Decision – Independent Medical Report Ordered

IN THE MATTER OF THE CANADA LABOUR CODE, R.S.C. 1985, c. L-2

IN THE MATTER OF AN ARBITRATION

BETWEEN:

TELECOMMUNICATIONS WORKERS UNION

UNION

AND:

TELUS COMMUNICATIONS INC.

EMPLOYER

[The Grievor – Union Grievance #2008.295 – Termination]

PRELIMINARY AWARD – INDEPENDENT MEDICAL EXAMINATION

Arbitrator: Ib S. Petersen

Date of Hearing: May 7, 2010

Date of Decision: May 17, 2010

Appearances:

Mr. Don Richards, counsel for the Employer.

Ms. Shona Moore, Q.C. and Mr. Ryan Goldvine, counsel for the Union.

INTRODUCTION

On July 6, 2009, the Minister of Labour appointed me, under Part I of the Canada Labour Code, to arbitrate the dispute between Telus and the TWU concerning the dismissal of the Grievor.

By way of background for this application, the Employer says it terminated the Grievor’s employment in October 2008 for excessive absenteeism. She has been diagnosed with chronic depression, and the Employer considered that she was unable to attend work on a regular basis. The Employer says that it accommodated her to the point of undue hardship. The Union grieved the termination, which it says was without just cause, and contrary to the collective agreement and the Canada Human Rights Act. The Union says, among others, that the Grievor suffered from a disability, including depression, a condition known to the Employer since her date of hire, and on an ongoing basis. The Union denies that her absenteeism was excessive, but says that, in any event, it was related to her disability and did not cause the Employer undue hardship. Moreover, the Union denies that the Employer accommodated her as alleged, and that, with appropriate accommodation, she is capable of improved attendance in the future. I stress that make no findings of fact for the purposes of the hearing of the merits of this matter.

A hearing of the merits of the Grievance was initially scheduled by consent for January 5 through 8, 2010. It was adjourned by consent to June 21 through 25 and July 5 through 8, 2010.

There was some disagreement between the parties with respect to disclosure of medical records. Following a case management conference on November 30, 2009, I issued an order for the disclosure of certain medical records of two physicians involved in the treatment of the Grievor. On February 11, 2010, I convened a pre-hearing conference to deal with the Employer’s application for an independent medical examination (“IME”) of the Grievor by a psychiatrist of its choice, Dr. Kenneth Hashman. Having considered the submissions of the parties, I dismissed the application as premature at that point. Among others, the TWU had not yet determined whether it was going to rely on an expert report by a psychiatrist, Dr. Harinath Mallavarapu, at the hearing of the grievance. Dr. Mallavarapu conducted an examination of the Grievor on March 25, 2010 with her consent, and issued his report on April 19, 2010. Shortly thereafter, by letter dated April 27, 2010, the TWU advised the Employer that it intended to rely on Dr. Mallavarapu’s report at the hearing.

At the request of the parties, I convened a pre-hearing conference in Vancouver, British Columbia, on May 7, 2010, to deal with the Employer’s application that the Grievor undergo an IME by Dr. Hashman on May 27, 2010. The Union opposed the application.

ISSUE

Briefly put, the question before me is whether it is appropriate, in the circumstances, to order that the Grievor undergo a medical examination by Dr. Hashman.

SUBMISSIONS

The Employer says that the grievor was dismissed for excessive absenteeism in October 2008. She has been diagnosed with chronic depression. The Employer also contends that it accommodated her disability to the point of undue hardship. The Union intends to rely on an expert report from Dr. Mallavarapu, a psychiatrist, who has had the benefit of examining the Grievor. Therefore, the application of fair hearing principles demands – to “level the playing field” – that the Employer be allowed to conduct an IME with a psychiatrist of its choice.

Telus submits that the distinction between “return to work” category of cases and “fair hearing” cases is important. It relies on Telus Communications Inc. v. Telecommunications Workers Union (Harris Grievance), [2008] C.L.A.D. No. 7 (Brown) (“Telus No. 1”), and the review of the law therein, starting with the seminal decision in The University of British Columbia v. Association of University and College Employees, Local 1, [1984] B.C.C.A.A.A. No. 45 (McColl) (“UBC”). Thus, where “a party introduces expert medical evidence or has an expert testify, in order for the party adverse in interest to be provided with a fair hearing, a request by the adverse party for an independent medical examination is generally granted” (Telus No. 1, § 34). The case law has “overtaken” the UBC award: it is no longer required that the expert evidence in question be “ambiguous, controversial and equivocal” (UBC, § 85). In a case, on “all fours” of this case,Canada Post Corp. v. C.U.P.W. (1997), 69 L.A.C. (4^th) 393 (Burkett) (“Canada Post”) the arbitrator allowed the employer an IME, “regardless of whether the evidence called by the union is in some way equivocal” (p. 397). The “fair hearing” principles have been applied in a number of other cases subsequent toUBC: Oshawa Foods v. U.F.C.W., local 175 (1994), 43 L.A.C. (4^th) 396 (Craven) (“Oshawa Foods”); Chetwynd General Hospital v. B.C.N.U. (1996), 53 L.A.C. (4^th) 188 (Kinzie) “Chetwynd General”); Pacific National Exhibition Assn. v. Canadian Union of Public Employees, Local 1004, [2006] B.C.C.A.A.A. No. 104 (Sullivan) (“PNE”); Telus Communications Inc. v. Telecommunications Workers Union (J.G. Grievance), unreported, March 16, 2007 (Beattie) (“Telus No. 2”); Elk Valley Coal Corporation, Cardinal River Operations v. united Mine Workers of America, Local 1656 (Stewart Grievance), [2006] A.G.A.A. No. 65 (Lucas) (“Elk Valley”).

While Telus recognizes the Grievor’s privacy rights, where the union puts the grievor’s mental state in issue, and intends to rely on expert psychiatric reports, which would intrude on the grievor’s privacy rights, the requirement that all parties be granted a fair hearing must take precedence over the grievor’s concerns about her privacy. Indeed, denying the employer the opportunity for an independent assessment would deny it a full and fair hearing. If Dr. Hashman is called to testify, the Union is likely to put to him that he “hasn’t even seen this woman,” hence, the prejudice to the Employer.

Telus is entitled to choose an expert it has confidence in, and rejects the suggestion that an independent psychiatrist be chosen by agreement or appointed by me. The Union already has its report from Dr. Mallavarapu. There is no suggestion that Dr. Hashman is not suitable. It would be inappropriate to allow counsel to be present in the examination. In any event, even if I accept that the expert medical evidence in question must be “ambiguous, controversial and equivocal,” the deficiencies in Dr. Mallavarapu’s report, from the Employer’s perspective, are such that they meet that condition.

The Union opposes the Employer’s application. The thrust of its case is that I ought not exercise my discretion here. While the Union generally accepts the categorization in Telus No. 1, the principles applicable are the same. The TWU argues that the order sought by the Employer, is an extraordinary remedy, infringing on person’s privacy rights (Board of Health for the Hastings and Prince Edward Counties Health v. C.U.P.E. local 3314 (Keeling) (2003), 125 L.A.C. (4^th) 272 (Starkman) (“Hastings”). Any medical examination without consent is a significant intrusion into security of the person; that is even more so in the case of a psychiatric examination. The Grievor has been diagnosed with, among others, bipolar disorder II. An examination requires the patient to have trust, which the grievor does not have, having learned that the psychiatrist selected by Telus has an ongoing relationship with it. Moreover, Telus kept comprehensive medical records with respect to the Grievor during her employment, and knew about her medical condition. The relevant time for inquiries into her medical condition was at the point of termination. Telus did not make its decision based on medical advice regarding her limitations and capabilities. As well, the Union sought the Employer’s agreement to have Dr. Mallavarapu appointed to conduct an independent medical examination of the Grievor. He has no prior relationship with the Grievor or the Union. Dr. Hashman has an ongoing relationship with Telus. The Union sought to obtain a truly neutral expert, and notes that Dr. Mallavarapu has reviewed all of Telus’ medical records.

The TWU submits that I must return to the basic principles in the UBC case. In that case, there was “considerable controversy” surrounding the report by the treating psychiatrist, and the union agreed as much, making the case distinguishable from the circumstances of this case (see also Pope and Talbot v. I.W.A. Canada, Local 1-423 (1996), 57 L.A.C. (4^th) 63, (Pope and Talbot) p. 68. UBC stressed the “heavy onus … to demonstrate the necessity for an outside opinion” (UBC, § 49). It is not appropriate to order an IME “solely to refute an existing medical report even where the information is incomplete or inadequate” (Overwaitea Food Group v. United Food and Commercial Workers Union, Local 1518, [2003] B.C.C.A.A.A. No. 311 (Burke) (“Overwaitea Foods”). The fundamental concept of evidence, such as expert evidence, is that it is there to assist the trier of fact at the hearing. The request for such an IME should be approached cautiously, and only as necessary to cure defects in the existing evidence, after less intrusive methods have failed. There is, on the evidence, no deficiency that cannot be cured by other means. On the law, says the Union, it is not sufficient to simply advance the request to prepare for cross-examination and receive instructions.

The TWU emphasizes that fair hearing requirements and employees’ privacy rights in cases of this nature must be reconciled. Fair hearing principles do not always trump privacy rights, and merely putting one’s medical condition in issue should not, per se, result in an order for an IME (Hastings). Arbitrators must exercise discretion and balance those interests, having regard to the facts of each case. In Overwaitea Foods the arbitrator explicitly refused to follow the line of cases argued by Telus without weighing the conflicting interests. However, where an order for an IME is granted, the arbitrator “should ascertain that the order made should contain provisions which as far as possible can protect that privacy” (UBC, § 81). In UBC, the arbitrator directed that the grievor be examined by a psychiatrist agreed between the parties, and that the grievor was entitled to have his counsel or attending physician present at the interview. Where the information is insufficient and inconclusive, the employer may seek additional information (Overwaitea Foods). There is no evidence of any actual deficiency in medical evidence in the sense considered in UBC and Overwaitea. Moreover, the Employer did not seek clarification or pursued other avenues of obtaining the information it says it requires. Deficiencies can be addressed in cross-examination, through further pre-hearing information, and questioning of the physician.

The Union requests that the Employer’s application be dismissed. In the alternative, the Union submits that the Employer be directed to seek clarification of the areas of the Dr. Mallavarapu’s opinion that are not clear. In the further alternative, if I grant the order for an IME, it should not be by a psychiatrist unilaterally selected by the Employer, but that I should allow the parties time to agree to a psychiatrist and set conditions similar to those in the UBC case, including a direction that the Grievor be entitled to have counsel, his physician or another trusted person present at the interview, and that a copy of the report be provided to the parties.

ANALYSIS

I have carefully reviewed the submissions of the parties.

I intend to review the authorities referred to by the parties, starting with UBC, the seminal case, in some detail. In UBC, the grievor had a history of psychiatric illness, and the University placed him on medical leave. He sought to return to work based on medical reports that suggested that he was fit to return to work. In the arbitration, the medical evidence included two medical reports that suggested that the grievor was fit to return to work; one from a psychiatrist who had treated him at some point, and an psychiatrist who had examined him and provided a medical-legal report in preparation for the arbitration. The union intended to rely on these reports. The University argued that fair hearing principles entitled it to an IME for the preparation of its case and its ability to instruct its counsel. Arbitrator McColl framed the issues (§ 20):

1. Is the medical state of the grievor relevant to the proceedings in question?

2. If so, do I have jurisdiction to order that the grievor submit to an independent medical examination?

3. If so, should the discretion in this case be exercised in favour of ordering the grievor to submit to an independent medical examination?

The arbitrator reviewed the labour jurisprudence and concluded:

44 …. What is in issue in these proceedings is a different concept altogether. It is the question of what amounts to a fair hearing. Here, says the employer, the grievor is intending to rely upon medical evidence based upon the opinion of a physician who has treated him. The employer argues that in the sense of fair play it should be entitled to have access to an independent medical opinion …..

45 …. It is sufficient, I think, to say that where there is a substantive issue as to whether or not a medical report is reliable in terms of its diagnosis or conclusions, and that issue is bound to be determined by an impartial tribunal, a party adverse in interest is entitled to have the benefit of an independent expert for the purpose of properly presenting its case to the impartial tribunal.

The fundamental concept of evidence, such as expert evidence, is that it is there to assist the trier of fact. Arbitrator McColl opined that he “exercised the discretion principally because … the medical evidence … is ambiguous, controversial and equivocal. There is the distinct possibility that the treating physician’s evidence … will not enlighten me.” In UBC, there was “considerable controversy” and “confusion” with respect to the report by the treating psychiatrist (§§ 50-51). Arbitrator McColl noted: “it is the confusion created by the treating physician … which gives rise to serious consideration of the employer’s application” (§ 50). From the award, it is clear that both the union and the employer in that case agreed with that assessment. UBC stressed the “heavy onus … to demonstrate the necessity for an outside opinion” (§ 49). While the decision speaks to, on the one hand, a “substantial issue” as to the “reliability” of medical evidence, on the facts of the case, the arbitrator set a high standard for the granting on an IME. In my view, the subsequent “fair hearing” cases generally did not apply UBC in that manner.

Arbitrator McColl recognized the conflicting interests between the employer’s right to a fair hearing and the employee’s right to privacy, and considered the nature of the medical condition, “fact that in the particular case the issue is one of a psychiatric condition” (§ 88). Where privacy rights and management rights clash, the proper approach is to reconcile those values. Where the employer, with reasonable cause, could require an examination, the choice of the physician must involve the employee (§§ 77-81). Arbitrator McColl stated: “where the discretion is exercised in favour of granting an order [for an IME], … the arbitrator in pursuance of protecting the right to privacy as far as can be compatible with the direction to submit, should ascertain that the order made should contain provisions which as far as possible can protect that privacy” (§ 81). In the result, he ordered that the grievor be interviewed by “a psychiatrist agreed to between counsel for the employer and counsel for the union for the purposes of providing the employer with a medical legal report assessing the grievor’s mental condition” (§ 91). Arbitrator McColl did not foreclose the option of having the grievor attend a psychiatrist of the employer’s choice: “In many instances it may be sufficient to refer the grievor to a recognized physician in the field nominated by the employer” (§ 88).

The facts of Oshawa Foods, which are somewhat unusual, arose out of the dismissal of two employees for allegedly making false claims of sexual harassment of a fellow employee. In the arbitration, during examination-in-chief, one of the grievors volunteered information not put to the person allegedly harassed in cross-examination. When the employer objected, counsel for the union disclosed that the grievor sufferered from a mental precondition that prevented her from fully apprising counsel of all material facts. He proposed to lead psychiatric expert evidence in that regard. After a voir dire, the arbitrator allowed the union to call the expert evidence. The employer then applied for an IME by a psychiatrist of the employer’s choice, relying, among others, on UBC. The arbitrator found that the “return to work” cases, submitted by the union, were “readily distinguishable,” as the issue was “not management’s substantive rights under the collective agreement but rather a party’s litigation right to fairness in the adjudicative process” (pp. 403-404). Arbitrator Craven adopted UBC as the correct approach, quoting McColl as follows:

He concluded:

25 …. The union seeks to rely on psychiatric and psychological testimony to persuade me that Sharon Nadeau suffers from a mental condition which prevented her from fully instructing counsel at the appropriate time. This is contested by the employer, which says that in order to properly instruct counsel for the cross-examination of the union’s experts, and for the preparation of the expert testimony it may decide to lead, it requires the grievor to be examined by its own expert advisor. Otherwise, says the employer, I will be asked at the end of the day to choose between the opinions of the union’s medical experts who have examined the grievor and the employer’s expert who has not. This places the employer at a disadvantage which is prejudicial to its right to a full and fair hearing.

26 In the unusual circumstances of the voir dire, fairness requires that the employer’s motion be granted. ….

The facts of Oshawa Foods are, as noted by the Union here, somewhat unusual, arising out of a voir dire and no on the merits of the case.

In Chetwynd, arbitrator Kinzie dealt with a grievance of a nurse who had been dismissed for alleged medication errors. The union gave notice that it intended to rely on the opinion of a psychiatrist, who had examined the grievor, and issued two reports. The employer requested an order for an IME by a psychiatrist selected by it. The Employer maintained that the order was necessary in order that the Employer be in a position to call its own evidence on the issue and cross examine the Union’s witnesses on the issue, including the union’s expert. It submitted that without such an order, because the grievor refused to submit to such an examination or consultation voluntarily, it would be denied a fair hearing. Arbitrator Kinzie adopted the reasoning in UBC and Oshawa Foods (p. 191), and granted the employer’s application:

11 The Union has put the grievor’s mental condition in issue by giving the Employer notice of its intention to call Dr. Cilliers on that issue and to introduce Dr. Cilliers’ reports regarding the grievor into evidence. The Employer is entitled to respond to the Union’s allegations based on the grievor’s mental condition and I am satisfied that my making the order requested is necessary so that counsel can be properly instructed “for the cross-examination of the union’s experts, and for the preparation of the expert testimony it may decide to lead”. See Oshawa Foods, supra, at 407.

….

13 I agree that my granting the order requested by the Employer will intrude on the grievor’s privacy. However, the Union has put the grievor’s mental condition in issue in this proceeding by giving notice that it intends to call Dr. Cilliers and introduce her reports on her consultations with the grievor. That evidence and those reports also intrude on the grievor’s privacy. In any event, I am of the view that the requirement that all parties to this proceeding, including the Employer, be granted a fair hearing must take precedence over the grievor’s concerns about her privacy.

In Chetwynd, the union argued that the arbitrator should, if he granted the employer’s application, impose conditions similar to those requested here, that the psychiatrist be chosen by both parties. As well, it submitted that its counsel and union representative should be present at the examination or consultation in order that they could object if inappropriate areas are being probed. The arbitrator denied those requests:

15 Having considered the matter, I am of the view that the Employer should be entitled to select the psychiatrist it wishes to advise its counsel for the purposes of cross examination and possibly give evidence on its behalf. In my view, it is entitled to have a person it has confidence in to provide that advice. Given that this is an adversarial proceeding, I am not persuaded that the Union is entitled to have a say in the selection of that person. There is no evidence to suggest that the psychiatrist selected by the Employer is unqualified or unsuitable for these purposes.

16 With respect to the attendance of counsel and the Union representative at the examination or consultation, I am not prepared to make that a condition to my order. In my view, such attendance would dramatically change the nature of the meeting from an examination or consultation into a hearing. I expect the Employer’s psychiatrist will act in a completely professional manner in this examination or consultation consistent with the professional standards and code of ethics he is governed by. If the Union has an objection to a particular area of inquiry, the appropriate time to raise that objection is when the Employer seeks to tender that evidence during the hearing. I note as well that no counsel or representatives were present during Dr. Cilliers’ examination or consultation with the grievor.

In Pope and Talbot, the employer applied for expert report, a work capacity evaluation, to determine the grievor’s fitness for work, to ensure a “fair hearing …. so that employer can fully and fairly present its case” (pp. 67-68), based on theUBC decision. The employer had determined that he was unable to perform the duties of his employment and terminated him. The grievor’s family physician opined that he was fit for certain duties. The union gave notice that it intended to rely on two reports by the physician. The employer took issue with the opinions, asserting that the prognosis was inconsistent with the diagnosis. The arbitrator distinguished UBC, among others, on the basis that the union, in that case, “agreed that there was considerable controversy surrounding the disputed medical report” (p. 69). He also found the medical reports to be clear and to the point. In any event, there was nothing to “indicate the sort of serious deficiencies described in UBC” (p. 69), and such matters as elaboration or clarification, should, “first be addressed through further information from Dr. Sebastian prior to the hearing or though cross-examination” (p. 70). He found that there was no evidence that additional information could not be had from the grievor’s physician, in whom the employer had had sufficient confidence in to obtain the first medical fitness report. Arbitrator Taylor denied the application for an independent evaluation on this basis (p. 73):

60 This case is about an employee who has been absent because of a work-related disability who wants to return to work. His doctor says, without equivocation, that he is fit to perform all entry-level jobs except that of strip-layer. The Employer contests the Grievor’s fitness to work. The authorities establish that as a general rule, the Employer does not have the right to require the Grievor to submit to an independent medical examination unless that right is provided in the collective agreement or conferred by statute. That does not apply here.

Arbitrator Taylor read UBC to be applicable: “where there is a substantive issue as to whether … a medical report is reliable,” a party is entitled to an independent medical examination (p. 68), and found that was not the case in the matter before him. He noted that in UBC, the union agreed that there was “considerable controversy” surrounding the medical report.

In Canada Post, the facts are summarized as follows:

1 I have before me the grievance of Ms. X, a postal clerk with some sixteen years service. Ms. X has been terminated form her employment pursuant to the provisions of Article 10.10 of the collective agreement for excessive innocent absenteeism. There is no dispute that her absenteeism has been excessive, such that the issue to be decided, in accord with the twofold test required to confirm a termination of employment for innocent absenteeism, is whether she is capable of maintaining regular attendance in the future. The union led medical evidence for the purpose of establishing that Ms. X suffers from depression, post traumatic stress disorder and an anxiety syndrome related to the post traumatic stress. The union called a general practitioner, who has both treated and counselled the grievor, for the purpose of establishing the diagnosis and the prognosis for eventual recovery. The union also intends to call the psychiatrist to whom Ms. X was referred and who assessed her condition. The company, upon being advised of the union’s intention to call the psychiatrist asked me to direct the grievor to submit to a psychiatric examination by a psychiatrist of its choosing. It is the position of the company that without the benefit of an examination by a psychiatrist of its choosing it would be at a severe disadvantage. The company maintains that such an order is necessary in order to ensure a fair hearing. The union, on the other hand, argues that the grievor’s privacy interest takes precedence and that, accordingly, I should deny the request of the company.

Following his review of, among others, arbitrator McColl’s UBC award, the arbitrator commented:

6 In a case such as this psychiatric evidence must be relied upon to determine whether or not the grievor suffers from post traumatic stress disorder, whether or not the effect is to render the grievor unable to work on a regular basis and whether or not the prognosis is for recovery. These determinations depend upon the opinion evidence of medical experts. The union here has called an attending physician and counsellor and intends to call the psychiatrist to whom the grievor was referred. …. The union also argues that because the medical evidence is clear and unambiguous there is no need to require such an examination and therefore, the privacy interest of the grievor must take precedence.

7 Given the nature of the issue (whether in the interests of a fair hearing the grievor should be required to undergo an assessment by a psychiatrist of the employer’s choosing) these submissions are misguided. The unfairness that must be addressed stems from the nature of the evidence pertaining to the grievor’s mental health. If one side has access to experts who have examined the grievor and the other side does not, an unfairness manifests itself in an inability to adequately understand the medical evidence as it relates to the individual, an inability to adequately cross examine on critical points and an inability to call contradictory evidence. This unfairness manifests itself regardless of whether or not the expert called by the union was retained by it and it manifests itself regardless of whether the evidence called by the union is in some way equivocal (which would be surprising). This is the case here. If the employer’s request is refused the union will have conferred with and called evidence from both a physician and a psychiatrist who have examined the grievor, while the company will be required to conduct its case without benefit of first hand medical knowledge related to the grievor. The result is an unfairness that must be redressed to whatever extent possible.

The arbitrator recognized the need to balance fair hearing requirements and the grievor’s privacy rights:

10 …. I observe firstly that the grievor has put her mental state in issue and the union has called or will call evidence of a very private nature. The grievor has recognized, therefore, that the resolution of the issue in dispute overrides her privacy interest. The union has called the grievor’s physician and intends to call a psychiatrist who has examined the grievor in support of its position that the prognosis for recovery is favourable. As noted, the evidence upon which the union intends to rely is complex in both a general sense and as it relates to this grievor. At the end of the day I will be required to render a decision based on the evidence before me. If I deny the employer’s request the evidence put before me by the union may well go untested because of the inability to the employer to effectively cross examine or to call contradictory evidence. This is a result that should not occur in an adversarial process where the weight of the evidence and the argument is determinative and where it is within the power of the adjudicator to level the playing field. Accordingly, I have decided that in the interest of a full and fair hearing the company’s request must be granted.

In Hastings, the grievance concerned an employee’s complaint that he had been placed on an unpaid suspension. He requested reinstatement. The grievor was a public health inspector. He asserted that he was unable to work in the sun and heat for extended periods and, therefore, unable to participate in certain duties. He submitted letters from his physician and a psychologist, which the employer did not find satisfactory. Prior to the commencement of the arbitration, the employer requested an IME by a psychiatrist chosen by it. The union submitted, among others, that it was premature and an unnecessary intrusion into the grievor’s privacy. The union also submitted that the arbitrator did not have jurisdiction to order the IME. The arbitrator concluded that he had the jurisdiction. He concluded, however:

33 The issuance of such an Order is somewhat of an extraordinary remedy because, unlike Orders for production, which compel one party to provide evidence already in their possession to the other party, an Order compelling a medical examination requires one party to create, or at least participate in the creation of, evidence intended to be used in an arbitration hearing, and this is done in order to ensure that the principles of fairness and natural justice are observed. ….

34 Secondly, the issuance of an Order compelling a medical examination is intrusive and an infringement on the grievor’s privacy. I accept that the grievor has put his medical condition at issue, but merely putting one’s medical condition at issue, should not, in and of itself, lead to the granting of a request for a medial examination. There are numerous instances in which an employee may present a medical note in order to justify an, absence from work, and each instance should not automatically trigger a right by the employer to have such employee examined by a medical practitioner of its choosing. I recognize that some arbitrators have suggested that an employer’s right to have a grievor examined by a medical practitioner of its choosing is not, in any way, dependent on the nature of the alleged disability, or the completeness or sufficiency of the existing medical reports. With this proposition I must respectfully disagree.

In the arbitrator’s view, merely putting one’s medical condition in issue should not,per se, result in the granting of an order for an IME. In his view, it is not determinative simply to state that an IME is required for cross-examination and to fairly present its case. Arbitrators must exercise discretion and balance the competing interests of the employee and the employer, having regard to the facts of each case.

In (“Overwaitea Foods”), from 2003, the employer’s application for an IME by a physician of the employer’s choice was rejected. The employer requested an IME, based on the right to a fair hearing relying on UBC. Unfortunately, the facts are not set out in much detail. It appears that the medical status of the grievor was relevant, involving accommodation of a medical disability. The employer argued that the grievor’s medical condition changed over time, and the medical evidence was uncertain and confusing. The employer also argued that the grievor, in effect, waived her privacy rights by submitting the case to arbitration. The union opposed the application and argued, among others, that it was predicated on the assumption that the employer was entitled to an IME for the sole purpose of instructing counsel and to prepare for cross-examination. Arbitrator Burke recognized that the examination of an individual by a physician chosen by another was a significant intrusion into the employee’s privacy rights, and that the interests of privacy and fair hearing must be balanced. She distinguished UBC as case where “there was considerable controversy surrounding the disputed medical report …. That is not the case here” (§ 18). The arbitrator reasoned that:

16 The principles relied upon by the Employer are articulated in cases dealing with the fairness issue in the hearing context. I find it useful however to also consider the jurisprudence in the return to work context. In each, a balancing and attempt to reconcile values and interests are evident. Fairness does not automatically require the ordering of a grievor to a third-party examination of the employer’s choice. Fairness must balance the concerns of privacy as set out above.

In the circumstances, it was not appropriate to order an IME “solely to refute an existing medical report even where the information is incomplete or inadequate” (Bowater Pulp and Paper Canada Inc. v. I.W.A. 1-80 (2000), 87 L.A.C. (4^th) 352). Balancing privacy and fair hearing rights, “the appropriate route to follow … is for the Employer to direct particular questions to the grievor’s physician to answer and assist its understanding of the medical evidence” (§ 20). Rather, “the arbitrator should consider referring questions or a request for better information” (§ 13). If the information is insufficient and inconclusive, the employer may seek additional information.

PNE concerned an application for an IME by a medical expert selected by the employer. The question before the arbitrator involved an issue as to whether the grievor was terminated or whether he voluntarily resigned his employment. The union’s position was that he was terminated, and it provided a psychologist’s report in support of its position that at the relevant time, the grievor’s mental condition diminished his ability to formulate the intention to resign. Arbitrator Sullivan concluded:

6 To the extent the Union has raised the Grievor’s medical issue in this case, and seeks to rely upon a medical opinion in support of its position on a key substantive matter, the Employer is entitled to have the Grievor undergo an independent medical examination. On the information before me, the case may well turn on the medical opinion to be proffered by the Union. By all accounts, the medical status of the Grievor is an essential element in these proceedings. To deny the Employer the opportunity to have the Grievor assessed independently would effectively constitute a denial of its rights to a fair hearing and natural justice. The Employer would have no way to obtain information, or otherwise be in a position to challenge or query important medical evidence raised and tendered by the Union…..

While the arbitrator eluded to the need for balancing the employer’s right to a fair hearing and the grievor’s fundamental privacy rights, there was no discussion of those issues. The employer’s application was granted.

In Elk Valley, arbitrator Lucas granted the employer’s request for an IME, based on the Chetwynd General and Canada Post. In Elk Valley, the grievor was terminated as a result of allegedly testing positive for cocaine following his involvement in an accident at the workplace and in breach of the employer’s drug and alcohol policy. The union indicated that it intended to rely upon medical evidence to establish the grievor was addicted to cocaine and therefore suffered from a disability, giving rise to the employer’s obligation to accommodate him by refraining from terminating his employment. The arbitrator concluded:

10 …. It is the Union who has indicated it will be relying upon the evidence of a medical expert to support its contention the Grievor is addicted that has given rise to the Employer’s argument it will be deprived of a full and fair hearing if it cannot have the Grievor examined by its own medical expert. By relying upon medical evidence to support the Grievor’s addiction, the Union has put his mental condition in issue and this is a circumstance in which it is appropriate the Employer’s request for a medical examination to be granted in order that a full and fair hearing will be conducted. The Employer’s prior conduct does not constitute a waiver of its right to request that I order the Grievor to submit to a medical examination by a physician of the Employer’s choosing.

11 There was also some suggestion by the Union that issuing an order compelling a medical examination is an infringement of the Grievor’s privacy. While this is true, it is the Union who has put his medical condition at issue and this gives rise to the need to balance his right to privacy against the Employer’s right to fairness and natural justice in the conduct of the arbitration hearing. In this case the Union seeks to rely upon medical evidence to establish the Grievor’s addiction and therefore suffers from a disability under human rights law meaning the Employer was legally obligated to accommodate him rather than terminating his employment. Accordingly, the issue of whether the Grievor is addicted to cocaine is a significant issue. Under these circumstances the Employer’s right to fairness and natural justice outweighs the Grievor’s right to privacy and he is therefore ordered to submit to a medical examination by a physician of the Employer’s choosing.

In Telus No. 2, the grievor had been extensively accommodated, since June 2004, by Telus for stress and medical problems. She was diagnosed by her physician and a psychiatrist as suffering from anxiety, depression and post-traumatic stress syndrome. In early June 2005 her physician advised that the grievor would be unfit to return to work until July 1. When the grievor did not return to work, the employer terminated her employment on the basis that she had not provided sufficient medical support for her absence. The union grieved the termination. The employer sought an order compelling the grievor to submit to an IME. The Union opposed the application for the order on several grounds. Arbitrator Beattie adopted the reasoning of UBC, as follows:

31 ….where there is a substantive issue as to whether or not a medical report is reliable in terms of its diagnosis or conclusions, and that issue is bound to be determined by an impartial tribunal, a party adverse in interest is entitled to have the benefit of an independent expert for the purpose of properly presenting its case to the impartial tribunal.

32 That passage was quoted with approval by Arbitrator Burkett in Canada Post Corp. and C.U.P.W. … which is a case somewhat analogous to the present case. …. Arbitrator Burkett’s reasoning on that issue commends itself to me.

In Telus No. 1, the grievor was terminated for excessive absenteeism. While there were both culpable and non-culpable reasons for the termination, the award referred to the non-culpable issues only. The employer asserted that the grievor was unable to attend work on a regular and consistent basis during the years 2004 – 2006. There was some evidence that the grievor had an addiction problem. He injured his foot in 2006. He was terminated in January 2007. For the arbitration, the Union obtained a report from a podiatrist regarding the grievor’s symptoms and whether there were any medical conditions, which would prevent him from regularly attending work in the future. Telus applied for an IME by an addiction specialist on the fair hearing principles. The union opposed the application, arguing that the employer had not demonstrated any nexus between the addiction and the excessive absenteeism, and that the IME applied for did not counter any of the union’s medical evidence. As well, by waiving privacy rights with respect to the foot issue, the grievor did not give up his privacy rights in another area. Arbitrator Brown reviewed the jurisprudence. He distinguished between two categories of cases: on the one hand, those dealing with “return to work,” and, on the other those dealing with fair hearing principles. From his review of the cases subsequent to UBC, arbitrator Brown distilled the principles applicable to the granting of an order for an IME in a “fair hearing” context:

34 If a party introduces expert medical evidence or has an expert testify, in order for the party adverse in interest to be provided with a fair hearing, a request by the adverse party for an independent medical examination is generally granted. This is so that the party can adequately address the expert medical evidence and cross-examine the expert witness.

He continued:

36 In the case at hand, the Union’s expert medical evidence relates to Harris’ foot injury. The Employer is requesting an order to have Harris undergo an independent medical examination with an addiction specialist; not another podiatrist. This is different from the above noted cases where the requests for independent examinations were granted by the arbitrators when the medical examination requested related to the same medical issue. In doing so, the arbitrators leveled the playing field so that both parties had medical evidence related to the same medical problem; thus providing a fair hearing. (Emphasis added)

In the circumstances, therefore, the employer’s application for an IME went “beyond the fair hearing principles. [The gievor’s] right to privacy outweighs the request (§ 39). The application was denied.

In my view, this case engages the fair hearing principles. The Union has obtained and intends to rely on expert psychiatric evidence, the report from Dr. Mallavarapu, who has examined the Grievor. As well, Dr. Mallaravapu, as I understand it, will testify at the hearing. Telus argues that it will be denied a fair hearing if is denied the opportunity to have its expert examine the Grievor. A useful starting point is the three questions posed in UBC: relevance, jurisdiction and exercise of discretion.

The parties agree that I have the jurisdiction to grant the order requested by Telus. Under sections 60 and 16 of the Canada Labour Code, arbitrators have wide-ranging powers to ensure a fair hearing. There is, as well, considerable case law to support my jurisdiction to make the order (see, for example, UBC,Telus No. 2).

With respect to relevance, to the extent that it is in issue, the Employer says it terminated the Grievor in October 2008, based on excessive absenteeism, having accommodated her to the point of undue hardship. She has been diagnosed with chronic depression, and the Employer considered that she was unable to attend work on a regular basis. The Union says, among others, that the Grievor suffered from a medical disability, known to the Employer since her date of hire. Her absenteeism, if any, was related to the disability, which Telus failed accommodate. With appropriate accommodation, she is capable of improved attendance in the future. In my view, the resolution of the issues raised by the parties may well turn, in part at least, on the medical evidence.

Moreover, the Union has obtained and submitted an expert report prepared by Dr. Mallavarapu, dated April 19, 2010, which it intends to rely upon in the hearing. Dr. Mallavarapu examined the Grievor, with her consent, on March 25, 2010. He also examined various medical records, including records provided by the Union and Telus. In his report, Dr. Mallavarapu states, among others, that the Grievor continues to “suffer from anxiety and mood swings. She remains disabled to return to work.” His conclusions include that the Grievor “is suffering from multiple emotional and physical problems. Her emotional problems include bipolar disorder II. [She] is going though a major depressive disorder with seasonal exacerbation through wintertime. [She] is also suffering from an anxiety disorder and panic disorder. [She] is also suffering from dyslexia.” The report notes that “Successful treatment … should improve her chances of attendance at work.” “Based on her present mental state it would be inappropriate for [her] to return to her previous employment.” Thus, while the Union argues that the relevant time for Telus to make inquiries into her medical condition was at the point of termination, and that it failed to do so, its expert report, on its face, clearly extends well beyond October 2008 into the Grievor’s “present mental state,” including her ability to return to her previous employment and suggested accommodation.

In the circumstances, in my view, there can be little argument that evidence of the Grievor’s disability is not relevant.

The real issue here, in my view, is whether I should exercise my discretion to grant the order for an IME of the Grievor by Dr. Hashman.

I accept the distinction between what has been characterized as the “return to work” and “fair hearing” cases, although the distinction may not be easily drawn. Echoing arbitrator McColl in UBC: “It may be that the distinction is artificial” (§ 45). He found it the most difficult of the questions of the questions he had to address in that decision. Indeed, UBC arose out of a “return to work” situation. Subsequent to UBC, arbitrator Craven found the “return to work” cases unhelpful to the determination of entitlement to an IME (Oshawa Foods, p. 403). In Telus No. 1, arbitrator Brown noted:

20 The parties agree further that the case law can be categorized into two types of cases. The first type of cases are those that address an employer’s right to require an employee to submit to a medical examination in order to enable a return to work after an absence or to deal with other matters such as accommodation issues. The second type of case relates to fair hearing principles. The case at hand falls into the second category.

In broad terms, the “return to work” cases hold that an employer does not generally have the right to require an employee to submit to a medical examination by a doctor chosen by the employer without a statutory or implied or express contractual right to do so (Oshawa Foods, p. 403, Pope and Talbot, p. 66, and Brown and Beatty, Canadian Labour Arbitration, Canada Law Book: Aurora Ont., 7:3230). In Elk Valley, arbitrator Lucas describes those cases:

9 … In advancing this issue the Union relies upon arbitration jurisprudence dealing with situations where the employer requires employees seeking to return to work after a period of illness or incapacity to provide medical evidence satisfactory to the employer, often through an examination by a physician of the employer’s choosing. In such cases most arbitrators conclude the employer cannot reject the medical evidence provided by the employee unless the employer is able to establish that evidence is unsatisfactory. In some other circumstances, if the employer has reasonable and probable grounds for suspecting the employee will be a source of danger to himself or others, the employer can either request the employee obtain additional information from the employee’s own doctor or make a consensual third party medical examination a condition of the employee’s return to work.

While the Union generally accepts the categorization by arbitrator Brown in Telus No. 1, it says that the principles applicable are the same. In my view, Pope and Talbot and Hastings, cases relied upon by the Union fall within the “return to work” category and may be distinguishable from the case at hand. In Pope and Talbot, the employer applied for a work capacity evaluation, to determine the grievor’s fitness for work, to ensure a “fair hearing” (pp. 67-68). The arbitrator described the case before him as a case about an employee who has been absent because of a work-related disability who wants to return to work, and whose physician, without equivocation, says that he is fit to perform all entry-level jobs. The Employer contested the grievor’s fitness to work. In Hastings, the grievance concerned an employee’s complaint that he had been suspended and requested reinstatement. He asserted that he was unable to work in the sun and heat for extended periods and, therefore, unable to participate in certain duties. InHastings, the question was the grievor’s ability to perform the job. The union did not intend to rely on a medical expert report. I do not agree with the Union’s submission that the principles that flow from those cases are the same. As noted by arbitrator McColl: “What is in issue … is a different concept altogether. It is the question of what amounts to a fair hearing.” Arbitrator Craven stated that the issue “is not management’s substantive rights under the collective agreement but rather a party’s litigation right to fairness in the adjudicative process” (Oshawa Foods, pp. 403-404).

The TWU submits that I must return to the basic principles in the UBC case. InUBC, the arbitrator emphasized that there was “considerable controversy” surrounding the report by the treating psychiatrist, and both parties agreed as much. Arbitrator McColl noted: “it is the confusion created by the treating physician … which gives rise to serious consideration of the employer’s application” (§ 50). He stated that it “could well be argued that where a medical report is clear, unambiguous and discloses sufficient information for an employer to be able to reach an objective conclusion as to the disposition of a certain case, then no additional medical evidence would be required” (§ 49). The requirement for “controversy” in the evidence, in that sense, found support in Pope and Talbotand Overwaitea Foods. The latter case, arbitrator Burke quoted UBC as follows: “I have exercised the discretion principally because, in my mind, the medical evidence as it presently sits is ambiguous, controversial and equivocal” (§ 11).UBC stressed the “heavy onus … to demonstrate the necessity for an outside opinion,” and that an order should not be made “willy-nilly” (UBC, § 49). InOverwaitea Foods, however, there was no expert report from the union, and the balancing of privacy interests and fair hearing requirements in that case, should be considered in that context. As well, the arbitrator found that the order was premature in the circumstances. As such, it may be distinguished from the case at hand.

In my view, at least to the extent that UBC stands for the proposition that that the medical evidence in question be “ambiguous, controversial and equivocal,” “confusing” or subject of “considerable controversy” before an IME should be granted, the more recent fair hearing cases have “overtaken” it. In Oshawa Foods, Chetwynd General, Canada Post and Telus No. 2, the arbitrators relied on the following from UBC:

I need not decide whether the law had shifted as suggested by arbitrator Brown’s summary in Telus No. 1. The order for an IME is in the arbitrator’s discretion, on the particular facts of each case. In my view, it is sufficient that there is “substantive issue as to whether or not a medical report is reliable,” and there is no need for the report to be “ambiguous, controversial and equivocal,” “confusing” or subject of “considerable controversy,” in order to allow an IME by a doctor of the employer’s choosing. As noted in Canada Post: “In a case such as this psychiatric evidence must be relied upon to determine whether or not the grievor suffers from post traumatic stress disorder, whether or not the effect is to render the grievor unable to work on a regular basis and whether or not the prognosis is for recovery” (§ 6). Decisions in cases of this nature depend upon the opinion evidence of medical experts. Frequently, such evidence is complex, both a general sense and as it relates to the Grievor, and is likely rarely equivocal. The Union here argues that there is no evidence of deficiency in the medical evidence in the sense considered in UBC. The Employer, on the other hand, questions the reliability of Dr. Mallaravapu’s report. There is nothing to suggest that these concerns or questions are not legitimate or bona fides. The Employer seeks its own expert evidence to counter the Union’s expert evidence. In my opinion, expert evidence of this nature is rarely equivocal, and even where it is, may well be subject of legitimate and bona fide disagreement. I reiterate that I make no findings of fact for the purpose of the hearing of the merits of this matter.

In my view, the Employer’s fundamental rights to a fair hearing must be balanced with the Grievor’s fundamental privacy rights, having regard to the particular facts of each case. Arbitrators are generally reluctant to order employees to undergo medical examination by physicians not of the own choosing. In my view, that is also reflected in the case law set out above. Almost universally, the cases stress the need to balance the employer’s right to a fair hearing with the employee’s privacy rights. It is, however, to borrow from arbitrator Starkman in Hastings, “axiomatic that in every case that an arbitrator is requested to make an order requiring a grievor to attend for a medical examination, the parties have been unable to agree on how this balance is to be struck”(§ 37).

I accept that a medical examination of a person, without his or her consent, by a physician chosen by another is a significant intrusion into that person’s privacy. That is even more so, as argued by the Union, in the case of a psychiatric examination. In his report, Dr. Mallavarapu states, among others, that the Grievor continues to “suffer from anxiety and mood swings. She remains disabled to return to work.” His conclusions include that the Grievor “is suffering from multiple emotional and physical problems. Her emotional problems include bipolar disorder II. [She] is going though a major depressive disorder with seasonal exacerbation through wintertime. [She] is also suffering from an anxiety disorder and panic disorder. [She] is also suffering from dyslexia.” In Wheeler v. White, [1983] B.C.J. No. 2494, decided under the Rules of Court, referred to by the Union, the master expressed doubts about the usefulness of an IME by a physician distrusted or feared by the person to be examined (§ 7). In that case, there was affidavit evidence to the effect that the plaintiff considered the expert to be prejudiced in favour of the defence. In this case, Dr. Hashman is qualified, and there is nothing to suggest that he is not suitable. I accept that the Grievor has been diagnosed with psychiatric disorders, and does not have trust in Dr. Hashman, having learned that he has an ongoing relationship with it. In short, there are very real privacy interests at stake here, and I accept that the examination by a physician selected the Grievor’s employer is a significant intrusion into those rights.

However, an arbitration is an adversarial process, based on the “assumption that truth is best discerned through this sort of evidentiary contest” (Canada Post, § 8). The Union has put the Grievor’s mental condition in issue by giving notice that it intends to call Dr. Mallavarapu and introduce his report, based on his examination of the Grievor. That evidence and the report will also intrude on the Grievor’s privacy. I recognize that Telus, as argued by the Union, kept comprehensive medical records with respect to the Grievor during her employment, including through its absenteeism management program, and it knew about her medical conditions. All the same, the IME requested may be necessary so that counsel can be properly instructed for the cross-examination of the Union’s experts, and for the preparation of the expert testimony it may decide to lead. I agree with Telus that I likely will be asked at the end of hearing to choose between the opinions of the Union’s medical experts, who have examined the Grievor, and the Employer’s expert who has not. Generally, the report from an expert, who has examined an individual, will carry more weight than the report from on who has not. In my view, deficiencies in the medical evidence may not, as argued by the Union, be adequately addressed in cross-examination. As noted in Canada Post, quoted above: “If one side has access to experts who have examined the grievor and the other side does not, an unfairness manifests itself in an inability to adequately understand the medical evidence as it relates to the individual, an inability to adequately cross examine on critical points and an inability to call contradictory evidence.” Thus, if I deny the Employer’s application, the evidence of the Union may well go untested because of the inability to the employer to effectively cross-examine or to call contradictory evidence. I am not satisfied, the circumstances, that directing the Employer to seek further or additional information from the Union’s expert, as suggested in Overwaitea Foods, satisfies the fair hearing requirements. The fact is that the Union has its own expert. This places the employer at a disadvantage, which is prejudicial to its right to a full and fair hearing.

In the circumstances of this case, I am of the view that the requirement that all parties to this proceeding, including the Employer, be granted a fair hearing must take precedence over the Grievor’s concerns about her privacy. As such, I find that an order that the Grievor be examined by Dr. Hashman is appropriate in the circumstances of this case.

I agree with arbitrator McColl that where an order for an IME is granted, the arbitrator in UBC noted, the arbitrator “should ascertain that the order made should contain provisions which as far as possible can protect that privacy” (§ 81). In UBC, the arbitrator directed that the grievor be examined by a psychiatrist agreed between the parties, and that the grievor was entitled to have his counsel or attending physician present at the interview. However, I reject the alternative submissions of the Union. Dr. Hashman’s has an established relationship with Telus is immaterial. Given the adversarial process, I adopt the reasoning inChetwynd, quoted above, that the Employer should be entitled to select the psychiatrist it wishes to advise its counsel for the purposes of cross examination and possibly give evidence on its behalf. In my view, a party is entitled to have a person it has confidence in to provide that advice. There is no evidence to suggest that Dr Hashman is unqualified or unsuitable for these purposes. There is nothing to suggest that Dr. Hashman will not act in a professional manner in the IME, consistent with the professional standards and code of ethics he is governed by. If the Union has an objection to a particular area of inquiry, the appropriate time to raise that objection is when the Employer seeks to tender that evidence during the hearing. In short, I reject the submission that the IME be conducted by a psychiatrist selected by the parties or by me. The Employer did not have its counsel or representatives present during Dr. Mallavarapu’s examination of the Grievor. While the Union sought the Telus’ agreement to have Dr. Mallavarapu, who has no prior relationship with the Grievor or the Union, appointed as a truly neutral expert, to conduct an IME, and that the Employer rejected that proposal. Telus wants Dr. Hashman, in whom it has confidence. I also reject the submission that counsel or other persons be present at the examination. In my view, the attendance of counsel or other party selected by the grievor would “dramatically change the nature of the meeting from an examination into a hearing” (Chetwynd, p. 192).

In short, I grant the application sought by the Employer.

ORDER

I direct that the Grievor undergo a medical examination by the psychiatrist selected by the Employer Dr. Kenneth Hashman in Vancouver on May 27, 2010. The Employer must pay the expenses associated with the examination, including any reasonable expenses incurred by the Grievor in attending the examination.

Vancouver, British Columbia

May 17, 2010

Decision – Independent Medical Report Ordered

Recent Decisions