Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS March 14, 2016 Columbia Government and Ser- vice Employees' Union (BCGEU). According to the union, the placement process was flawed. As a result, deLaronde lost $16,000 in income and should be compensat- ed, BCGEU said. The union also said the province failed to give him complete and correct informa- tion and mistakenly restricted the search for vacancies to Nanaimo, when it was clear he was willing to relocate within Central and South Vancouver Island. "DeLaronde is a careful and thoughtful individual who weight- ed each decision against the im- pact on him and his family," the union said, adding that deLaronde was willing to relocate almost any- where, but had preferences. "Because he had a long connec- tion with the Nanaimo commu- nity and preferred to stay in Na- naimo, rather than accept another position, which he was under pres- sure to do, he chose to wait and see without ruling out the possibili- ties," the union said. The employer, however, said deLaronde limited his actions and decisions by declining a position outside of Nanaimo when there was no other offer on table. In or- der for the collective agreement to have been breached, there must have been a flaw in the process — but the province said there was non and in fact there was no suit- able position for which he was not considered. Arbitrator James Dorsey agreed with the province and that the pro- cess was not flawed. "DeLaronde's juggling wait- and-see approach to get the best offer while he beat the bushes for a vacancy closer to home resulted in him being empty-handed. The union managed to extend the pro- cess when this gamble did not pay off," Dorsey said. Therefore, the grievance was dismissed. Reference: Government of British Columbia (Ministry of Environment) and the British Columbia Government and Service Employees' Union (BCGEU). James Dorsey — arbitrator. Megan Ashbury for the union, Stephanie Vellins for the employer. Feb. 18, 2016. Nurse denied long-term disability benefits after fall 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 contin- ued in both of her feet so, in the following days, Waugh returned to the emergency department several times. Diagnoses of strained liga- ments and later of Reflex Sym- pathetic Dystrophy Syndrome (RSD) followed and Waugh's doc- tor recommended physiotherapy. Waugh provided her employer with a doctor's note excusing her from work until Jan. 10, 2012, and discussions began about return- ing 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 accommo- date 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 con- ventional bedside nursing. In May 2012, Waugh was as- signed to desk duties and admin- istrative project work. But even with severely limited duties, Waugh struggled to attend work. In June 2012, the hospital concluded there was no modi- fied work plan that would allow Waugh to return to work and the attempts were abandoned. Waugh's doctors reported she was diligent about her physio- therapy in this time, trying every- thing from strength and stretch exercises to acupuncture. Eventually, it was determined the therapies were not resolving Waugh's pain but rather aggravat- ing it, and further limiting her. Her doctor ended Waugh's ses- sions 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 func- tional capacity evaluation, which concluded she did not have the physical capacity to perform her duties. With the evaluation, the union appealed Desjardins' rejec- tion 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 prac- tices and, along with evidence from Waugh's doctors, proved she was physically unable to per- form her duties as a result of her chronic pain. The employer, however, argued the carrier believed the function- al capacity evaluation featured several shortcomings. Further- more, the carrier took issue with the fact that no organic basis — in other words, no concrete diagno- sis — had been found that could explain Waugh's pain and physi- cal limitations. Arbitrator sides with employer Arbitrator Dana Randall, how- ever, found the evidence provided by Waugh's doctors, along with the results of the functional ca- pacity 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 in- ability to perform her duties. Furthermore, Randall found that the numerous pain medi- cations 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 disabil- ity 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. < Arbitration pg. 1 Chronic pain prevented employee from performing her duties as a psychiatric nurse.

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