July 12, 2013
27.4.104
Background
On September 22, 2004, the grievor, a Regional Hydrologist in City X, was carrying out field work at a remote site in one of the Canadian Territories, and was attacked by a grizzly bear. Since 2004, the grievor has been provided with medical, shock, and other counseling services, however the whiplash-type effects (back and neck pain) have persisted. From May 18, 2006 until May 22, 2010, the grievor received chiropractic treatment in City Y.
On August 5, 2010, the grievor sought prior approval for an extended week-long series of treatments occurring in September 2010 (potentially requiring repeated travel), and to have his medical travel expenses covered. As ongoing chiropractic treatments were excluded under the Directive, the Department denied the request. The Department referred him to the Territorial Government Health Care Plan as an alternative way for coverage as prescribed in the NJC's IPGH Committee's Non-Elective Medical/Dental Travel Assistance Benefit Communiqué in effect at the time. The Territorial Health Care Plan however, denied his claims. From September 13 to 17, 2010, the grievor received the week-long chiropractic treatments in City Y.
On December 9, 2010, the grievor asked the Department to reconsider the request for the September 2010 Medical Travel expenses, and was informed verbally that the request was denied. A revised NJC IPGH Non-Elective Medical Travel Communiqué was published on February 23, 2011, with a modified Exclusions section to now include medical travel expenses for cases similar to the grievor's. As a result, the medical travel claims submitted by the grievor after February 23, 2011 were accepted. In March 2011, the grievor then proceeded to make several requests for the reimbursement of the September 2010 medical travel expenses. All requests were denied, on the basis that the expenses were incurred prior to the coming into force of the revised Communiqué and were not covered. On April 5, 2011, the grievor filed a grievance requesting that the Employer reimburse expenses incurred for the September 2010 medical travel.
Bargaining Agent Presentation
The grievor's job required taking samples in the field, and on September 22, 2004, the grievor was mauled by a grizzly bear while working in a remote area in the North. The grievor suffered several injuries most of which were easily identifiable and treatable. However, in 2006, severe whiplash which resulted from the charging bear was discovered and the grievor had to undergo several treatments for which coverage was denied by WCB. The form of intensive chiropractic sessions the grievor requires was not offered in City X; therefore, he had been obtaining the treatment in City Y. The Bargaining Agent representative specified that the grievor obtained this treatment before 2010 but did not make claim to the department, as the grievor assumed that WCB would pay for the treatment. When the grievor's appeal to WCB was denied, the grievor made claim to the Department.
The Bargaining Agent representative indicated that the grievor submitted an advance travel authority in August 2010 to travel to the next appointment in September 2010. The grievor was advised that he had to attempt to have the travel expenses paid by the Territorial Government. The Territorial Government denied the request.
In December 2010, the grievor applied to the Department for reimbursement for the September 2010 travel, and provided the required medical certificate confirming that the treatment was not elective, not available in City X and required without delay. The Bargaining Agent representative maintains that the Department did not contact the grievor about the status of the request. On March 4, 2011, the grievor met with the HR representative, who indicated that the upcoming claim for medical travel in March 2011 would be covered, whereas the September 2010 claim would not be, as the new Communiqué was not in effect in 2010. The Bargaining Agent representative noted that the medical travel in September 2010 and the travel in March 2011 were for the same purpose, and that the Directive did not list any exclusion. The Bargaining Agent representative noted that the HR representative based the denial of the request on point 4 of the "Exclusions" in the Communiqué dated February 6, 2009 ("for ongoing therapy appointments (…) chiropractic (…) (Collective Agreements, PSHCP / provincial / territorial health care would apply to these situations"). The Bargaining Agent representative maintained that the intent of the Communiqué was to ensure that treatments covered elsewhere would be claimed under other authorities, which was not the case. Furthermore, the Bargaining Agent representative referred to the February 23, 2011, Communiqué which clarified that travel for ongoing treatments resulting from a workplace accident where a workplace safety insurance plan or collective agreement or provincial/territorial health care agreements apply are excluded, which was not the case for the grievor. The Bargaining Agent representative reiterated that Communiqués are intended to clarify the intent of the directives and that they do not have an effective date; therefore, it was never the intent of the Directive to deny coverage where no workplace safety insurance plan nor collective agreement nor provincial/territorial health care agreements apply. The Bargaining Agent representative noted that the Directive forms part of the collective agreement, which is not the case for communiqués.
In conclusion, the Bargaining Agent representative noted that the grievance should be upheld based on the Directive effective August 2007, and that as per the February 2011 Communiqué, the medical trip met the criteria for coverage.
Departmental Presentation
The Departmental representative indicated that further to the incident, the grievor was absent from the workplace from September 22, 2004, until March 3, 2005, before returning to full time position on March 8, 2005. In 2006, the grievor started receiving chiropractic treatment in City X, almost two years after the work accident. The grievor was then referred to a chiropractic clinic in City Y, where Pettibon-style chiropractic treatments began on May 18, 2006, to serve as remedial treatments. It was noted that these treatments were performed by a non-certified Pettibon chiropractor. The grievor had been travelling to the City Y clinic three times per year for the treatments.
The Departmental representative specified that in 2006, the grievor sought coverage for the expenses for chiropractic treatments associated with the work injury. However, the WCB considered the grievor fit to work; therefore WCB's involvement was at an end.
As the expenses were not covered by WCB, the grievor submitted a Travel Authority and Advance form to the Department on August 5, 2010, for reimbursement of the medical travel expenses under the IPGHD. The Departmental representative maintained that the IPGHD was applied correctly by management when it refused to reimburse the grievor as the Communiqué dated February 6, 2009, expressly identified chiropractic ongoing therapy appointments in the "Exclusions" section and suggested other means of reimbursement. The Departmental representative contended that the Department did not have the authority to reimburse the claims at the time of the request. Further to this, the grievor contacted the Government of the territory asking coverage of the expenses under the territorial health care system. The request was denied on the basis that elective chiropractic procedures are not covered under the territory's health insurance program. The grievor then asked the Department to reconsider the request, which was denied.
The Departmental representative explained that accommodation has been provided to the grievor, such as time off for treatments and for visits to attend WCB hearings, without being deducted from the sick leave credits. The representative noted that the new Communiqué issued on February 23, 2011, superseded the one issued on February 6, 2009. As a result, the medical travel expenses for ongoing treatments were refunded as of February 23, 2011, as they resulted from an injury on duty.
The Departmental representative concluded that the grievance was denied based on timeliness and merits as both the first and the second level. In the Employer's view, the grievance should have been denied based on timeliness at the final level as well as it was presented at the first level later than the 25th day after the grievor was notified of the denial of the request, on August 9, 2010. However, as the timeliness issue was dismissed by the NJC Executive Committee, the Employer representative is of the view that the employee was treated within the intent of the Directive at the time the grievor incurred expenses for the medical travel; accordingly, the grievance should be denied based on its merits.
Executive Committee Decision
The Executive Committee considered the report of the Isolated Posts and Government Housing Committee and noted the impasse. The Executive Committee considered the information and circumstances in this grievance and agreed that given that the grievor's treatment was for the same ongoing medical condition that spanned both the February 2011 and the October 2011 Communiqués, yet the same Directive remained in effect during this time; the grievor should be entitled to reimbursement. As such, the Executive Committee upheld the grievance.