Recently, the Superior Court of Quebec in Syndicat des agents de la paix en services correctionnels du Québec v. Pineau (PDF - decision available in French only) confirmed on judicial review an earlier arbitration decision (PDF - decision available in French only) denying an employee short term disability benefits for the convalescent period following cosmetic surgery.

The Facts

A unionized, female employee working in provincial correctional services asked her employer to pre-approve a 4 month disability period for scheduled surgery. The surgery in question was an abdominoplasty, more commonly referred to as a "tummy tuck". The surgery was to be carried out in Cuba where she would be hospitalised for 17 days, followed by three months of convalescence at home. The form she submitted to her employer specified that she would be unable to  move or drive a vehicle during the convalescent period.

The employer first refused to approve the disability period and pay benefits due to lack of sufficient medical information. The employee subsequently provided some additional medical information but the employer continued to refuse payment of benefits primarily on the grounds that cosmetic surgery is not considered a medical treatment or illness.

The union filed a grievance claiming on behalf of the employee the short term disability benefits she would have received during the convalescent period.

The Arbitrator's Decision

At the outset of the hearing, the union conceded that it could not claim disability benefits for the initial hospitalisation period (the 17 days spent in Cuba) because the surgery was cosmetic in nature and as such, would be excluded from the scope of benefits to be provided. Indeed, the union acknowledged that, in accordance with case law, cosmetic surgery is not considered an illness. However, the union claimed that the convalescent period should be distinguished from the surgery itself and since the grievor was incapable of working during the post-operative period, she qualified for benefits.

The question was therefore whether a distinction should be made between the inability to work during the treatment (i.e. the surgery and hospitalisation period) and the subsequent period of convalescence at home.

According to the arbitrator, no distinction should be made for the following reasons:

  • from the outset, the doctor had identified the convalescent period as part of the treatment
  • the disability period was not due to a cause distinct from the surgery or to a post- surgery complication
  • the collective agreement defined "disability" as a state in which the employee is unable to work due to illness; however, not only was there no medical reason for the surgery but the union had recognised that the surgery was not an illness

The grievance was denied and the employee was not entitled to the short term disability benefits she claimed.

The union sought judicial review of the arbitrator's decision.

The Decision on Judicial Review

The Superior Court of Quebec denied the judicial review and confirmed the arbitrator's decision on the basis that it was reasonable.

As the Court noted, the arbitrator had based her decision on prior case law, the decision was well articulated and intelligible. As such, it warranted deference.

Take Away for Employers

Although this particular decision was based in part on the provisions of the collective agreement, it serves as a reminder to employers across Canada to review the terms of their short term disability benefit policy in order to determine whether any modifications are required to exclude cosmetic surgery or any type of elective surgery and exclude any subsequent convalescent period.