IN THE MATTER OF AN ARBITRATION

BETWEEN

ONTARIO NORTHLAND RAILWAY

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 103

(the "Union")

RE GRIEVANCE 2228: DENTAL CLAIM OF R. SINGLETON

Sole Arbitrator: Michel G. Picher

Appearing For The Company:

M. J. Restoule – Manager, Labour Relations, North Bay

Tom Burton – Chief Mechanical Officer, North Bay

Ken Duquette – Area Supervisor

Appearing For The Union:

Brian Stevens – Local President, North Bay

Brian Kelly – Chief Steward

Tom McParland – Committee Person

A hearing in this matter was held in Toronto on May 25, 2000

AWARD

The Union alleges that the Company has failed to properly apply the terms of the Employee Benefit Plan, contained in the supplemental agreement which is incorporated into the collective agreement. The Joint Statement of Fact and Issue, filed at the hearing, reads as follows:

JOINT STATEMENT OF FACT AND ISSUE:

Aetna refused to cover costs of composite fillings as provided for in Wage Agreement #12 and Employee Benefit Plan as negotiated by the Union.

The Union requested that the Company (Aetna) pay the cost of composite fillings to employee Robert singleton and on all future dental procedures.

The Company maintains that the insurance company properly administered the claim in accordance with the policy. The grievance was denied.

The facts relating to the grievance are not in dispute. Employee Robert Singleton received dental treatment on April 11, 2000. On that occasion composite fillings were inserted into two of his back teeth, referred to on the dental chart as teeth thirty-six and thirty-seven, generally referred to as molar teeth.

Mr. Singleton’s insurance claim for the work in question, which cost $310.00, was only partially paid by Aetna Insurance (now Maritime Life) the administrator of the plan. The insurer paid the grievor $191.56, and excluded the balance of $118.44. The explanation for the deduction appearing on the insurance company’s communication to the grievor is as follows:

– Your plan covers the cost of metal fillings on molar teeth. The additional cost of white fillings is your responsibility.

– Your benefits has been calculated according to the dental fee guide specified by your plan.

The Union asserts that the interpretation so rendered by the insurer is contrary to the terms of the Employee Benefit Plan, a plan for which the Company is admittedly responsible. The plan reads, in part, as follows:

The parties hereto agree that the company shall provide a Benefit Plan governing life insurance, weekly indemnity benefits, long term disability, maternity leave benefits, extended health care benefits, dental care benefits and vision care benefits as follows:

1. An eligible employee shall be entitled to:

…

(f) Dental Care Benefits, details of which are contained in Appendix “F”.

Appendix F further provides, in part, the following:

The Dental Care Plan provides for coverage of 100% of the expense for routine dental care and 50% of expenses for major dental care subject to a calendar year deductible of $35.00 per person, but not more than $35.00 per family to a maximum annual benefit of $1,000 per person. Eligible employees and their dependants will be covered for expenses as follows:

Routine Care

Charges up to the maximum benefit for:

…

– amalgam, silicate, acrylic and composite fillings

The Union submits that the foregoing language is clear and unequivocal, and that the grievor was entitled to payment in full for the cost incurred in having composite fillings applied to his molar teeth.

The Company maintains that the Union’s position does not give effect to the full language of Appendix F. In particular it relies upon a provision entitled “Alternative Services”. That provision reads as follows:

Alternative Services

If alternative services may be performed for the treatment of a dental condition, the maximum amount payable will be the amount shown in the applicable suggested Fee Guide for the least expensive service or supply required to produce a professionally adequate result.

The interpretation of the Company, which conforms to the interpretation of the insurer’s claims representative, Ms. Wendy Schwartzel, is that the alternative services provision mandates that where different levels of service and material can be obtained to treat a dental condition, the least expensive is provided for by the plan, provided that it yields a professionally adequate result. In other words, implicit in the position of the insurer and of the Company, is that while composite fillings, which are obviously more aesthetically pleasing, may be appropriate and professionally adequate for front teeth which are more visible, silver coloured amalgam fillings are entirely appropriate for back teeth which are less visible, and the use of amalgam fillings in that circumstance does produce “a professionally adequate result”.

The Union’s representative challenges that interpretation of the alternative services provision. He suggests that it would apply, for example, in the circumstance where the cleaning of teeth can be done by either a dental hygienist for a dentist. He argues that in that case the alternative services provision protects the insurer against paying unnecessarily high rates for services which might be reasonably available at a lesser rate. While the Arbitrator accepts that the Union’s interpretation, as it would apply to the cleaning of teeth, would be consistent with the language of the alternative services provision of Appendix F, I find it difficult to conclude that the concept of “services” or the phrase “service or supply” found within the provision are necessarily limited to that type of situation. It is generally acknowledged that various forms of dental service can be purchased to treat a given dental condition, some of which may be more costly than others. Crowns, for example, may be available in different materials and at different costs. In dentistry different forms of service or technique may be utilized to accomplish a given end, some of which may be more expensive than others, where all of the alternatives nevertheless produce what may fairly be characterized as “a professionally adequate result.”

It is in the foregoing context that the language of the “routine care” section of Appendix F must, in my view, be interpreted. While it is true that the language of that section refers to four different kinds of fillings, including composite fillings, it does not, in my view, stand as an independent entitlement that is accorded in disregard of the alternative services provision. It is clear from the language of the alternative services paragraph that it is intended to be of general application. In the result, when the routine care provision concerning fillings is read together with the alternative services paragraph, it becomes evident that Appendix F, the language of which was mutually negotiated by the parties themselves, does allow for the coverage of fillings at the lower rate of expense where the less expensive service or supply is nevertheless professionally adequate.

The issue then becomes, in the context of the instant grievance, whether the payment at the rate for amalgam fillings is professionally adequate and appropriate as applied to rear or molar teeth. In the circumstances I find it difficult to conclude otherwise than in favour of the interpretation adopted by the Company. It is, I think, appropriate for this board to take arbitral notice of the fact that amalgam fillings are common in the treatment of back teeth. While it appears that there has been some public discussion of the merits and demerits of using amalgam, the Arbitrator would be loathe to conclude that recourse to amalgam fillings is other than professionally adequate and in accordance with current Canadian norms absent evidence to that effect. No such evidence was adduced by the Union.

In the result the Arbitrator is compelled to conclude that the interpretation of the Company is correct, and that the handling of Mr. Singleton’s dental claim by the insurer was in accordance with Appendix F of the Employee Benefit Plan Supplemental Agreement. The grievance must therefore be dismissed.

Dated at Toronto, May 30, 2000

_________________________________________

MICHEL G. PICHER

ARBITRATOR