Monday, November 14, 2011

Denial of sick leave benefits leads to damages for mental distress

In Fortis v. IBEWarbitrator Mark Thompson awarded damages of $5000 for mental distress based on the principles set out in 2006 by the Supreme Court of Canada in Fidler v. Sun Life Assurance Co. of Canada.  In that case the SCC upheld an award of $20,000 for damages for mental distress suffered by Ms. Fidler as a result of Sun Life's unwarranted delay in paying out long term disability benefits.
The Fortis decision contains a very useful summary of arbitration awards that have applied Fidler .  The arbitrator concludes that damages for loss of sick leave benefits should "be granted when there is medical evidence of a connection between the stress or other psychological conditions (“mental distress”) and the actions of the employer or insurance carrier."

On the facts before him Arbitrator Thompson made the following findings:

Damages in this context are not a punishment to the Employer, but compensation to the employee. 

Based on the evidence presented, I conclude that Mr. Pearson’s inability to obtain sick leave when he and his physicians believed that he should not be working caused Mr. Pearson to suffer mental distress as the term is used in Fidler. Dr. Lowden testified that he knew of Mr. Pearson’s difficulties with Manulife were stressful to his patient, and he thought that that this stress made his pelvic pain worse. Dr. Jewett was asked if Mr. Pearson’s lack of financial support because of his problems in obtaining sick leave had an impact on his health and ability to work. Dr. Jewett responded that he is not a psychiatrist, but he thought someone in Mr. Pearson’s job should be at his psychological best. Dr. Schieman wrote a letter to Dr. Lowden in October 2009 stating that the disagreement between Mr. Pearson and Manulife was causing him stress. Consequently, Dr. Schieman was to write another letter to Manulife concerning Mr. Pearson’s medical condition.

I believe the evidence of the three physicians involved in Mr. Pearson’s illnesses constitute the “medical evidence” as contemplated by the Court in Fidler, and the second condition in para. 47 of that case. It is consistent with the conclusions of other adjudicators who have been asked to answer similar questions. This evidence demonstrates that Mr. Pearson suffered mental distress because of a violation of the sick leave provisions of the collective agreement. Therefore, I conclude that damages are warranted. As I have noted above, I do not conclude that either Manulife or the Employer acted unreasonably or egregiously. Under these circumstances, I conclude that an award of $5000 in damages is appropriate

(with thanks to Diane MacLean for her contribution)Fortis v. IBEW

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