IN THE MATTER OF AN ARBITRATION

BETWEEN

The City of Toronto

(the “City”)

-and-

Toronto Civic Employees’ Union, Local 79

(the “Union”)

Grievance of Peter Mitchell

Grievance No. 12-10-0487 (Denial of LTD Benefits)

Sole Arbitrator Christine Schmidt

Appearances

For the Union: Micheil Russell, Counsel Charles Varvliet, National Representative Peter Mitchell, Grievor

For the Employer: Kerri Kitchura, Counsel Toni Iscaro, Financial Analyst, Payroll & Employee Benefits Division; Benefits & Employee Services Section Una Codrington, Supervisor, City Clerk’s Office; Council & Support Services Vera Belcastro, Senior Human Resources Consultant; Employee & Labour Relations

This hearing was held at Toronto on May 5, September 9, 15, 17 and 24, 2014.

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AWARD

Introduction

1. This case concerns a grievance filed by the Union on behalf of Mr. Peter Mitchell

(the “grievor”) alleging that the denial of his claim for LTD benefits was a violation of the

collective agreement.

2. The parties agree that the grievance is arbitrable and that I have jurisdiction to

determine the grievance.

3. The City is party to an Administrative Services Only contract with Manulife

Financial (“Manulife”), which administers the LTD plan. The City is responsible for the

payment of LTD benefits where eligibility is established by Manulife.

4. The issue before me whether the Union has satisfied its onus to establish that

the grievor is “totally disabled” as defined by the LTD plan. The definition of “total

disability” is as follows:

During the qualifying period and the succeeding 24 months an employee is totally disabled when he is wholly and continuously disabled due to illness or bodily injury and, as a result, is not physically or mentally fit to perform the essential duties of his normal occupation.

Thereafter, an employee is totally disabled provided he is wholly and continuously disabled due to illness or bodily injury and, as a result is not physically or mentally fit to perform the essential duties of:

1. his normal occupation: and

2. any other occupations, jobs or work:

(a) for which he is, or becomes, qualified by his education or training or experience, considered collectively or separately: and

(b) for which the current monthly earnings are 75% or more of the current monthly earnings for the employee's normal occupation.

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The availability of such occupations, jobs or work will not be considered in assessing the employee's disability.

5. Normal occupation is defined in the Plan document as:

the regular occupation, job or work (apart from any temporary assignment) an employee was performing at the time he became totally disabled by the condition which prevented him from working and led to a claim being made under this plan.

6. In the case before me the grievor’s normal occupation was that of a council

receptionist. Council receptionists sit at one of three entrances to the secure parts of

City Hall. Their functions are primarily twofold. They greet visitors who come to meet

with City councillors or to attend meetings in the secure areas. Council receptionists’

second major function is a security one – they ensure that only people with proper

appointments actually go through to the secure area. To that end, they make sure that

people are properly logged in and out.

7. The grievor’s last day of work was December 15, 2011. The grievor had returned

to work that day after serving a 10-day suspension (subsequently reduced to a 3-day

suspension by an award of Arbitrator McLean issued July 22, 2014) in the

circumstances described below. After December 15, 2011 the grievor went off on a sick

leave of absence.

8. June 15, 2012 was the first day the grievor could claim eligibility for LTD benefits.

He filled out a claim on April 30, 2012. The grievor indicated in his claim that his

absence from work was due to the following workplace injury: “stress from being told to

go home.” Dr. Friesner, the grievor’s family physician since 1999, filled out an attending

physician’s statement on April 30, 2012. The primary diagnosis he attributed to the

grievor was “Occupational Stress” with additional diagnoses of “Depression/Anxiety

Neurosis.” The grievor’s symptoms included “depression, anxiety, insomnia, withdrawal,

difficulty cope [sic], frustration with workplace persistent, aggravated.”

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9. Manulife denied the claim on May 18, 2012. In response to the denial, the grievor

wrote Manulife on May 24, 2012. He indicated his disagreement with Manulife’s

decision and advised of his appeal “on grounds of harassment and bullying in the

workplace.” Dr. Friesner wrote a letter to Manulife in support of the grievor’s appeal

almost a year later, on April 2, 2013.

10. In the intervening period, Dr. Friesner referred the grievor to a number of

psychiatrists: Dr. Elizabeth Werry, Dr. Daniel Blumberger and Dr. Fredrick Kroft (“Dr.

Werry, Dr. Blumberger and Dr. Kroft”). During the LTD appeal process, on May 21,

2013, the grievor attended for an independent medical evaluation (“IME”), carried out by

Dr. Wendy Yui (“Dr.Yui”), also a psychiatrist.

The LTD Claim in Context

11. It is useful at this stage to set out some of the factual backdrop to the issue

before me. Arbitrator McLean heard four grievances filed on behalf of the grievor,

including the one against the grievor’s 10 day-suspension referenced above. The other

grievances included a harassment grievance filed on April 6, 2010, another grievance

concerning the grievor’s alleged “Failure to Report” for work on April 30, 2010, and a

grievance concerning a 3-day suspension, filed May 9, 2011.

12. Though the nature of the grievance before me is entirely different from those

adjudicated by Arbitrator McLean, it is nevertheless worth summarizing the findings of

the grievances he heard.

13. Concerning the “Failure to Report” grievance, the arbitrator’s view was that the

City could have imposed more serious discipline than it did. The arbitrator found that the

imposition of the discipline did not constitute harassment of the grievor as had been

suggested. In fact, the arbitrator found that in characterizing the grievor’s “no show” on

the date in question as a “Failure to Report” when he had been denied the day off, the

City had demonstrated that it was sympathetic to the grievor’s circumstances.

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14. The 3-day suspension that the City had issued to the grievor was for challenging

management’s decision to relocate his assignment from one of the entrances at City

Hall to another. The grievor had challenged the City’s decision by remaining at his desk.

The discipline was reduced by the arbitrator to a 1-day suspension.

15. As for the grievor’s harassment grievance, Arbitrator McLean found that no

harassment by the City had been made out despite the numerous circumstances that

the grievor had alleged constituted harassment. For example, the grievor alleged that

the City’s demand that the grievor sort mail was harassment. Arbitrator McLean

disagreed, finding that sorting mail had been part of the grievor’s job for a very long

time.

16. I will return to the circumstances of the imposition of the 10-day suspension

below.

The Evidence

17. The Union called two witnesses in support of its position that the grievor had met

the definition of “totally disabled” in both of what are commonly referred to as the “own

occupation” and the “any occupation” phases of entitlement to LTD benefits: the grievor

and Dr. Friesner.

18. The City called Dr. Yui, the psychiatrist who conducted the IME on May 21, 2013.

She was qualified as an expert at the hearing. The City also called Manulife’s Senior

Claims Consultant, Mr. Randy King (“Mr. King”), who went through the chronology of the

process by which the grievor’s claim was initially adjudicated and ultimately denied on

appeal.

19. The City hired the grievor in 1985. In 1988, he suffered an injury while working in

the sanitation department. The grievor worked as a chauffeur between 1990 and 2000.

When the City amalgamated he worked very briefly in traffic dispatch, then as a light

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duty cleaner before landing a council receptionist position, which he has held since

2002.

20. The circumstances surrounding the grievor going off work and ultimately

submitting an LTD claim are as follows.

21. Prior to being assessed with the 10-day suspension, the grievor’s immediate

supervisor, Ms. Codrington had discussed with him the expectation that he sort mail as

part of his duties. On November 21, 2011, responding to a complaint that the grievor

was not carrying out this duty, Ms. Codrington spoke with the grievor. The grievor’s

response was that sorting mail was not part of his job. Despite Ms. Codrington’s

express direction to the grievor that he place mail in the appropriate mail slots he

refused to do so. Accordingly, Ms. Codrington scheduled the grievor to attend at an

investigative meeting the following day.

22. Prior to the investigation meeting on November 22, 2011, at an all staff meeting

in the presence of colleagues and management, the grievor complained about the way

he was being treated. He was told by a management representative to address any

personal concerns he had with his manager.

23. The grievor then attended the investigative meeting. The grievor did not provide

a reason when asked why he was not sorting the mail.

24. On November 23, 2011, Ms. Codrington reminded the grievor of his obligation to

sort the mail. He remained intransigent in his view was that it was not his job. He

refused to sort the mail and he was directed to go home. The grievor was unwilling to

leave without his supervisor producing something in writing setting out the authority by

which he could leave. The grievor complied with his supervisor’s directive to leave the

workplace only once she sought security’s assistance to remove him. In the end, the

grievor went home on suspension with pay pending an investigation into his

insubordinate conduct.

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25. With a 3-day suspension on already on the grievor’s disciplinary record (but not

yet reduced by the arbitrator to a 1-day suspension), the City imposed a 10-day

suspension for insubordination. The grievor returned to work on December 15, 2011,

after serving his 10-day suspension.

26. At the hearing, the grievor testified that upon his return to work he felt

uncomfortable and very stressed. He explained that he had been embarrassed and

humiliated by the incident on November 23, 2011. He maintained that it was not his job

to sort the mail. As a result of his continuing discomfiture over the incident that led to his

suspension, he left the workplace on the same day that he returned from the

suspension.

27. The grievor testified that when he went to see Dr. Friesner the following day, he

told him that he should take some time off work. The grievor added that it was not the

first time that he had gone to Dr. Friesner with concerns about his mistreatment in the

workplace.

28. On April 30, 2012, the grievor filled out the Manulife LTD claim form. The

symptoms the grievor reported in his claim were: “stress, low self esteem, humiliation,

confused, not eating and sleeping properly.”

29. At the hearing, counsel for the Union sought to elicit from the grievor how the

symptoms he had reported in his claim prevented him from working. The grievor

essentially responded by repeating the reported symptoms. He also said that when he

is stressed he cannot focus properly, that his low self esteem was due to feeling

humiliated, and that he was emotionally drained from harassment at work.

30. Though counsel for the Union probed the grievor several times about his

symptoms and how they prevented him from working, the grievor did not answer directly

or had difficulty linking how his symptoms affected his ability to perform his job. The

grievor’s tendency throughout his testimony was to express concerns relating to what

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he perceived to be the expectations of his job and his perceived harassment at work.

He failed to explain how his symptoms prevented him from carrying out the essential

duties of a council receptionist.

31. At the hearing the grievor testified that the following account provided to Manulife

on May 16, 2012, accurately represented his typical day following his departure from the

workplace on December 15, 2011:

He said that he usually goes to bed between 1 and 3 am and stated the following: “I don’t sleep or eat properly, claimant said that he wakes up throughout the night and is usually up an hour and a half after going to sleep. He said that he was half an hour late for his doctor’s appt today because he could not get moving. Asked claimant what he does during day if he does not have doctors’ appts and he said that he stays at home and exercise or goes for walks.

Asked claimant if he had any other questions for CM and he said, “this has been going on for years, enough is enough.”

32. When asked about his mood by Dr. Yui, in May 2013, the grievor confirmed that

he reported to her the following:

“I feel I wish I was working so I wouldn’t have all these problems and I wouldn’t be constantly thinking of these problems. I feel sad, I feel depressed, I feel lonely, I feel secluded.” He sometimes feels he’s burdening his friends with his issues. He remains hopeful that there will be a resolution to his situation. He does not feel any guilt or shame about himself. He firmly believes that he is in the right and that he has ample documentation to support his position. He believes his mood has worsened since he’s left work. He would return to work Monday if he could, except he is prevented from doing so by the Union.

33. In the course of his testimony, the grievor initially denied that any of the

physicians had recommended that he return to work. In cross-examination, however, he

acknowledged that Dr. Yui had told him he would recover more quickly if he went back

to work. At the hearing the grievor confirmed that since leaving work he has always

been anxious to return, and he agreed his mental state was such that he was able to

return to work as of May 21, 2013. According to Dr. Friesen’s testimony, the grievor had

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told him that he had always been able to return to work but that management was

mistreating him at work.

34. The grievor also testified that his symptoms (referenced in Dr. Yui’s report) - his

mood, anxiety, energy, sleep, appetite and his enthusiasm for his usual daily activities,

as well as his memory and concentration, had progressively deteriorated the longer he

stayed off work.

35. Dr. Friesner testified after the grievor. He has no training in psychiatry, nor does

he consult the Diagnostic and Statistical Manual of Psychiatric Disorders as part of his

practice. He did not conduct any psychiatric testing of the grievor. Of the approximately

800 patients he sees per month, at least half of them have “psychiatric type issues.” Dr.

Friesner monitors his patients while they wait for appointments with psychiatrists. He

prescribes psychiatric medication to his patients to address anxiety and depression as

do many family physicians.

36. In the grievor’s case, during the period at issue, Dr. Friesner prescribed to the

grievor Halcion (for sleep), Ativan as well as Cipralex (for depression).

37. Dr. Friesen articulated that he saw his role as one of reassurance to the grievor

and providing him advice.

38. Throughout Dr. Friesner’s testimony, he relied heavily on his clinical notes. At

times he had some difficulty deciphering them due to their general illegibility. He went

through them entry by entry between the end of November 2011 through to April 30,

2012, although they commence on August 11, 2011 at which time Halcion was

prescribed. The diagnoses identified by Dr. Friesner include “Occupational Stress,”

“depression” “anxiety neurosis” as well as other physical ailments. On the grievor’s

September 9, 2011 visit there is reference to “depression” and what I read to be a trial

of Imovane.

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39. Dr. Friesner agreed that the medications he had prescribed to treat the grievor

“did not work.”

40. The first psychiatrist Dr. Friesner referred the grievor to was Dr. Werry. She saw

him on February 27, 2012. The report generated from the grievor’s consultation with Dr.

Werry is the only extensive report before me other than Dr. Yui’s. It is generally

consistent with Dr. Yui’s report, which I review below.

41. Dr. Werry diagnosed the grievor with an adjustment disorder with depressed

mood. She did not think that the grievor suffered from major depressive disorder. Dr.

Werry opined that neither medications nor psychotherapy would be of assistance to the

grievor given his defensive personality style. Dr. Werry’s view was that unless the

grievor was motivated to look inward and consider changing the way he viewed his

workplace situation (and she recommended a book for him to read on the subject), it

would be difficult for even a psychiatrist to work with him. Dr. Werry thought that to be

resilient and well, both physically and emotionally, the grievor should continue to work.

42. At the hearing the grievor said he was unable to recall virtually anything Dr.

Werry told him except to say that he did not like what she had to say, and that she had

recommended that he read a book. When Dr. Friesen testified, he said that he was

aware of Dr. Werry’s view that that the grievor should be counselled to be more flexible

and tolerant of working conditions, but that that was not what the grievor wanted. Dr.

Friesen expressed that he did not want conflict with his patient by counselling him to

become more adaptable.

43. In the course of Dr. Friesen’s cross-examination, counsel to the City referred to

the opinion expressed in Dr. Werry’s report that it was important that the grievor’s

physicians not be seen to be rescuing the grievor from the consequences of

confrontation with his supervisors, inflexibility and inability to accept workplace change.

Counsel asked Dr. Friesen if he thought that Dr. Werry’s comment was directed at him.

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Dr. Friesen did not answer the question. He simply replied that he was not sending

people to Dr. Werry anymore because his patients were not happy with her.

44. At the grievor’s request, Dr. Friesner referred the grievor to another psychiatrist -

Dr. Blumberger at the Centre for Addiction and Mental Health (“CAMH”) for “an

assessment of depression.” The grievor saw Dr. Blumberger on April 25, 2012. The

report stemming from that assessment indicates that the grievor admitted to seeing a

psychiatrist (i.e., Dr. Werry) six weeks prior to going to CAMH, but that he could not

recall the outcome of the assessment.

45. The history of the grievor’s presenting illness set out in Dr. Blumberger’s report is

the grievor’s account of being “quite down and depressed since sustaining a gunshot

wound to his hand and arm in an accident while cleaning a gun.” Dr. Blumberger

diagnosed the grievor as having developed a “moderate to severe major depressive

episode with melancholic features after an injury she [sic] sustained.” Though the date

the grievor sustained a gunshot is not referenced in the report, it was in 2006. In cross-

examination, Dr. Friesner testified that, in his opinion, the gunshot wound contributed to

the grievor’s anxiety and depression.

46. Dr. Blumberger reported the grievor’s General Assessment of Functioning (GAF)

as 40-50. The clinical significance of such a score is that it is indicative of serious

impairment in social, occupational or school functioning or serious symptoms (eg.

suicidal ideation, severe obsessional rituals, frequent shoplifting). Dr. Blumberger

offered the grievor participation in a clinical drug trial. The grievor was not interested in

pursuing this and did not see Dr. Blumberger again.

47. Dr. Friesner next referred the grievor to Dr. Kroft, who had seen the grievor years

before. Dr. Kroft saw the grievor on five occasions between November 8, 2012 and

February 14, 2013 for medication follow up and psychotherapy.

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48. Dr. Kroft’s clinical notes of November 8, 2012 and very brief report of the same

date refer to the grievor feeling bullied and harassed in the work place. He put the

grievor’s GAF score at 50. There is a reference in the physician’s notes to racial

discrimination and an email. In all three of Dr. Kroft’s brief reports dated November 8,

2012, February 13, 2013 and March 6, 2013, it was his opinion that the grievor was

suffering from major depression disorder. He wrote that the grievor was anxious to

return to work or have some type of pension or early retirement. To this, the grievor

testified that he was always anxious to return to the workplace but denied telling Dr.

Kroft that an alternative to return to work would be a pension or early retirement. The

grievor repeated that it was management’s treatment of him that prevented him from

going back to work.

49. The next document I address from the Manulife file is Dr. Friesner’s letter to Mr.

King, the Senior Claims Consultant, dated April 2, 2013. It is reproduced below in its

entirety:

Dear Mr. King:

I am in receipt of your email dated February 8, 2013 and your letter dated February 26 2013.

Peter Mitchell has been my patient since June 30, 1999 and I found him to be responsible during our doctor - patient relationship.

I shall respond on Peter Mitchell's behalf in chronological order.

On December 16, 2011 Mr. Mitchell was seen in my office wherein he informed me he had been subjected to undue stress and harassment at work with “nigger overtones.” He complained of headaches, poor sleep, and inability to cope. He became increasingly depressed and required medication in the form of Cipralex and Halcion. He had described many examples of harassment at work. His frustration and anxiety in dealing with unreasonable situations at work created dizziness and forgetfulness where he would forget his keys, his wallet etc. He tried to forget the harassment at work and he responded with a global forgetfulness at times aggravated by poor sleep and coping abilities. At times he would forget to take his medication. He complained of chest pain, poor eating habits and generalized poor coping abilities. He described the employer as being very unreasonable and he met “road blocks” in dealing with them. He has not had any payments since shortly after being unable to work. Many times he would come into the office crying about his treatment from the workplace. As a result of his undue stress poor eating habits and poor sleep his resistance was reduced and he developed frequent infections.

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In May 2012 Peter had informed me that his claim to Manulife was denied. He appealed the claim in May; he received no acknowledgment of the appeal, nor had he been given the courtesy of a reply about his request for an appeal. Mr. King in your letter of February 26, 2013 you state, “He advised that he would also like to appeal our decision,” Even though Mr. Mitchell has documentation he had already appealed to Manulife and the appeal was not acknowledged. Mr. King why did Manulife not contact Peter when he appealed his claim?

Mr. Mitchell in his attempt to get some resolution to his medical problems and disability pay, he sent emails for assistance to the company and union. What he got was more harassment. One of the circulating emails was sent to him by error and he felt humiliated and again harassed by being referred to as the “happy guy.”

He brought the aforementioned email for my review at the office. This added example added to his frustration and depression dealing with the system. Mr. Mitchell had complained of being called a “nigger” and complained of discrimination in the workplace.

Mr. Mitchell had taken his case to the Ontario Labour Board. The Employer had asked for an extension for documentation submissions and Peter Mitchell granted the same. To add insult to injury, the Employer did not meet the deadline for the submissions. Yet the employer is postponing the date of the case before the Ontario Labour Board. Is this a new precedent for being able to submit written documentation after the deadline that has been set. Are some parties more equal than others?

Peter Mitchell was referred to Dr. Fredrick Kroft for treating his depression. Dr. Kroft had confirmed the diagnosis of “severe depression and the inability to work.” Peter was offered early retirement which may be seen as a reason for cancelling his case before the Ontario Labour Board. Dr. Kroft in trying to alleviate his depression suggested that Peter swallow his frustration and ill-treatment and take the offer. Peter’s high morals wanted justice and he refused the offer.

On March 14, 2013, Peter informed me that his drug benefits had come to a sudden halt. He went to the pharmacy with the prescription I had given him and he was informed by the pharmacist and not by the employer and not by Manulife that his benefit to come to an end. Again, Peter became increasingly depressed.

Mr. King, I would like to make a few comments of your email to my office at February, 2013. My secretary never informed you that the “office would be closed for 2 weeks commencing February 13.” I would suggest that you contact Drs. Werry and Blumberger for their confidential reports as psychiatric consultant reports to my understanding require their respective permission for release to a third-party.

Mr. King with reference to your letter of February, I am given to understand that you are requesting the “diagnosis, restrictions and limitations with each visit” from November 1, 2011 to the present. As a medical doctor of over 40 years that has experience in emergency medicine, WSIB, Insurance claims, court testimony, and Industrial Medicine, I find your request of the 75 medical visits with Peter during the interim in question unreasonable. As a family doctor, I would record diagnosis for each visit, but I would not be required to record restrictions or limitations.

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One of my patients, felt she was unduly treated by the insurance company, in the case of Fimiani vs Regina and she was granted an additional award by the court for unreasonable treatment.

Mr. King, in response to your letter, my secretary sent an invoice for payment to your attention, on March 13, 2013. The invoice clearly stated that “payment in full is required prior to release of the file” information.

To date we have not received any payment.

On a compassionate basis for Peter Mitchell, I am submitting this report without payment.

Sincerely,

Dr. A. Friesner MD

50. Dr. Friesner’s testimony at the hearing and the letter to Mr. King reproduced

above reveals that Dr. Friesner is not objective in his view of the grievor. The letter is

clearly confrontational and accusatory in tone. It expresses opinions that go well

beyond Dr. Friessen’s expertise as a medical doctor. It is more in the nature of the

comments of a legal advocate. It causes me concern that Dr. Friesner is too invested in

the grievor’s workplace problems. This played out in his testimony as well, as described

below.

51. Dr. Friesner expressed the opinion that the grievor was “totally disabled” due to

the harassment his patient had suffered at work. He was prepared to express this

opinion for both the “own” and “any” occupation phases of LTD entitlement without

knowledge of what the grievor did for the City and without any appreciation of the

change in definition threshold. Dr. Friesner was given a fair opportunity to read and

consider the McLean arbitration award, but he did not give it more than a cursory skim.

When asked why he had not read the decision he replied: “Why would I?”

52. In cross-examination, as counsel for the City went through portions of the

McLean Award with Dr. Friesner, it became readily apparent that he did not have much

knowledge of the circumstances surrounding the grievor’s harassment or the timing of

the incidents which gave rise to Dr. Friesner’s intransigent views of the correctness of

the grievor’s position about his mistreatment in the workplace.

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53. One of Dr. Friesen’s misconceptions, which came out during his testimony, was

that he thought that the grievor had previously worked for the City. Also, in cross-

examination it became apparent that he was unaware that the City had written to the

grievor to request that he return to work. He remained steadfast in his view that the City

had cut off the grievor’s benefits without warning even when presented with a letter

dated February 1, 2013 indicating the contrary (the grievor had not informed Dr.

Friesner of the circumstances of the letter’s delayed receipt).

54. Dr. Friesner’s lack of familiarity with the grievor’s situation was apparent when

Dr. Freisner testified that his patient came to his office frustrated on December 9, 2011

not knowing what to do. This was well into the grievor’s 10-day suspension. Dr. Friesner

testified: “I think I wrote mailbox trouble – asked for job description.” Moreover, in

making his reference to “nigger overtones” in his letter to Mr. King and in his notes on

December 16, 2011, it became apparent that Dr. Friesner had no idea that the source of

the complaint by the grievor related to a 2007 racist email joke described in the McLean

Award.

55. Dr. Friesner went so far in his testimony to state that the grievor had been

“tortured” at work and that due to occupational stress he became depressed and

therefore unable to work. Yet Dr. Friesner also testified that since going off work the

grievor had told him that he had always been “able” to work but that his treatment by

management was what prevented him from returning. Dr. Friesen also expressed his

view that the grievor should be given an apology for the treatment he had endured and

that he should be awarded back pay. He added that others should not be tortured as the

grievor had been, regardless of their race, creed or religion.

56. In direct contrast to the evidence given by Dr. Friesner stands the testimony and

medical opinion of Dr. Yui. Her report is extensive and thorough. Dr. Yui’s testimony

was as impressive as her report. Her assessment of the grievor included a review of

significant and relevant documentation including the reports referenced above, as well

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as the April 2, 2013 letter from Dr. Friesner. She had also read the McLean Award prior

to her attendance at the hearing.

57. Dr. Yui’s history of the grievor’s presenting illness demonstrates an appreciation

of the grievor’s work history, his various roles at the City and his personal history. In

addition to the subjective reporting of symptoms by the grievor, Dr. Yui undertook an

objective mental status examination of the grievor. She made objective determinations

concerning the grievor, relating to his appearance, behaviour, mood, anxiety, speech,

thought form, thought content, memory, concentration, insight and judgment during her

assessment. These objective observations informed her findings together with all the

other information she had before her.

58. Before delving into the grievor’s history during her assessment, Dr. Yui explained

the importance of asking persons being assessed what they perceive their chief

complaint to be. To do so is routine in psychiatric assessments because it orients the

assessor to the person being assessed. In this case the grievor identified his chief

complaint: “My biggest problem right now is dealing with my union, management and

now Manulife.”

59. At the hearing Dr. Yui went through her report, explained the purpose of each

section and how each assisted her in making her findings. Dr. Yui’s summary is set out

below:

SUMMARY

Mr. Peter Mitchell is a 63-year-old man who is suffering from an adjustment disorder with Mixed Anxiety and Depressed Mood as a result of ongoing and relentless “harassment” and acts of “racial discrimination” by management. The important point to note here is that Mr. Mitchell is a person with strong obsessive-compulsive personality traits which makes him highly, if not rigidly, adherent to principles of justice and what is right and wrong. He will not give up this fight for what he believes to be right as he does not want others to suffer as he has.

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60. Dr. Yui set out the following factors contributing to his mental state and prognosis

from a biological, psychological and social perspective.

Predisposing factors:

- No family history of psychiatric illness. - Chronic pain. - Personality organization that centers around rigid adherence to rules, that which is “right,” principles, justice and fairness.

Precipitating factors:

- Poor treatment by HR, the Union and management for the time of his transfer to cleaning.

Perpetuating factors:

- Not working. - Financial stress. - Worry about outcome of Labour Board meeting on June 17

Protective Factors:

- Highly motivated to return to work.

Prognosis:

- Good

61. Dr. Yui then sets out her diagnosis of the grievor based on the Diagnostic and

Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-IV- TR”) -

the diagnostic tool used by psychiatrists with labels corresponding to specific

constellations of symptoms, as follows:

Axis I Adjustment Disorder with Mixed Anxiety and Depressed Mood; chronic.

Axis II Obsessive Compulsive Personality Traits.

Axis III Chronic back, knee and left hand/arm pain.

Axis IV Not working. Financial Stress Worry about outcome of Labor Board meeting on June 17. Axis V GAF 65-70

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62. Dr. Yui’s explanation of each Axis and how she came to her determination

pertaining to each is set out below. With the exception of Axis V, which assesses a

person’s global ability to function reflected in a GAF score, the other Axes do not speak

to a person’s ability to function.

63. Axis I captures a person’s psychiatric condition. The grievor’s adjustment

disorder, according to Dr. Yui, can be tracked back to his transfer out of the chauffeur

position he held with the City many years ago. That job the grievor had found very

rewarding. This explains Dr. Yui’s identification of the grievor’s adjustment disorder as

“chronic.”

64. While a person can have more than one Axis I diagnosis, Dr. Yui articulated that

she chose this diagnosis (as opposed to major depressive disorder despite the

presence of symptoms that could justify such a diagnosis according to the DSM-IV-TR)

because her diagnosis takes into consideration the stressors that she was of the view

contributed to the grievor’s mental state.

65. Axis II captures personality disorders. Dr. Yui explained that it would be

imprudent to diagnose someone with a personality disorder after seeing him or her only

once. However, she explained that considering the totality of the information before her

(including, for example, the grievor’s insistence on returning to work soon after surgery

performed years prior; the grievor’s view of himself as a “perfectionist”; his inclusiveness

of details tied to his thought form; his equation of work with his identity as an individual;

and his “high morals”), she concluded that the grievor’s personality organization

reflected obsessive personality traits.

66. Axis III is the axis that sets out medical conditions and takes into consideration

genetics and general health so as to provide a comprehensive analysis of the “whole

person” in a psychiatric assessment. For example, chronic pain, from which the grievor

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suffered, is a condition that may make a person more susceptible to developing a

psychiatric condition.

67. Axis IV captures the biological, social, and psychological formulation of the

individual together with the stressors or social situations that have an impact on a

person’s overall mental state. Not working, financial stress and the impending labour

board matter at the time of the assessment were the perpetuating factors that operated

to maintain the grievor’s state of depression and anxiety.

68. With respect to “not working” being a stressor, Dr. Yui explained that, in persons

such as the grievor who value and want to work, working acts as a protector and assists

them in helping them in recovering from their psychiatric disorders. According to Dr. Yui,

the grievor had made clear to her his view that he had no choice not to return to work,

not because he was unable to perform his job as a council receptionist, but because his

Union was preventing his return to work.

69. At the hearing, the grievor said that what he meant by that was that it was taking

the Union a lot of time to get anywhere with his grievances and that he felt he would be

subject to the same humiliation if he went back to work. The grievor confirmed his belief

that at the time that Dr. Yui assessed him, he was able to go back to work.

70. Dr. Yui testified very diplomatically about what she perceived to be Dr. Friesner’s

challenge in treating the grievor: he did not appreciate that the grievor’s need to work

was a major part of the grievor’s identity. Rather, Dr. Friesner, in Dr. Yui’s view, had

focused on the grievor’s “need for justice.” He concluded that the grievor was suffering

greatly because he believed he had been wronged, instead of focusing on alleviating

that suffering by helping him get back to work. Though Dr. Yui articulated that she

wanted to respect the “strong therapeutic alliance” between the grievor and Dr.

Friesner, and his support of the grievor as a person, she did not think that Dr. Friesner

understood the grievor’s personality organization due to Dr. Friesner’s lack of training in

psychiatry.

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71. Dr. Yui explained that if the grievor was able to obtain the relief he was seeking

for the perceived harassment he had experienced in the workplace, namely an apology

and compensation for lost wages and benefits that this would appease him and it would

make him feel better considering his personality type. Having reviewed the McLean

Award, Dr. Yui testified that without the sought-after relief, the grievor would be not be

appeased. He would be negatively affected in how he would feel about being back at

work.

72. Dr. Yui testified that without the relief he was seeking, the grievor would not apply

his energies at work. Dr. Yui anticipated the grievor would continue to perceive

instances of harassment at work and that the likely result would be continued workplace

strife. The grievor’s challenge in these circumstances would be his attitude about work,

and his continued “fight” for justice. Dr. Yui’s unshaken opinion, however, was that such

continued workplace strife did not translate to the grievor being “totally disabled” from

performing his duties at the City.

73. Axis V - Global Assessment of Function - measures a person’s overall ability to

function. A GAF score between 60-70 is identified as indicative of “some mild symptoms

or some difficulty in social, occupational or school function but generally functioning

pretty well, has some meaningful interpersonal relationships.” Dr. Yui put the grievor’s

GAF score at 65-70. Dr. Yui reiterated that a person with such a GAF score can feel

depressed and anxious but still function at work.

74. Dr. Friesner testified that Dr. Yui’s score of 65-70 was more realistic than those

attributed to the grievor earlier by Drs. Blumberger and Kroft and that Dr. Yui’s report

was “far superior” to any of the other psychiatric reports. Notwithstanding these

comments, he agreed only with the “anxiety and depression” parts pertaining to Dr.

Yui’s diagnosis of the grievor.

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75. Dr. Yui also determined, by her mental status examination of the grievor, that he

was mentally organized, with adequate concentration and working memory to perform

his work. Dr. Friesner agreed that the grievor was cognitively fit to work.

Decision

76. The question I must answer is whether, on the evidence before me, the Union

has discharged its burden to prove on the balance of probabilities that the grievor was

“totally disabled” as defined in the Plan document.

77. The Union submits the grievor was totally disabled during the six-month

qualifying period and for the “own occupation” phase for entitlement to LTD benefits

commencing June 15, 2012 and running through to June 14, 2014. According to the

Union, the grievor continued to be totally disabled thereafter for the “any occupation”

phase commencing June 15, 2014 and running through October 30, 2014, when the

grievor turned 65.

78. As an alternative position, the Union says that the grievor is entitled to LTD

benefits for the own occupation entitlement phase, and requests that I direct Manulife to

determine eligibility for the any occupation phase. In the further alternative, the Union

submits that the grievor is entitled to LTD benefits in the own occupation phase until

May 21, 2013, when Dr.Yui assessed the grievor.

79. In addition to the payment of LTD benefits, the Union requests that I order the

City to apologize to the grievor. The Union is also seeking damages on behalf of the

grievor in the amount of $1,330,000.00. It is unclear to me where that figure comes

from. It appears, however, to be consistent with a continued “fight for justice” of

perceived wrongs considering the grievor’s personality organization.

80. The grievor must have been, in this case, wholly and continuously disabled due

to his psychiatric condition during the six month qualifying period commencing

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December 16, 2011 through June 15, 2012 and the following 24 months through June

14, 2014 (“own occupation” phase), and as a result, not mentally fit to perform the

regular duties of his councillor reception position at the City.

81. Thereafter, the grievor must have been totally disabled for the “any occupation

phase” of LTD benefit entitlement commencing June 15, 2014 through October 30,

2014, when the grievor turned 65. The Union must demonstrate that the grievor was

wholly and continuously disabled due to his psychiatric condition, and as a result not

mentally fit to perform the regular duties of his councillor reception position and any

other occupations as set out in the definition of the Plan document reproduced above.

82. While both parties provided cases where benefits had been denied or allowed

pursuant to adjudicated assessments of facts applied to LTD plan documents, the

determination to be made in LTD cases is highly fact specific.

83. Having regard to the totality of the evidence before me, I find the Union has failed

to discharge its onus.

84. Having regard to the evidence of the series of psychiatrists who saw the grievor

commencing with Dr. Werry in February 2012, I accept that the grievor in this case

suffers from a psychiatric condition. However, the medical opinions of the medical

professionals who testified differ as to the precise nature of the condition. Dr. Friesner

was of the view that the grievor suffered from occupational stress, depression and

anxiety neurosis, whereas Dr. Yui concluded the grievor had an adjustment disorder

with mixed anxiety and depressed mood; chronic.

85. Other diagnoses ascribed to the grievor were made by psychiatrists who were

not called to testify at the hearing. Dr. Werry believed the grievor had an adjustment

disorder with depressed mood. Dr. Blumberger diagnosed the grievor as suffering from

a major depressive episode – moderate with melancholic features, and assessed the

grievor’s GAF as 40-50. Dr. Kroft, on the other hand, diagnosed the grievor as suffering

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from a major depressive disorder and he wrote that the grievor was suffering from

severe depression and anxiety with a GAF of 50.

86. Irrespective of the psychiatric condition from which the grievor suffers, the real

question is whether as a result of that condition he was mentally unfit to perform the

essential duties of his position of council reception during the period defined by the Plan

and set out above.

87. Dr. Yui had an appreciation of what the grievor’s job was because she did a

thorough assessment of the grievor’s history and she read Arbitrator McLean’s Award;

Dr. Friesner had no such an appreciation of the grievor’s work, nor did he appreciate the

importance of it in historical context or as it related to his personality organization and

ultimately his Axis I diagnosis.

88. It is Dr. Yui’s diagnosis of the grievor’s condition – namely that the grievor suffers

from an adjustment disorder with depressed mood and anxiety –chronic – that I accept

as the one that accurately reflects the grievor’s psychiatric condition. Dr. Yui’s evidence

was the only expert psychiatric evidence proffered at the hearing, and her assessment

reflects a thorough and objective assessment of the grievor.

89. Dr. Yui articulated very clearly why she chose the diagnosis of an adjustment

disorder rather than major depressive disorder. In settling on that diagnosis, Dr. Yui was

aware that a person can have two Axis I diagnoses. She took into consideration what

she appreciated were clear stressors for the grievor in her global psychiatric

assessment of him. The fact that the grievor was not responsive to the medications Dr.

Friesner was prescribing is consistent with Dr. Yui’s diagnosis (and Dr. Werry’s for that

matter). Dr. Yui’s extensive training and her well articulated in-depth assessment lead

me to accept her diagnosis without reservation.

90. As for the consideration of the other psychiatric reports before me their authors

did not testify at the hearing. In circumstances where a grievance such as the one

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before me will ultimately “stand or fall” on whether the psychiatric condition from which

the grievor suffers rendered him “totally disabled” such that he was not mentally fit to

perform the essential duties of his normal occupation – little or no weight can be

attributed to them because the authors opinions were not subject to cross examination.

(See City of Toronto and Canadian Union of Public Employees, Local 79, (Grievance of

Krystyna Tautt) (unreported Tims) May 10, 2007).

91. As for Dr. Friesner, he was really in no position to challenge Dr. Yui’s opinion. Dr.

Friesner has no training in psychiatry and he does not consult the DSM-IV-TR in his

practice. His opinions regarding the psychiatric diagnoses put forth in this hearing have

little weight, and in any event, the reliability of his evidence was undermined by his

apparent blind faith in the justness of the grievor’s cause. Without repeating the

evidence set out above, I can come to no conclusion other than Dr. Friesner skewed his

testimony in an effort to assist the grievor’s case.

92. Although I do not put significant weight on Dr. Werry’s report, hers is by far the

most thorough report before me after Dr. Yui’s. It is consistent with Yui’s in many

respects. Dr. Yui’s evidence was that upon reviewing that report, her view was that Dr.

Werry had undertaken an in depth psychological assessment of the grievor. Despite

that, Dr. Friesner and the grievor rejected it out of hand. I do not propose to review Dr.

Blumberger’s report, which was properly characterized by City counsel as “bizarre ” on

its face. The brief reports and clinical notes of Dr. Kroft raise more unanswered

questions than they answer.

93. On the totality of the evidence before me I am unable to come to the conclusion

that as a result of the grievor’s condition, he was not mentally fit to carry out the

essential duties of the councillor reception position at the City during the relevant time

period.

94. Dr. Yui made clear that when she assessed the grievor on May 21, 2013, he was

cognitively intact. His thought processes were normal, he was mentally organized, with

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adequate concentration and working memory. On this, even Dr. Friesner was in

agreement.

95. The only psychiatric evidence that I am prepared to accept as reliable and which

speaks to the grievor’s global level of functioning is reflected in the GAF score assigned

to the grievor on May 21, 2013. The grievor testified unequivocally that he believed that

his “mental state” as of that date was such that he was able to return to work.

96. A GAF score of 65-70 suggests that the grievor was functioning at a level of

mental fitness adequate to carry out the essential duties of his council reception

position. Counsel to the Union reminded me that the score on May 21, 2013 only

measured functioning at that time. Counsel reminded me that Dr. Yui had agreed that

the grievor felt that he had been listened to during the assessment and that she had

seen the grievor at his “best” in that respect. I accept that that was the case. However,

in the absence of oral testimony by Dr. Blumberger and Dr. Kroft, I am not prepared to

put weight on the GAF scores from their reports. Moreover, I also note that Dr. Friesner

thought the score Dr. Yui had assigned the grievor was more realistic than those GAF

scores attributed by the other psychiatrists at earlier points in time.

97. It is also very significant that the grievor himself admitted that the symptoms he

was experiencing deteriorated since he had been off work. Accepting that was the case

(it is consistent with Dr. Yui’s opinion) it does not follow that if the grievor was mentally

fit to work on May 21, 2013 that he was “totally disabled” before then.

98. Considering the grievor’s own testimony regarding the progressive worsening of

the grievor’s symptoms, his evidence as to his mental state when he saw Dr. Yui on

May 21, 2013, as well as the grievor’s GAF score at that time, I am unable to find that

the grievor’s condition rendered him mentally unfit to perform the essential duties of his

job.

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99. For all these reasons, the City has not breached the collective agreement in

failing to pay LTD benefits commencing June 15, 2012. Accordingly the grievance is

denied.

Dated at Toronto on December 10, 2014.

________________________________

Christine Schmidt, Sole Arbitrator