Meleshko v Alberta, 2012 ABQB 787

Court of Queen ’ s Bench of Alberta Citation: Meleshko v Alberta, 2012 ABQB 787 Date: 20121231 Docket: 1203 08755 Registry: Edmonton Between: Ronald Meleshko Applicant - and - Her Majesty the Queen in Right of the Province of Alberta and the Great-West Life Assurance Company Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.D. Acton _______________________________________________________

Introduction [ 1 ] Ronald Meleshko is a single parent, 53 years of age, living in Edmonton. He is an employee of the Government of Alberta and was employed by the Auditor General from August 2000 until he became disabled in 2007, suffering from a number of medical conditions, including chronic pain syndrome, fibromyalgia, sleep apnea, osteoarthritis, carpal tunnel syndrome, hand and feet numbness, fatigue, bowel and urinary urgency, lymphedema causing swelling in his legs, Bell ’ s Palsy, hypothyroidism, allergies, asthma, and cardiac irregularities.

No one in this judicial review has argued that he is not disabled; instead the issue here is that Mr. Meleshko ’ s disability benefits were terminated because his case manager determined that he had failed to participate and cooperate in a rehabilitation program. That determination occurred after Mr. Meleshko failed to attend a series of three appointments scheduled with an independent health services company in Calgary over two days, April 5 and 6, 2011. Facts [ 2 ] The Government of Alberta self-funds its Long Term Disability Plan (the Plan) for its employees.

Because this is a government plan, it does not take the form of an insurance contract, as in most LTD plans. This Plan is provided for in an unpublished regulation, Public Service Long Term Disability Income Continuance Plan Regulation (the Regulation), under the Public Service Act , RSA 2000, c P-42. Great West Life (GWL) administers the plan on behalf of Alberta according to the terms of the Regulation. The Regulation provides for an appeal of a claims manager decision to an adjudicator, and from an adjudicator to an Appeal Board.

An agreement between Alberta and GWL provides that claims managers will provide services as “ adjudicators ” under the Plan. Because of this statutory and regulatory structure, an employee may only seek judicial review of a decision by the Appeal Board to deny an LTD claim, and cannot sue in contract. Relevant provisions of the Regulation are attached as Appendix A to these reasons. [ 3 ] Mr. Meleshko was approved for benefits under the LTD Plan in October 2007. All of his medical conditions are documented in the filed Record, with medical evidence of treating physicians, including evidence from Dr.

Sollereder, November 2008 that Mr. Meleshko was unable to perform even day-to-day activities at home. While on disability benefits, he actively pursued treatment for his multiple medical conditions, and as recently as December 19, 2011, one of Mr. Meleshko ’ s treating professionals described his condition as deteriorating. [ 4 ] The Record is lengthy and indicates that from 2007 to 2010, Mr. Meleshko and GWL communicated reasonably well, both over the phone and by mail. There are call records by various GWL case managers, followed up by letters either from Mr. Meleshko or the case manager.

There are call records of Mr. Meleshko contacting a case manager and of Mr. Meleshko returning messages left for him by a case manager. The Record also reveals Mr. Meleshko attended a variety of medical professionals for treatment and provided that information to his case managers. [ 5 ] In 2010, GWL decided to pursue an independent assessment of Mr. Meleshko ’ s claim through Odyssey Health Services; part of that analysis included an estimate of the cost of the claim were he to continue to be disabled until retirement.

Further, the Record contains communications between GWL and Alberta Human Resources discussing whether to fund an independent assessment in which they acknowledge Mr. Meleshko has “ a very significant medical condition ” and he “ can barely handle his activities of daily living, and rarely even leaves his home. ” Odyssey ’ s file review of Mr. Meleshko, also in the Record, suggests he might benefit from a comprehensive interdisciplinary assessment, and suggests they would arrange for the primary therapist to meet with Mr. Meleshko, “ ideally in his home environment ” .

A later call record (January 21, 2011) between a GWL case manager and Odyssey, however, suggests an initial assessment would take place in Calgary. Mr. Meleshko ’ s case manager at the time wrote him in February 2011 that GWL had retained Odyssey and Odyssey would be contacting him to

schedule an assessment. The Record indicates Mr. Meleshko spoke both with a GWL case manager and with a representative from Odyssey, asking for written information about the process. He expressed concern to the case manager about the need and purpose of the assessment. Some of the information he requested was provided to him. He also wrote GWL on February 25, 2011, setting out his concerns about the assessment process and asking that all instructions to him from GWL be in writing. [ 6 ] At this point, Mr. Meleshko became more difficult to contact.

Odyssey called him on February 17, 22, 24 and 28, but was unable to leave a message. As a result, Odyssey wrote him March 1, 2011, unilaterally setting up three appointments for the

assessment, all in Calgary, on April 5, 2011 and April 6, 2011. One of the appointments was for 8:30 pm on April 5 and another was for 8:30 am the following morning. Mr. Meleshko did not respond to that letter until March 18, 2011 (received by Odyssey on March 24, 2011 and copied to GWL), and he indicated he could not attend an appointment scheduled in the evening of April 5 because he needed to be home to put his child to bed and to sleep himself. Further, he indicated the early morning appointment the next day would not be possible because of child care responsibilities.

He indicated he could participate in assessments that took into account he was only available between 8:30 am and 4:30 pm, inclusive of travel. He expressed a preference for having the assessment done in Edmonton. [ 7 ] A new GWL case manager, Gregory Hayduk, was appointed and he responded to Mr. Meleshko ’ s February 25 letter on March 14. He wrote a further letter on March 24, 2011. The tone of this letter is, in my opinion, confrontational. Mr. Hayduk refers to s. 8(5) of the Regulation, indicating that refusing to participate in rehabilitation could lead to termination of Mr.

Meleshko ’ s benefits, and requires him to contact Odyssey to confirm he will attend the scheduled appointments. Mr. Meleshko did not call Odyssey, and Odyssey and GWL then attempted to courier further letters to Mr. Meleshko; he refused to accept the courier mail. Mr. Hayduk wrote a further letter dated March 24, 2011, advising Mr. Meleshko his attendance at the April appointments were mandatory and if he failed to attend, his LTD benefits would be suspended and terminated. Mr. Hayduk ’ s letter does not respond to Mr.

Meleshko ’ s concerns, set out in his letter of March 18, 2011, about the timing of the appointments, but a call record for March 24, 2011 indicates he discussed these concerns with the Odyssey representative, saying: “ childcare issues are non-medical barriers to EE [employee] attending assessments. EE is still required to attend assessments when requested by GWL ” ; “ Reasonable accommodations can be made in regards to EE ’ s non medical barriers, but EE is required to participate and benefits will be suspended if EE does not attend as scheduled... ” . [ 8 ] Mr.

Meleshko did not attend the April 5 th or 6 th appointments. [ 9 ] By letter dated April 7, 2011 Mr. Hayduk informed Mr. Meleshko that his benefits were suspended, and if he did not contact Odyssey Health by phone to make alternative arrangements for the assessment, his claim would be terminated on May 5. Mr. Hayduk asserted that Mr. Meleshko had failed to participate and cooperate in a rehabilitation program as required under the Regulation, and provided him with 30 days to “ become compliant with [the] rehabilitation program ” . Mr. Meleshko wrote to Mr.

Hayduk on April 18, 2011 and on May 4, 2011 with two requests. First asking for an accommodation to be made for his disabilities regarding such assessments and second, asking that communications be in writing in order that communications could be reviewed by his legal counsel. Mr. Hayduk responded by letter on April 27, 2011, but did not address Mr. Meleshko ’ s concerns, and only stated that unless he contacted Odyssey by May 5, 2011, his LTD claim would be terminated. [ 10 ] Mr. Hayduk ’ s next response was a letter dated May 6, 2011 advising Mr.

Meleshko ’ s claim was terminated for “ failure to participate in a rehabilitation program ” pursuant to s 8(5) of the Regulation. On June 2, 2011, Mr. Meleshko filed a Notice of Appeal appealing that decision. The first level appeal [ 11 ] An adjudicator decides the first level of appeal, and Mr. Hayduk, the case manager, served as the adjudicator for Mr. Meleshko ’ s appeal. Before he rendered a decision on the appeal, he wrote Mr. Meleshko a letter, dated July 15, 2011.

This letter appears to be an attempt to resolve the appeal, but it also sets out the basis for the suspension of benefits and termination of his claim. The letter is odd; it starts by stating he has received the Notice of Appeal, as though he is writing in the capacity of adjudicator. The second and third paragraphs appear to argue the justification of his actions as the case manager. The fourth paragraph sets out Mr.

Meleshko ’ s alleged failures to attend the “ required assessments ” and to “ your willingness to communicate verbally with both Odyssey and Great West Life ” . (I note that this is the first indication that the question of oral communication was part of the decisions to suspend benefits and terminate the claim). The letter then purports to set out terms under which Mr. Meleshko could have his LTD claim reopened. The terms required Mr. Meleshko to confirm his agreement in writing to the following:

You would be expected to attend any assessment appointments required by Odyssey Health Services. You would also be expected to communicate on a regular basis with both Odyssey Health Services and Great West Life by telephone. Should you not have access to a telephone a cell phone can be provided for you for this sole purpose. [ 12 ] The penultimate paragraph of the letter makes it clear that Mr.

Hayduk is hearing the appeal and notes “ If you choose not to participate under the above conditions please provide whatever information you wish to submit in support of your appeal... this information will be reviewed in conjunction with all the information currently on file and a decision made regarding your appeal. ” [ 13 ] On September 6, 2011, Mr. Hayduk, in his role as adjudicator, issued a first level appeal decision upholding his initial May 6, 2011 decision to terminate Mr. Meleshko ’ s claim on the basis of Mr.

Meleshko ’ s failure to attend the Odessey Assessment in Calgary “ as no information has been submitted from you indicating your willingness to participate in a rehabilitation program. ” The second level of appeal [ 14 ] On September 29, 2011, Mr. Meleshko filed a Notice of Appeal of the first level of appeal to the second level of appeal before the Alberta Public Service Long Term Disability Second Level Appeal Board (the Appeal Board) . Written briefs were filed and Mr. Meleshko attended with an advocate, Mr. John Wodak, and Mr. Hayduk attended as representative for Alberta and GWL. [ 15 ] Mr.

Meleshko applies for judicial review to this Court to have the decision of the Appeal Board partially quashed, a portion of the decision affirmed, and asks for a Writ of Mandamus to reinstate his disability benefits which the Board found the adjudicator had wrongfully terminated on April 5, 2011 in part of their March 16, 2012 decision. The conclusion of the Appeal Board appears at p. 1039a to 1041 of the Record.

The Board sets out first the employee ’ s responsibilities as follows: Once Great-West Life approves your claim, you are responsible to • Be available for a work assessment or a rehabilitation program or a medical examination, if required. • Notify Great-West Life and your ministry of your whereabouts if residing away from your normal place of residence. • Provide updated medical information as required. • Follow treatment as prescribed by licensed physicians. • Apply for CPP Disability Benefits within 12 months of being placed on LTD. • Report all income from any employment, self-employment or any other sources. • Seek alternative employment where necessary. • Participate in a rehabilitation program, if requested.

[ 16 ] In addition, the Board considered s.8(5) of the Regulation: If an employee refuses or willfully fails to participate and cooperate in a rehabilitation program, the adjudicator may determine whether the employee is eligible to receive or continue to receive benefits. [ 17 ] The brief decision then goes on to comment on Great-West Life ’ s power and authority to make a finding on the basis of the grounds for appeal that Mr. Meleshko was wrongfully terminated from his long-term disability benefits on April 5, 2011. They expressly state in their decision, “ Mr.

Meleshko is entitled to LTDI benefits from April 5, 2011 to July 15, 2011 ” . [ 18 ] The Board moves on to find: Effective July 16, 2011, Mr. Meleshko was in contradiction of the Public Service LTDI Continuance Plan Regulation

Part 3, Section 8(5) and was noncompliant by refusing to cooperate and participate in the designated rehabilitation assessment. [ 19 ] From that, one must infer that the Board concluded it was reasonable for the Respondents to deny Mr. Meleshko ongoing coverage from July 16, 2011 forward since he has not been receiving it. [ 20 ] The Applicant ’ s position is that there was nothing in the appeal by either party pertaining to this general issue of Mr. Meleshko ’ s failing to comply with s. 8(5) of the Regulation after the May 6 decision.

It is conceded by all parties that this decision came as a surprise to all of the parties, but was welcomed by the Respondents who appear on this Judicial Review. Issues [ 21 ] The issues are: 1. Did the Appeal Board have the jurisdiction to terminate Mr. Meleshko ’ s benefits as of July 16, 2011? 2. If the Board had the jurisdiction, did the Board ensure that procedural fairness was followed both under the law and in terms of their own defined procedures? 3. Was the Board ’ s decision reasonable? Issue 1: Did the Board commit a jurisdictional error?

Standard of review [ 22 ] The Supreme Court of Canada in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 held that the standard of review of a jurisdictional question is correctness: Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires... "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry . In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular

matter . The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction. (at para. 59) (Emphasis added) Is this a jurisdictional question? [ 23 ] The Applicant submits that once the Appeal Board rendered its decision on the issue under appeal, that is the decision of May 6, 2011 to terminate the claim, it had exhausted its jurisdiction. The Applicant argues the Appeal Board, by looking ahead to Mr.

Hayduk ’ s July 15 offer to resolve the matter and then deciding that no benefits were payable after that date, was effectively making a decision that should have been made at first instance by the case manager and then subject to the first level of appeal, the adjudicator. [ 24 ] The Applicant submits there must be an identifiable decision from which the appeal is being taken and that is all the Board can consider. While the Regulation provides the Board can take into account new information, the Applicant states such new information must be relevant to the appeal: 681210 Alberta Ltd. v. Hunter , 2012 ABCA 83 .

An appellate tribunal does not have jurisdiction to look at anything, and all things, in a file, but rather must focus on the decision from which the appeal is sought. [ 25 ] The employee has, in this case, two levels of appeal. First to the adjudicator and then to the Appeal Board. The Applicant submits if the Appeal Board makes a decision in the first instance, the employee loses a level of appeal. This is important because this Regulation replaces what would normally be a contract of insurance.

Accordingly, these levels from adjudicator to first level of appeal to appeal to the Appeal Board can go only to judicial review, and, if need be, to the Court of Appeal, rather than to a civil trial with full procedural rights. Those rights have been supplanted by statutory replacement of the contractual rights in these cases thus, making these statutory steps even more important. Thus, when the Appeal Board eliminates a step, the Applicant loses his ability to make his argument and provide evidence on the issue with no notice to him or, for that matter, to anyone.

This Court was directed to examples of errors of fact made by the Appeal Board in correspondence from the appellant to the adjudicator, as evidence that the Applicant could have adduced had he known this issue would have been in play. [ 26 ] In 681210 Alberta Ltd the Court of Appeal, quoting Civil Appeals (Toronto: Canvasback Publishing, 2009) at para 10:4210 by Donald J. M. Brown, noted the following (at para 26): The general rule is that where a ground of appeal was not raised in the pleadings or considered by the trial judge, it cannot be a ground of appeal.

An exception to the general rule may be made, however, if three requisites are met. First and foremost, there must be “ no doubt ” that further evidence would not have been adduced had the new ground raised below. [ 27 ] Second, to permit the new argument must not cause “ procedural prejudice ” to the opposing party. And third, a refusal to permit the new argument to be raised must not result in an injustice. Furthermore, the burden of establishing that these requirements have been met lies with the parties seeking leave to raise the new ground of appeal (para 26).

As I said, all parties were surprised that this matter was decided by the Board and certainly neither Alberta nor GWL raised this matter on appeal. [ 28 ] The Appeal Board relied heavily on the letter of July 15, long after the decision from which Mr. Meleshko was appealing had been made to terminate his benefits. The letter was written after he filed his appeal and did not relate to the termination of his benefits on April 5, 2011. In Lastiwka v. Alberta Blue Cross et al , 2000 ABQB 892 , Justice P.L.J. Smith had a similar fact situation, although in a trial under a group disability insurance policy.

In her case, after the Plaintiff ’ s benefits were terminated there was a conversation in which the Plaintiff claimed to be sick with the flu and was thus failing to cooperate with the insurer under terms of their policy sections. Justice Smith commented that the conversation after termination was not probative because the conversation took place after the decision to terminate benefits was made and communicated to the Plaintiff. [ 29 ] I conclude that this is a true question of vires and jurisdiction.

The parties did not raise a “ new issue on appeal ” ; the only issue on appeal was correctly stated by the Appeal Board (at p 10):

Effective April 5, 2011, did Mr. Meleshko place himself in contradiction of the Public Service LTDI Continuance Plan Regulation - part3 Section 8(5) by refusing or willfully failing to participate and cooperate in a rehabilitation program? (Emphasis added) And on p 11: What the Board must determine is whether or not Mr. Meleshko was justified in failing to participate in the interdisciplinaryrehabilitation program scheduled to begin on April 5, 2011 in Calgary, Alberta. (Emphasis added) [30] The Appeal Board’s fairly short reasons concluded: The Board accepts Mr.

Meleshko’s arguments that it would have been very difficult for him to travel to Calgary to attend theassessments. However, the Board finds that effective July 15, 2011, it was reasonable for Mr. Meleshko to attend any assessments thatwould be held in Edmonton. We further find that with the offer of a cell phone, Mr. Meleshko does not have a valid reason for notcontacting GWL and Odyssey health Services and cooperate in making arrangements for him to participate in the assessment. (Emphasis added) [31] In my view, given the issue before it, the Appeal Board’s jurisdiction ended with its first sentence.

It had nojurisdiction to consider whether benefits should have been terminated at some other date. That was a decision to be made by the casemanager. [32] Accordingly, I conclude the second finding of the Appeal Board was made without jurisdiction and is quashed. As aresult, the Appeal Board’s decision inferentially determined the adjudicator erred in suspending and then terminating benefits as of April5, 2011 and Mr. Meleshko is entitled to benefits from that date forward. Issue 2: The Issue of Procedural Fairness [33] Mr.

Meleshko was given no opportunity to address whether he had breached his duty under s. 8(5) of the Regulationby refusing to agree to the terms in the July 15 letter. Certainly, if the Board had decided they wanted to deal with this particular issue,both Mr. Meleshko and Alberta should have been given an opportunity to address this particular issue in direct submissions.

If it werenecessary, I would find he was not granted procedural fairness, and would quash the portion of the decision dealing with allegationsarising from the July 15 letter on that basis. [34] While Great-West Life provided to the Board a chronological time line to which the Board referred, one cannot usethat to say Mr. Meleshko had notice such a time line was going to be used to set up a finding by the Board of a breach of a statutory duty.The duties of procedural fairness are identified by Justice L’Heureux Dube in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817.

They are summarized in the Principals of Administrative Law , 5th Editionby Jones and DeVillars (Toronto: Carswell 2009) (at p 256 - 257). Briefly summarized, they are as follows: 1. The closer the administrator of the decision is to a judicial decision, the more procedural protections arise. 2. The type of statutory scheme that is involved and the role of decisions in the statutory scheme determines whether greaterprocedural protections are required.

3. The importance or impact the decision has on the individual, for example, a high standard of justice is required when the right to continue in one ’ s profession or employment is at stake and from high standard of justice to “ stake ” . [ 35 ] On the first factor, this is a claim that would normally be found in a courtroom commenced by Statement of Claim under a contract of insurance. It would therefore be subject to the full procedural fairness of a trial and all of the rights attendant upon that.

Therefore this would have a high level of procedural fairness attached to it and one would expect this to be incorporated into the statutory scheme that replaces or removes this contractual right. Secondly, the statutory scheme establishes levels of appeal and requires written submissions, thus indicating that there is a strong duty of fairness, as does the composition of the Appeal Board, with nominees from both employer and employee. Further, this is a case where the decision is of critical importance to the Applicant. Mr.

Meleshko is significantly disabled and this disability income is his livelihood, thereby imposing a strong duty of fairness on the Appeal Board. [ 36 ] The Board itself sets out the procedures for handling the appeal. It must first identify the reason for appeal (i.e. the issue in dispute). Discussion may follow if clarification is required. Agreement of all parties on the issue of appeal is required.

In the Appeal Board observes “ Since this is the final level of appeal, it is important that the Appellant has had the opportunity to fully address the appeal issues before the Board, prior to the close of the Hearing ” . Issue 3: Was the Board ’ s decision reasonable? [ 37 ] If I am wrong, and this was not a jurisdictional question, I will go on to consider the reasonableness of the decision. This analysis is necessary in light of the decision in Alberta (Information and Privacy Commissioner) v.

Alberta Teachers' Association, 2011 SCC 61 , [2011] 3 SCR 654 , in which Rothstein J, for the majority of the Court, discussed the rarity of true jurisdictional issues and questioned whether true questions of jurisdiction exist for the purposes of judicial review (at para 34). The respondents here argued the Appeal Board had the jurisdiction to consider the entirety of the record before it, including the July 15 letter, because the nature of long term disability claims are “ organic ” in nature.

A person ’ s well being changes from day-to-day, from time-to- time, and that is why ongoing assessments and information are necessary to determine ongoing eligibility under the statute . [ 38 ] The Respondents submit the Applicant had an obligation to cooperate by acceding to the proposals set out in GWL ’ s letter of July 15 and emphasize the efforts GWL made to encourage the Applicant to cooperate with them. However, if one reads the tone of the correspondence from GWL, one gets an entirely different picture of the evidence.

Beginning with the change in case manager after the decision was made to retain Odyssey, there arose a confrontational atmosphere that lead to a lack of trust on the part of Mr. Meleshko. [ 39 ] In my view, the decision of the Board is unreasonable. First, as of July 15, 2011, Mr. Meleshko ’ s LTD claim had been terminated. It was therefore unreasonable to conclude he had any obligation under s. 8(5) of the Regulation. [ 40 ] Secondly, the terms of the July 15, 2011 letter required Mr.

Meleshko to agree “ to attend any assessment appointments required by Odyssey Health Services. ” The Appeal Board had already determined it was unreasonable to require Mr. Meleshko to attend the Calgary appointments; it is therefore inconsistent for it to then require him to agree to any and all appointments set up by Odyssey. While the Regulation provides an employee who refuses or willfully fails to participate and cooperate in a rehabilitation program may have benefits terminated, the Regulation must be read as requiring reasonableness in the program. The Appeal Board inferentially agreed with this

interpretation when it concluded Mr. Meleshko need not travel to Calgary for the assessment and reinstated his benefits from April 5. A requirement that he attend any assessment scheduled by Odyssey could lead to arbitrary and unreasonable requirements not contemplated by the Regulation. [ 41 ] The July 15 letter also required Mr. Meleshko to communicate with Odyssey and GWL by cell phone, and in my view this requirement does not reasonably fall within the terms of refusing to participate or cooperate in a “ rehabilitative program ” .

Admittedly, the term “ rehabilitative program ” should have a broad

interpretation, in keeping with the purpose of the Regulation, but in my view requiring someone to communicate by cell phone is outside a reasonable

interpretation of what constitutes cooperation in such a program. [ 42 ] Finally, there is no evidence that Mr. Meleshko failed to attend any assessments that were set up by GWL after May 2011. There was only an attempt to foist upon Mr. Meleshko the obligation to set up his own assessment after that time. I have already commented on this issue of communication by cell phone and in my view, Mr. Meleshko ’ s insistence on written communication was, indeed, justified. The tone of the communication from GWL makes it even more justified that Mr.

Meleshko have written communications which he could then forward to his legal counsel. I find the decision in Nayyar v. Manufacturers Life , 2012 BCSC 28 comforting in that Mr. Nayyar had asked to have contact by email only, which was rejected by the insurer alleging that by asking for that kind of contact, he was intending to block rehabilitation services.

I find it interesting that the Respondents do not want to have their communications documented if they can avoid it. [ 43 ] Furthermore, in my view, it is incredulous in this day and age for an insurance company to insist on telephone communication when there are so many ways of communicating and where the communications can easily be recorded and forwarded on to Mr. Meleshko ’ s counsel for review and approval in circumstances such as this. GWL was attempting to intimidate Mr.

Meleshko into doing things he was not required to under his obligation pursuant to the regulation, simply to have the adjudicator agree to reopen his claim file. In my view, this was unreasonable. [ 44 ] An important factor in this case is this is, essentially, a statutory policy of insurance. Presumably the same obligation of uberrima fides applies to the government insurer in this circumstance, as much as it would to an insurer offering contractual policy of insurance.

Insisting on communication where no record could be retained flies in the face of good faith communication when the insurer knows that the insured does not trust its motives under the circumstances. Remedies [ 45 ] Alberta takes the position if I quash part of the decision, I should send the rest of the matter back to be reheard to allow the parties to make submissions on the question of the July 15 letter. The problem lies in the respondents ’ counsels ’ own submissions that the LTD claim is “ organic ” in nature. Mr.

Meleshko may be fortunate enough to get better next month, six months from now, a year from now. His condition may change from time to time, even though reviewing the medical evidence in the materials, the probabilities are not high that that is likely to happen. Sending it back to the Appeal Board cannot address this question; only the case manager and adjudicator can make that first instance determination. [ 46 ] The Court has accepted the Board ’ s decision that the adjudicator was wrong when he terminated benefits in April 2011.

Therefore the Court quashes the that portion of the decision terminating benefits as of July 16, 2011 as having been made without jurisdiction, or alternatively as breaching procedural fairness or as being unreasonable. This Court therefore makes a declaration that Mr. Meleshko ’ s benefits were wrongfully terminated and should be reinstated from the date of the termination. [ 47 ] As an aside, I note that going forward both sides could act more reasonably. For example, it might make sense, given Mr. Meleshko's concerns about having written communication and GWL's concerns about Mr.

Meleshko not responding in a timely manner, that GWL follow up any phone conversations (during regular business hours) with a written letter, sent by regular mail not courier, confirming the contents of the conversation, and for Mr. Meleshko to agree to respond to a phone message (in this day and age, everyone can have voice mail) during business hours within a certain period of time and to collect mail at regular intervals. Heard on the 4 th day of September, 2012. Dated at the City of Edmonton, Alberta this 28th day of December, 2012.

L.D. Acton J.C.Q.B.A. Appearances: Jeremy L. Taylor Field LLP for the Applicant Nicole Pfeifer for the Respondent Her Majesty the Queen in Right of the Province of Alberta Lynne Wilson for the Respondent Great-West Life Assurance Company APPENDIX Public Service Long Term Disability Income Continuance Plan Regulation

Part 1

Definitions In this Regulation: (a) "adjudicator" means a person who is independent of the government and the employee or the employee's bargaining agent, who determines whether an employee is disabled for the purposes of this Regulation and who may also provide any additional services that are agreed to by the government and that person; (b) "amount of coverage" means an employee's Long Term Disability Income benefit as expressed as a percentage of bi-weekly earnings; Sec 1(

b) Amend. M.O. 8/2009 Oct-1-2009 (c) "benefit" means money provided to an employee under the Plan;

(d) "disability" means a medical condition that causes an employee to be unable; (

i) to perform any combination of duties which, prior to the commencement of illness or injury, regularly took at least 60 percent of the employee's time at work to complete, or (ii) to be gainfully employed; (e) "elimination period" means 80 consecutive normal work days or the number of hours of work for a continuing illness equivalent to 80 normal work days, starting the day an employee stops work or partially stops work because of bodily injury or illness; (f) "gainfully employed" means employment that an employee is medically fit to perform, for which the employee has at least the minimum qualifications and that provides a salary of at least 60 percent of the employee's pre-disability salary; (g) "month" means a period of time between the same dates in two successive calendar months; (h) "bi-weekly earnings" means the employee's current regular bi-weekly rate of pay; Sec 1(

h) Amend MO. 8/2009 Oct-1-2009 (i) "over-range salary" means a salary that is greater than the maximum salary of the assigned class; (j) "Plan" means the Public Service Long Term Disability Income Continuance Plan; (k) "Plan Administrator" means the Plan Administrator appointed by a Ministerial Order to administer the Plan; (l) "period of disability" means the period in which an employee is entitled to receive benefits from the Plan beginning after the last day of the elimination period; (m) "pre-disability salary" means the bi-weekly earnings an employee is entitled to or subsequently becomes entitled to receive as of the last day of the elimination period; Sec 1(

m) Amend. M.O. 8/2009 Oct-1-2009 (n) "regular duties" means the regular duties or duties similar to the regular duties that the employee was performing immediately prior to the beginning of the elimination period; (o) "service" means employment with the Crown in right of Alberta;

(p) "work day" means any day on which an employee is expected to be at work.

Part 2 Application 2

(1) This Regulation applies to employees of the Alberta public service. Coverage 3

(1) An employee in a permanent position will be covered under the Plan beginning the first day of the following pay period after the employee completes three consecutive months of service without absence because of illness or disability, except for casual illness. Sec 3(1) Amend. M.O. 8/2009 Oct-1-2009

(2) An employee in a temporary position will be covered under the Plan if the employee has one year of continuous salaried employment by the end of the elimination period and the deputy head determines that the temporary position has or would have continued through the elimination period.

(3) An employee hired by a contract of employment may be covered as set out in the terms of the contract.

(4) The Public Service Commissioner will designate coverage for an employee in any other type of position.

(5) The employee's coverage under the Plan terminates on the earliest of the following, when the date is: (

a) the date of the employee's 65th birthday; or (

b) the date the employee occupies a position not eligible for coverage if the employee is not receiving benefits under the Pian at that time; or (

c) the date the department terminates the employee's service if the employee is not receiving benefits under the Plan at that time; or

(

d) the date the employee resigns from government service. 4 An employee who is a member of the Bargaining Unit, while covered under the Plan, shall contribute 50% of the monthly premium costs, calculated on a bi-weekly basis for Long Term Disability benefits. Sec 4 Amend. M.O. 8/2009 Oct-1 ⋅ 2009

Part 3 Eligibility for Benefits 5

(1) When the adjudicator determines that an employee's bodily injury or illness results in a disability, and the disability continues during the entire elimination period, the employee is eligible for benefits beginning immediately after the elimination period.

(2) If an employee returns to work during the elimination period and then takes general illness leave for the same or a related illness within 10 consecutive work days of returning to work, the time that the employee was at work is considered to be part of the elimination period.

(3) An employee will not be eligible for benefits payable after the elimination period for: (

a) a disability suffered as a result of participation in the commission of crime; or (

b) a disability suffered as a result of

an act of war; or (

c) an intentionally self-inflicted injury or illness; or (

d) any period during which the employee is not under the continuous care of a physician, or not following the treatment a physician prescribes; or (

e) a period of incarceration in a prison or similar institution.

(4) Depending on the nature and severity of an employee's condition, the adjudicator may require an employee be under a specialist's care.

(5) If substance abuse, including alcoholism and drug addiction, contributes to an employee's disability, the employee's treatment program must include participation in a recognized substance withdrawal program.

(7) If an employee returns to work after an absence caused by a disability, is no longer receiving disability benefits, and is disabled as a result of the same or a related condition within six months after the date long term disability benefits payable terminate, the disability is considered continued and another elimination period is not served.

(8) Any authorized benefits may continue up to the maximum benefit period described in

section II during any one period of disability, but the benefits end when the adjudicator determines that the disability has ceased.

(9) If the adjudicator determines that an employee is disabled from performing regular duties but is fit for gainful employment, the employee is eligible for benefits for up to three months from the date of being assessed by the adjudicator as fit, or the date of gainful employment, whichever comes first.

(10) If an employee is not employed within three months from the date of being found fit for gainful employment, no further benefits are payable and the employee will be released from employment with eligibility to receive severance pay equivalent to the greater of: (a) 2 months' pay; or (b) 1 .5 weeks' pay for each full year of continuous employment to a maximum of 25 weeks' pay; or (

c) an amount equal to an amount payable under a separation payment for restructuring calculation, if in force. Pre-Existing Condition 6

(1) Benefits will not be paid for any medically documented injury or illness for which an employee received medical services, supplies, or any medication prescribed by a physician during the 90 days immediately preceding the effective date of permanent or temporary employment. This does not apply to an employee who has been employed in a permanent or temporary position for two consecutive years and is not absent from work because of a pre-coverage injury or illness on the date the two years are completed.

(2) If the employee has been employed in a permanent or temporary position for two consecutive years but is absent from work because of a pre-coverage injury or illness at the two-year point, the employee is eligible for coverage under the Plan on the date the employee returns to work. Interim Payment 7

(1) If the adjudicator does not decide on an employee's eligibility for benefits before the end of the elimination period, the deputy head may order that the employee continue to be paid at the rate of 70 percent of the employee's normal salary for up to two months or until the date the decision is received, whichever comes first.

(2) The employee is not entitled to receive this interim payment and benefits.

(3) If the employee received an interim payment and is found eligible for benefits: (

a) that payment will be treated as a prepayment by the employer, on behalf of the Plan, of the benefits due for that period; and

(

b) the Pl an Administrator will not pay the employee further benefits for the period covered by the payments; and (

c) the Plan Administrator will repay the amount of the interim payment.

(4) If the employee received an interim payment and is found not eligible for benefits, the employee must repay the payment. Rehabilitation Program 8

(1) A rehabilitation program approved by the adjudicator may be established with an employee's department and the Plan Administrator for a specific time period not exceeding 24 months. The program may require that the employee: (

a) perform the employee's regular work on a part-time basis; or (

b) perform other than the employee's regular work duties; or (

c) participate in an academic training program; or (

d) participate in an on-the-job training program; or (

e) participate in a work assessment program.

(2) If an employee successfully completes the academic training referred to in sub- section (1)(

c) and provides receipts, with the adjudicator's approval the employee may be reimbursed for out-of-pocket expenses for books, supplies, and tuition fees incurred as a result of the training, to a maximum amount equivalent to three months of benefits.

(3) At the end of the elimination period, if an employee suffers from a disability that prevents the performance of regular duties, but the employee is abl e to participate in a rehabilitation program, the employee is eligible for benefits.

(4) If an employee is receiving less employment income under a rehabilitation program than was being received prior to the disability, the bi -weekly benefit amount to which the employee is entitled will be reduced by 50 percent of the income received from that program. If the combination of reduced benefits and income equal an amount that exceeds the employee's pre-disability salary, benefits will be further reduced so that combined benefits and income do not exceed the pre-disability salary. Sec 8(4) Amend. M.O. 8/2009 Oct-1 ⋅ 2009

(5) If an employee refuses or willfully fails to participate and cooperate in a rehabilitation program, the adjudicator may determine whether the employee is eligible to receive or continue to receive benefits.

Part 4

Amount of Benefit 9

(1) The benefit amount for an employee shall be 70 percent of the employee's pre- disability salary which is effective on completion of the elimination period. The maximum benefit for an employee who is a member of the Alberta Union of Provincial Employee's Bargaining Unit is $1,839.09 per bi-weekly pay period. Sec 9( 1) Amend M.O.8/2009 Oct-1-2009

(2) The bi-weekly benefit amount to which an employee is entitled shall be reduced: (

a) by the amount of disability benefit entitlement, excluding children's benefits and cost of living increases, under the Canada Pension Plan and the Quebec Pension Plan; (

b) the amount of compensation under the Workers' Compensation Act, excluding cost-of-living increases, third party payments, compensation related to employment with another employer and compensation related to an injury unrelated to the disability; (

c) by the amount of benefits payable from any other group disability plan sponsored by the employer; (

d) by loss of income benefits under an automobile insurance plan, to the extent permitted by law; (

e) by vacation leave pay; (

f) by the amount of earnings received from employment or self-employment, other than a rehabilitation program. Sec 9(2) Amend M.O. 8/2009 Oct-1-2009

(3) An employee must apply for Canada Pension Plan or Quebec Pension Plan disability benefits within 12 months of being placed on the Plan and provide proof of application to the Plan Administrator.

(4) An employee who does not apply for benefits pursuant to subsection (3) after reasonable notice to do so may have the maximum Canada Pension Plan or Quebec Pension Plan disability benefit deducted pursuant to subsection (2)(a).

(5) If any amount or benefit described in subsection (2) is received in the form of a lump sum payment instead of bi -weekly installments, the benefits under subsection (1) shall be reduced by the equivalent commuted bi-weekly installments. Sec 9(5) Amend. M.O. 8/2009 0ct-1-2009 Sec 10 Deleted M.O. 5/2009 Aug-27-2009

Termination of Benefits 11 The benefits payable under the Plan terminate on the earliest of: (1) the date the employee is gainfully employed; or (2) three months after the date the adjudicator decides that the employee is suitable for gainful employment; or (3) the date determined by the adjudicator when the employee refuses or willfully fails to participate and cooperate in a rehabilitative program; or (4) the date of the employee's 65th birthday; or (5) the date the employee resigns from government service; or (6) the date the adjudicator determines the employee is no longer disabled or the date the employee returns to the employee's regular duties, whichever comes first; or (7) the date the employee's earnings received from employment, self -employment, or the rehabilitation program are the same as the employee's pre-disability salary; or (8) after 24 months of entitlement or after the adjudicator determines that employee is no longer disabled, whichever comes first, where the employee is in a temporary position.

Income Maintenance 11.1

(1) If the adjudicator determines that an employee is disabled from performing regular duties but is fit for gainful employment, the employee, subject to sub-section (2), is eligible for income maintenance for up to 36 months from the date of being found fit for gainful employment or until the employee's 65th birthday, whichever comes first.

(2) If an employee is gainfully employed within three months from the date of being found fit for gainful employment and has not received a severance payment, the employee will receive payments in the amount equal to the difference between the pre-disability salary and the employee's income from the gainful employment. Outplacement Services 11.2 An employee, upon being found no longer disabled from regular duties after 24 months of receiving benefits or being found fit for gainful employment and who has not received outplacement services in conjunction with a rehabilitation program, will be eligible to receive outplacement services.

Part 5 Over-Range Salaries 12 If an employee has been in a rehabilitation program, or receiving income maintenance payments, or both, for 36 months, and then loses the benefits of those programs, the employing department will protect the employee's salary over-range at the benefit rate provided to the employee while on those programs. Coverage During Leave of Absence 13

(1) An employee will be covered under the Plan for a period not exceeding 12 consecutive months from the date the employee begins leave if the employee is: (

a) on authorized staff development leave initiated and approved by the employer; or (

b) serving on assignment with the United Nations or a foreign or domestic government where disability coverage is not available.

(2) Coverage under the Plan continues for an employee on a leave of absence without pay. However, benefits are not payable during the leave and, if applicable, premiums are not paid. Participation in Group Plans 14

(1) If an employee is eligible for benefits, the employee will be covered under the following plans in which the employee is participating at the beginning of the elimination period for as long as the employee receives benefits: (

a) Group Life Insurance Plan for Government of Alberta Employees included in the Bargaining Unit; (

b) Prescription Drug Plan for Government of Alberta Bargaining Unit Employees; (

c) Extended Medical Benefits Plan for Government of Alberta Bargaining Unit Employees; (

d) Dental Plan for Government of Alberta Bargaining Unit Employees;

(

e) Prescription Drug Plan for Managers and Non-Union Employees of the Government of Alberta; (

f) Group Life Insurance Plan for Managers and Non-Union Employees of the Government of Alberta; (

g) Extended Medical Benefits Plan for Managers and Non-Union Employees of the Government of Alberta; (

h) Dental Plan for Managers and Non-Union Employees of the Government of Alberta.

(2) During the period that coverage continues, the employer and the employee will continue to pay their respective shares of premium costs for each plan.

Part 6 Adjudication Review 15

(1) When the adjudicator has ruled that an employee is not eligible for benefits or that benefits are to cease: (

a) the deputy head may request that the adjudicator review the claim; or (

b) the employee may request that the adjudicator review the claim and may, at the employee's expense, make representation to the adjudicator with the employee's representatives, only once. (2) (

a) An employee must submit a request for a review within thirty (30) days of the claimant being notified of the decision. (

b) New or additional medical information or other written submissions that are intended to be part of the appeal must be submitted within ninety (90) days of the claimant being notified of the decision.

(3) On receiving a request for review, the adjudicator will review the employee's case, taking into account the representation by the employee or employee's representative and any new information, and make a decision.

(4) On receiving the adjudicator's first level appeal decision pursuant to sub-section (3), an employee may request that the claim be reviewed a second time by an independent appeal board which will take into account the representation by the employee or the employee's representative, medical information and other written material, and make a decision.

(5) The employee must request a review by the independent appeal board within thirty (30) days of the claimant being notified of the first level appeal decision. On receiving a request for review, the independent appeal board will review the employee's claim. The employee and the employee's representative may meet with the appeal board to make a representation only once.

Part 7, Sec 16, Deleted, M.O. 5/2009, Aug-27-2009

The adjudication of LTD applications for benefit eligibility is provided by The Great- West Life Assurance Company. When The Great-West Life Assurance Company (adjudicator) determines that an employee is not eligible for LTD benefits or that LTD benefits are to cease: ▸ the deputy head of the employing ministry may request that the adjudicator review the claim; or ▸ the employee may request that the adjudicator review the claim. This request for review is formalized when an employee files a Notice of Appeal which then commences the appeal process. The following is intended to assist in clarifying the process.

Appeal Process The appeal process has two levels: ▸ First Level consists of submitting additional information and requesting an appointment (optional) with the adjudicator to discuss the discontinuation of benefits. ▸ Second Level consists of submitting additional information and a hearing where the employee or their advocate makes representation to the Second Level Appeal Board. It is a mandatory requirement for the employee to attend the hearing. The purpose of the appeal is for the employee to provide additional (written and/or ver- bal) information they view as relevant to their claim.

Continuation of group benefits during an appeal An employee is placed on a leave of absence without pay at the end of their LTD notice period. The employee and employer will continue to pay their respective share of all other group benefit and pension plan contributions for those plans the employee is covered and enrolled in.

First Level Notice of Appeal An employee who wishes to appeal the adjudicator's decision must complete and submit a Notice of Appeal within 21 calendar days from the date of the letter sent by your LTDI Liaison Officer, Service Alberta advising of the denial or discontinuation of LTDI benefits. ( http://www.pao.ab.ca/benefits/forms/notice- of- appeal.pdf ) The Notice of Appeal outlines the areas for appeal consideration, namely: ▸ medical reasons; and/or ▸ misinterpretation of evidence submitted; and/or ▸ requesting an appointment to meet once with the adjudicator to make a presentation.

The employee must indicate their reason(

s) on the Notice of Appeal. The Notice of Appeal is sent directly to the adjudicator. Within 60 calendar days from the date of the employer's letter, the employee must submit the new or additional medical information and/or other written material as they indicated on the Notice of Appeal. The employee is responsible for any costs incurred for obtaining and submitting the sup- porting information. Discussion with the adjudicator An employee can request on the Notice of Appeal form an appointment to meet once with the adjudicator, in Edmonton, to clarify the claim decision.

Employees not residing in the greater Edmonton area can request a teleconference appointment. Employees who are members of the bargaining unit may choose to attend their appointment with the Alberta Union of Provincial Employees (AUPE) LTDI Liaison Officer. No outside legal representation is permitted at this level in keeping with the Letter of Understanding signed between the employer and the AUPE. Costs incurred for travel and subsistence are the responsibility of the employee.

Employees in an Opted Out, Excluded or Management classification may attend their appointment accompanied by a representative of their own choosing. Costs incurred for travel, subsistence and representation are the responsibility of the employee. When the employee has requested an appointment, the adjudicator will arrange the appointment date. It is beneficial to

schedule this meeting at or around the 45 th day within the 60 day time line. Discussion with the adjudicator may clarify the decision made on the

claim and/or identify areas or issues where additional information is required by the adjudicator. Examples of such information are updated medical reports, additional medical reporting or providing a clearer description of job duties. A decision is not made at this meeting by the adjudicator. Following the meeting, the employee can then complete collection of all related and identified information for submission to the adjudicator within the 60 day time line. If an extension to the 60 days is required, a written request for extension consideration can be made.

Request for consideration of extension to 60 day deadline A request for an extension beyond 60 calendar days to submit additional information may be made by the employee as follows: Bargaining Unit All requests for consideration of the 60 days extension at the first level: ▸ must be in writing from the AUPE LTDI Liaison Officer; ▸ must be medical in nature as the reason for the extension being requested (i.e. awaiting report from specialist); ▸ must be received by the LTDI Manager, Alberta Corporate Human Resources, prior to the expiry of the 60 days.

Opted Out, Excluded, Management All requests for consideration of the 60 days extension at the first level: ▸ must be in writing from the employee or their representative; ▸ must be medical in nature as the reason for the extension being requested (i.e. awaiting report from specialist); ▸ must be received by the LTDI Manager, Alberta Corporate Human Resources, prior to the expiry of the 60 days. Review by adjudicator Upon the expiry of the 60 days (or extension), the adjudicator conducts the appeal review based on their file which includes all information provided by the employee in support of the appeal.

The adjudicator will provide, in writing, the decision. The outcome of this review may be: ▸ that the original decision is overturned, LTD benefits are approved or continued for as long as the employee remains eligible under the Public Service Long Term Disability Income Continuance Plan Regulation; or ▸ the initial decision remains the same. When this occurs, the employee has the right to file a second appeal, reviewed by an independent Appeal Board. Second Level

Where the first level appeal decision remains the same as the initial decision, the employer will mail a Notice of Appeal to the employee. Notice of Appeal