Bank pays for denial of disability

Abandonment of position or a bona fide medical reason? As an employer, it’s up to you to find out
By Natalie C. MacDonald
|Canadian Employment Law Today

Look before you leap. That’s an expression employers will want to keep in mind when it comes to employees who suddenly develop a medical condition which prevents them from returning to work right away.

Too many employers react aggressively and automatically assume the employee has abandoned his position rather than taking the time and effort to determine the scope of the problem. When the employer makes such a leap, failing to inform itself of all the circumstances surrounding the employee’s reasons for absence from the workplace, it could be held liable.

This was exactly the case in a recent decision of the Ontario Court of Appeal in

Montague v. Bank of Nova Scotia

.

Yvonne Montague was employed by the bank as a data entry operator for more than 15 years. On Aug. 13, 1990, she fell and injured her right shoulder at work. She was off until Jan. 2, 1991, when she returned to a modified work schedule, approved and recommended by her doctors.

Shortly after, on Feb. 18, 1991, she fell again and injured her lower back at work. Consequently she remained off work until April 15, 1991, returning to a modified work schedule. Unfortunately, as a result of the various injuries, she was unable to maintain this schedule and stopped work altogether on April 30.

She applied for long-term disability (LTD) benefits. But the bank, which was the administrator of the LTD plan, denied her benefits because of inadequate medical information. On July 8, 1991, it wrote to Montague to advise her that it expected her to return to work no later than July 22, 1991, failing which she would be treated as having abandoned her employment.

In addition the letter specified that she could appeal the decision if she provided further medical documentation. It is important to note the bank already had a number of medical reports concerning Montague from her own doctors and doctors whom the bank had requested she see.

On July 8 Montague wrote to the bank advising she had made two appointments with other physicians to whom she had been referred and that one appointment was scheduled for July 12 and the other for July 23. She added that reports would be submitted from each of these doctors to the bank.

The bank replied on July 24 and terminated her employment. In the termination letter there was no reference to her July 8 letter, nor did the bank inquire as to what Montague had learned from the two doctor appointments. At the time of termination, she was earning an annual salary of $24,750, a bonus and benefits. She launched an action for wrongful dismissal.

At trial the judge found Montague was entitled to a 12-month period of reasonable notice which was augmented by four months of punitive damages for intentional infliction of mental suffering. In the trial judge’s words:

“In all of the circumstances, I have no difficulty whatsoever in finding the bank acted precipitously and in bad faith. It did not treat the plaintiff fairly in the manner of her dismissal. Mrs. Montague, at no time, took any action which suggested abandonment of her employment. On the contrary, she was in continuous contact … about her disability, which she claimed needed to be accommodated. Her summary dismissal by letter in view of the pending medical visits to the knowledge of the defendant was unreasonable, and the position taken that she had abandoned her job was, in the circumstances, quite preposterous.”

Therefore she was awarded 16 months’ compensation in lieu of reasonable notice, a decision upheld by the Ontario Court of Appeal.

There can be no doubt that in this particular case, given that the bank had clear knowledge that this long-term employee was about to attend further medical appointments and would provide further medical information, in summarily dismissing this employee it acted as though it never had such knowledge. This was the reason the court awarded the fourth-month extension of the notice period.

In cases where employees, particularly long-service employees, have raised issues concerning medical problems, it is especially important that employers find out what the problems are and what the potential prognosis is. Ignoring cogent letters from employees advising of this, or medical documentation, can only lead to problems.

For more information see:

Montague v. Bank of Nova Scotia

, 2004 CarswellOnt 11, 30 C.C.E.L. (3d) 71 (Ont. C.A.)

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or nmacdonald@grosman.com.

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