IN THE MATTER OF AN ARBITRATION
BETWEEN
ST. LAWRENCE & HUDSON RAILWAY COMPANY
AND
National Automobile, Aerospace, Transportation and General Workers Union of Canada [CAW-CANADA]
RE: GRIEVANCE OF F. AZZOUG
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE UNION:
A. Rosner – National Representative, Montreal
S. Levert –Vice-Président Régional, Montréal
APPEARING FOR THE COMPANY:
A. deMontigny – Labour Relations Officer, Montreal
G. St-Pierre – Human Resources Coordinator, Montreal
A hearing in this matter was held in Montreal on Monday, 10 November 1997.
AWARD OF THE ARBITRATOR
The Union grieves on behalf of employee F. Azzoug that he was wrongfully denied weekly indemnity benefits under the Sun Life policy referred to in article 51 of the collective agreement.
The facts are not in dispute. In July of 1988 the grievor took a vacation, returning to Algeria for a scheduled three week period. It appears that while in Algeria he became ill, suffering depression, as a result of which he found himself unable to return to work as scheduled. There is no dispute that he kept the Company apprised of his condition at all material times. Further, upon his first attempt to return to Canada he suffered an aggravation of his condition while in Paris, at which time a Paris physician issued a very brief medical certificate indicating that he was not fit to work, or to travel.
Mr. Azzoug’s request to receive weekly indemnity benefits under the Sun Life policy, a benefit in fact paid for by the Company but administered by the insurance carrier, was rejected. The position of Sun Life is that the grievor failed to provide medical documentation sufficient to prove that he was fully disabled from performing the duties of his job at the material times.
While it appears that Mr. Azzoug did file a series of attending physician’s statements to the carrier, filled out by his physician in Algeria as well as by his physician in Paris, the insurance company took the view that the information provided within those forms was insufficient to prove the degree of disability required by the plan. For example, by letter dated January 24, 1989 Supervisor Nicole Sauvé indicated that on the basis of the information received and the opinion of the insurer’s medical advisors, the grievor’s request for indemnity payments is not justified, to the extent that it does not establish a full disability, as defined under the terms of the disability and life insurance plan agreement.
The first position of the Company is that the Arbitrator is without jurisdiction to interpret the insurance plan. It is unnecessary for the Arbitrator to decide that issue, given my view of the merits of the interpretation which would result, should I indeed have such jurisdiction. To put it simply, if, as the Union contends, I do have such jurisdiction, I cannot find that there has been a violation of the plan in the circumstances disclosed. The plan provides as follows with respect to disability benefits:
Section 3 – Disability Benefits
3.1
On receipt by the Service Organization of proof as herein required that an Eligible Employee has become wholly and continuously disabled from bodily injury or from sickness or disease so as to be prevented from performing the duties of his occupation or employment, a benefit will be paid to such Eligible Employee equal to one-seventh of the Amount of Disability Benefits to which the Eligible Employee was entitled on the date he became so disabled for each day that he continues to be so disabled and does not engage in any occupation or employment for wage or profit, subject to the limitations set out in Section 6 hereof. Such benefit will commence:(a) with the first (1st) such day if disability is due to bodily injury effected directly and independently of all other causes through accidental means;
(b) with the fourth (4th) such day if the disability is due to sickness or disease;
(c) with the first (1st) such day if the Eligible Employee is confined to hospital at any time during one period of disability; and
(d) with the fifteenth (15th) day for the second and subsequent programs for rehabilitation from alcohol and/or drug abuse.
Benefits will continue for not more than the Maximum Indemnity Period set out in Section 2.6 hereof during any one period of disability whether disability is due to one or more causes. Benefit payments will be made weekly.
Section 7 – Claims
7.1 An Eligible Employee shall be responsible for the completion of the claim forms and shall furnish proof of disability as shall be deemed necessary and appropriate by the Service Organization.
7.2 Written proof of claim must be furnished to the Service Organization within 30 days after the date of the accident causing the injury or the date of commencement of the disability from sickness or disease and subsequent proofs of claim as the Service Organization may require at intervals not more often than weekly. Failure to furnish proof within the time specified will not invalidate the claim if it is shown that it was not reasonably possible to furnish proof within such time and that proof was furnished as soon as reasonably possible.
7.3 Any proof of claim involving medical evidence in respect of an Eligible Employee shall be furnished without expense to the Service Organization and shall be signed by the Doctor personally attending the Eligible Employee. The Service Organization will have the right, at its own expense, to have Doctors designated by it examine any person in respect of whom a claim is being made when and as often as it may reasonably require.
(emphasis added)
It is apparent from the correspondence in the file that the insurer considers that a claimant must provide more than a cryptic note from a physician as proof of his or her disability for the purposes of establishing entitlement to benefits. As reflected in a letter from Sun Life dated September 22, 1988, the grievor was required to bring forward a detailed statement on the part of the physician who treated him. Regrettably, both the doctor who treated Mr. Azzoug in Algeria, and the physician who treated him in Paris, failed to provide the kind of detailed documentation which would allow the insurer to make an informed determination as to his physical condition, and whether he was indeed fully disabled from performing the functions of his job at the time in question. In other words, the grievor did not comply with his obligation under the terms of the insurance plan.
Nor can the Arbitrator conclude that a subsequent diagnosis of Mr. Azzoug, obtained from a physician in Canada, satisfies the requirement of adequate proof with respect to his condition at the earlier time of his actual illness. In the result, while it may well be that the grievor did suffer depression to a degree that prevented his both working or travelling, he has failed to obtain the documentation required, in my view reasonably, by the insurer to establish the conditions for the payment of the indemnity benefits which he claims.
For these reasons, even assuming that the Arbitrator does have jurisdiction to interpret and apply the terms of the Sun Life Disability and Life Insurance Plan agreement, the conclusion to be drawn, on the balance of probabilities, is that the grievor did fail to satisfy the conditions of that document. In the result, assuming that the document is to be taken as incorporated by reference into the collective agreement, no violation of the terms of the collective agreement is disclosed in the case at hand. For the foregoing reasons the grievance must be dismissed.
Dated at Toronto this 24th day of November 1997
(signed) MICHEL G. PICHER
ARBITRATOR