riddell saw the grievor and occasions when he attended physiotherapy. The certificate notes that the grievor "was seen on all these occasions because of pain in his right iliac joint".

The grievor received Workmen's Compensation benefits in respect of the disability caused by the accident on January 16. That disability was the one treated by Dr. Riddell, Dr. Kobrinsky and others, and referred to in the certificates and other correspondence. From all of the material before me, the only reasonable conclusion to be drawn is that, one and the same disability – described from time to time in somewhat different ways – was involved at all times material to this grievance. Certainly there is no specification of any other cause for the grievor's absence from work during the period for which he claims.

The grievor's workmen's compensation benefits were terminated, as the Statement of Fact notes, on May 14, 1976, having been extended for a period of time. In fact this extension was not granted until October 8, 1976, following the report, on October 1, 1976, of an independent Medical Panel established by the Workers Compensation Board of Manitoba and convened under the, auspices of the Manitoba Medical Association. The Medical Panel reported as follows:

It is the unanimous opinion of the Medical Panel that Mr. Kosloski's present complaints are not related to his accident of January, 1976. However, it is felt that his date of disability extended to May 14, 1976, when he was seen by Dr. Riddell and was recommended to return to work. There is no specification as to what the grievor's "present complaints" might be. The certificate of Dr. Kobrinsky, as has been noted, is to the effect that the grievor did suffer throughout 1976 as a result of his accident in January of that year. Perhaps what the Medical Panel meant to say was that his condition at the time he was examined no longer justified his absence from work; I do not however, seek to interpret their report beyond the point necessary for the purposes of this decision. In any event, in his claim for group weekly indemnity benefits – that is, the claim in issue here – made on July 15, 1976, the grievor seeks weekly indemnity for losses due to his absence from work due to an injury sustained when he slipped on a patch of ice in January 1976. He notes what was then the continuing claim for workmen's compensation. The attending physician's statement, dated July 15, 1976 and signed by Dr. Kobrinsky diagnoses a "sacroiliac type strain" which had disabled the grievor since January, 1976. In a subsequent statement, dated November 25, 1976, Dr. Kobrinsky refers to a "lumbo sacral strain" which, again, had disabled the grievor since January, 1976.

From all of the foregoing there can be no real doubt that the disability for which the grievor seeks weekly indemnity is the same disability for which he sought and received workmen's compensation benefits. It should be said at once that there is nothing inherently improper in such a claim: the period for which the grievor seeks weekly indemnity is a period following that for which workmen's compensation was paid, but while the grievor was absent from work, under a doctor's care, and in respect of which doctors' certificates (whose validity is not in issue here) have been issued.

The Weekly Indemnity (Sick Pay) benefit is one which, as described in the employee benefit plan booklet, is payable for periods during which an employee is unable to work "because of non-occupational accident, injury or illness". As is set out more formally in the Supplemental Agreement between these (and other) parties relating to the Employee Benefit Plan, that Plan covers "the benefits and the terms and conditions relating thereto ... which ... appear in contracts negotiated from time to time with the underwriters, pursuant to this Agreement". That is the benefit plan contemplates the provision of insurance. Such insurance has been provided and, insofar as it is material to this case, is set out and its terms and conditions described in a policy issued by the Sun Life Assurance Company of Canada. That policy is a group accident and sickness policy, providing for weekly indemnity benefits. The last paragraph of the weekly indemnity benefit provision of the contract sets out certain limitations, as follows:

Limitations Payments will not be made under the Provision

1) for any period of disability during which the employee is not under the care of a license physician or surgeon; not

2) for any period for which indemnity or compensation is payable under Workmen's Compensation legislation, unless such indemnity or compensation is payable in respect of a previously incurred partial disability which permits continuation of employment by the employee; nor

3) for that portion of any period of disability during which the employee is in receipt directly or indirectly from, any of these; nor

4) in respect of pregnancy, childbirth, miscarriage or conditions which result directly or indirectly for any of these; nor

5) in respect of disability directly or indirectly due to or resulting from any of the following:

a) bodily injury sustained while doing any act or thing for wage or profit other than on behalf of an Employing Railway,

b) any cause for which indemnity or compensation is payable under Workmen's Compensation legislation ...

c) intentionally self-inflicted injury while sane or insane,

d) war, insurrection or the hostile action of the armed forces of any country, or participation in any riot or civil commotion.

 These limitations would appear to be generally consistent with the requirement of the Employee Benefit Plan Supplemental Agreement that payment be provided for an employee "who is unable to perform his duties by reason of non-occupational accident or illness". It should be noted that limitation (2) set out in the policy of insurance would not seem to apply, since the grievor does not claim in respect of a period for which workmen's compensation is payable (although the grievor sought such compensation in respect of at least part of the period). Limitation 5 (b) does, however, apply. From all of the material before me, the only reasonable conclusion, as I have noted, must be that the grievor's disability was due, directly or indirectly, to a cause for which indemnity or compensation was payable under Workmen's Compensation legislation. Indeed, such compensation was in fact paid. The disability, due to the same cause; continued even after it was determined that such benefits were no longer payable. It remains that the disability was not due to a "non-occupational" accident or illness, and was not one for which benefits were payable under the insurance policy.

The resulting situation may appear anomalous in some respects: the grievor had a prolonged period of disability, attested to by various doctors' certificates. The overall intent of the benefit plan, in respect of illness and accident appears to be, bearing in mind the existence of Workmen's Compensation legislation, to provide a measure of income protection for employees who, in general terms, are unable to work due to illness or accident. In most cases (leaving aside certain special situations having no application or significance for this case), a disability will be either occupational – and thus covered by workmen's compensation – or non-occupational, – and thus covered by the insurance policy. Here, the grievor's disability was, as I have found, "occupational" in origin (and I have indicated that I do not consider this view to be contradictory of the report of the Medical Panel). It did indeed, involve the payment of workmen's compensation benefits. Those benefits were terminated by the Workers' Compensation Board, apparently on medical grounds. The propriety of that action is not in issue before me. The grievor (except for a brief period) continued to be absent, and under a doctor's care. The propriety of that absence has not been put in issue either. The mere fact that workmen's compensation payments had ceased, however, did not mean that the disability had changed in nature. It was still of "occupational" origin, and was due to a cause for which compensation was payable under Workmen's Compensation legislation. It was not a disability for which benefits were payable under the insurance policy, and so not one for which the Administrative Committee would be expected to recommend payment. Whether, in view of the particular circumstances an ex gratia payment should be recommended is not, of cause, a matter within my jurisdiction.

In conclusion, it is possible to speculate that the Medical Panel erred when (in effect) they refused to continue workmen's compensation payments to the grievor; perhaps, again, the grievor's doctors erred in certifying to his disability after play of 1976. In the one case, the grievor would have been entitled to compensation payments; in the other, he ought to have returned to work. While there may be some inconsistency in the doctors' certificates, this is not necessarily the case: they may all be correct, and the situation may simply be, as it appears, that the grievor was absent from work because of a non-compensable but occupational disability. Whatever may be speculated, it remains that his was not a disability of the sort covered by the insurance policy and contemplated by the Employee Benefit Plan.

For the foregoing reasons, the claim must be dismissed.

DATED AT TORONTO, this 22nd day of May, 1979.

(signed) J.F.W. Weatherill
Arbitrator