BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ONEIDA COUNTY DEPUTY
(Grievance of Dan Hess)
Mr. Mark Hollinger, Attorney at Law, Wisconsin Professional
Police Association, 340 Coyier Lane, Madison, Wisconsin 53713, appeared on behalf of the
Mr. Carey L. Jackson, Personnel Director, Oneida County,
Courthouse Building, P.O. Box 400, Rhinelander, Wisconsin 54501-0400, appeared on
behalf of the County.
On October 27, 1998, the Oneida County Deputy Sheriff's Association and Oneida
requested that the Wisconsin Employment Relations Commission appoint William C.
member of its staff to hear and decide a grievance pending between the parties. Hearing on
matter was conducted on March 15, 1999, in Rhinelander, Wisconsin. The proceedings were
transcribed. Post-hearing briefs were submitted and exchanged by April 26, 1999.
This Award addresses a dispute as to the effective date of health insurance coverage
child born to bargaining unit member Dan Hess.
BACKGROUND AND FACTS
Oneida County and the Oneida County Deputy Sheriff's Association have been
to a series of collective bargaining agreements, one of whose provisions provides health
benefits to bargaining unit members. The County has self-funded its health
insurance benefits since July 1, 1987. From July 1, 1987 thorough May 31, 1993, the
was administered by National Benefit Consultants (NBC), a third party administrator.
1, 1993, Midwest Securities Administrators (MSA) took over the administration of the health
When National Benefit Consultants managed the county health care plan, it provided
benefits booklet, which summarized the benefits available under the County's group medical
plan. The booklet defined "dependent" as including the "unmarried children of the
spouse." The booklet went on to provide: "Subject to the exclusions, conditions and
this contract, a member is entitled to covered services during any one calendar year. . ."
also provides, "Benefits described in this booklet are subject to all provisions and limitations
in the Master Plan document." The then-operative Master Plan document is not a part of
On January 28, 1994, shortly following the change in third party administrators, the
County Personnel Department distributed a health insurance plan document over the
TO: All Employees on Oneida County Health
FROM: Lisa Catlin, Administrative
. . .
Attached you will find a new copy of your health plan document.
It has been revised and written
in a manner that is easier to understand. There have been no changes made to your current
Also, there is an insert which explains the
procedure necessary when you or your family are
having inpatient procedures done. It is extremely important that the guidelines are
followed . . .
The plan document consists of 67 numbered pages, and currently includes an additional
17 pages of
attached amendments. The document is effective June 1, 1993. The following provisions
on page 21 of the plan document:
. . .
Effective Date of Coverage
The employee must submit a completed
health insurance application for either individual or family
coverage to the Plan within thirty calendar days of the first day worked in a qualifying
Coverage shall become effective on the first day of the month following thirty calendar days
qualifying employment, provided the employee is actively employed on the initial effective
not actively employed on the initial effective date, the effective date of coverage will be
until the employee returns to active employment in a qualifying position.
Late Entrant Position
Any employee who fails to complete a
health insurance application within the initial thirty
calendar days of employment in a qualifying position, or any dependent whom the employee
add to his/her coverage within the specified time limits, will be considered a "late entrant" to
A late entrant must complete a health statement application, and furnish evidence of
satisfactory to the Plan at no cost to the Plan. The Plan will then determine if the late
entrant will be
provided coverage. If coverage is approved, coverage will become effective on the first day
month following approval by the Plan of the employee's application for enrollment. All late
are subject to the pre-existing conditions provision of the Plan.
Changes In Dependent Coverage
Any employee who desires to add an eligible dependent to his or
her coverage, must submit a
completed application to the Plan within thirty calendar days of the date of marriage, birth or
adoption. The date of adoption is considered to be the date that a court makes a final order
adoption, or the date that the child is placed for adoption, whichever occurs first. After this
dependent will be considered a late entrant.
If the application to add an eligible
dependent is received within the thirty calendar day period,
the effective date will be: (1) for a new spouse, the date of marriage; (2) for a newborn child
employee, the date of birth. . .
Lisa Charbarneau (formerly Catlin) testified that she delivered the Plan documents
under the cover
letter set forth above to the Police Department, for distribution. A number of bargaining unit
members testified that they had never been given the Plan document. Mr. Hess
testified that he could
not recall receiving the Plan document.
The Plan, as currently administered, has a pre-certification procedure for certain
Employes are provided with an insurance card which bears the name and symbol of Midwest
Administrators, Inc. on both sides, and contains the following printed directive:
"All hospital admissions and outpatient diagnostic and surgical
procedures (any course of
treatment costing $500 or more) must be pre-certified with Associates for Health Care, Inc.
at 1-(800)-952-8661 at least three business days prior to service being performed. Associates
Care, Inc. must be notified the first business day following any emergency admission.
follow the above procedure may result in an additional financial responsibility."
Dan Hess, the grievant, has been employed as a Deputy Sheriff since March 15,
has been a subscriber to the family medical plan throughout his employment. Hess has three
a daughter Callie, born prior to his employment with Oneida County; a daughter Cassie,
17, 1994, and a son, Brandon, born May 5, 1998. It was the insurance consequences of the
Brandon that has led to this proceeding.
Hess secured pre-certification authorization from Associates for Health Care, Inc. It
testimony that hospital personnel made the required telephone call. As a part of the
process, Hess provided certain information to AHC in the process. AHC sends a
letter to Midwest, which includes the required information. Hess did not fill out and submit
application to add Brandon to his policy within thirty days of Brandon's birth.
Following the birth of Brandon, Hess took a one week's vacation. He did so with
approval of John Sweeney, his supervisor. Hess told Sweeney and others his family had just
Hess testified that he was unaware of the thirty day enrollment obligation. Midwest
notified Lisa Charbarneau by letter dated June 24, and received June 26, 1998, that "claims
submitted for the following family members of your employes. We have not received
add these members to your plan. . ." The form goes on to note Daniel Hess, lists his Social
number and identifies Brandon as a dependent.
Hess' first tangible evidence that a problem existed occurred 44 days following the
his son. Lisa Charbarneau sent him an enrollment form, which he filled out and returned the
day. Charbarneau returned the completed form to Midwest Security over a cover letter dated
June 30, 1998. An explanation of benefits form denying payment of $1,750 for
related to the birth of Brandon was received following submission of the enrollment form.
bills incurred by Hess' wife, the birth mother, were paid.
Hess called Midwest Security to complain, and to seek to have the bills paid. It was
testimony that it was suggested that he have the County change the enrollment date on the
application. That was not done. Hess did not appeal the decision of the administrator to
Mr. Hess' actions were identical to those employed when his daughter Cassie was
testified that he did not submit an application to include Cassie on his family plan within the
period following her birth. There was no insurance gap applicable to her. Charbarneau
the administration of the plan relative to Cassie's birth was an error. It was her testimony
that it was
the only such error made by the then-new third party administrator.
The Employer introduced records to demonstrate that four bargaining unit employes
followed the thirty-day application format, requested and filled out the enrollment form
and received benefits. Those births occurred in June, 1989, November, 1993, August, 1998
February of 1999. The Employer further introduced two late applications, including births,
the bargaining unit and one from another bargaining unit covered by the same plan. Those
both occurring in April of 1997 resulted in a gap in insurance coverage and obligated the
to demonstrate proof of insurability.
The parties were unable to stipulate to the issue. The County believes the following
issues govern this proceeding:
1. Is the grievance arbitrable?
2. Did the grievant follow the proper procedure in
attempting to obtain health benefits for
3. Did the County violate Article XIV, Section
14.01, when MSA followed the health plan
document in adding Brandon Hess to the health plan?
The Association takes issue with the County's arbitrability issue. The Association
contends that those
matters were first raised at the arbitration hearing. The Association contends that there is
but a single
Did the County violate the collective bargaining agreement when
it denied medical insurance
coverage to the newborn son of Deputy Hess? If so, what is the appropriate remedy?
This Award will address each issue advanced by the parties.
RELEVANT PROVISIONS OF THE COLLECTIVE
ARTICLE IV GRIEVANCE PROCEDURE
Section 4.01 Definition: A grievance
mean a dispute concerning the interpretation or
application of this contract. The grievance shall state the factual basis for the grievance and
specific section of the contract or part thereof which has been allegedly violated.
Section 4.02 Steps of the
. . .
Step 3: Any grievance which cannot
be settled through the above procedures
may be submitted to arbitration. . .
. . .
(c) Authority of Arbitrator: The
decision of the Arbitrator shall be limited to the subject matter
of the grievance and shall be restricted solely to the interpretation of the terms of this
contract. The arbitrator shall confine his/her determination to the grievance as stated and to
the specific sections identified in the grievance.
. . .
ARTICLE XIV INSURANCE
Section 14.01 Hospitalization: All
employees who desire hospital and sickness insurance,
shall be included in the regular County program of hospital and sickness insurance now in
as the same may be hereinafter modified or improved, with the County to pay one hundred
(100%) of the premium which may be administered and funded by the County under a
partially self-funded insurance plan to be implemented on July 1, 1987. Effective
January 1, 1991 All employees
who desire hospital and sickness insurance, shall be included in the regular County program
hospital and sickness insurance now in force, or as the same may be hereinafter modified or
with the County to pay ninety-five (95.0%) percent of the premium and the employee will
(5.0%) percent of the premium, which may be
administered and funded by the County
under a partially self-funded insurance plan to be
implemented on July 1, 1987. Employees who have retired at age 55, shall be allowed to be
continued by paying One Hundred Percent (100%) of the premium if this does not raise the
for the balance of the Oneida County employees and subject to its approval by the insurance
for the County. The present medical and hospitalization benefits will not be reduced but the
may from time to time change the insurance carrier if it elects to do so. The County agrees
the Association before any such change is implemented and to advise the Association of the
the proposed change. If a change in insurance carriers is grieved, the sole issue to be
the comparability of benefits expressed in total dollar value to the insured.
The hospital and surgical care insurance
shall be equivalent to the co-pay aggregate liability
plan provided by Blue Cross/Blue Shield, a copy of which shall be attached to the contract,
plan is further explained. . .
The County agrees to reimburse any
portion of the final $250 of the $500 deductible which
has been incurred and paid each calendar year subject to a maximum reimbursement of $500
calendar year under the family plan. Under the family plan, family members who have
charges to satisfy the deductible would be reimbursed any portion of the final $500 incurred
by the employee in excess of $500.
. . .
ARTICLE XXIV ENTIRE MEMORANDUM OF
Section 24.01 Amendments: This
Agreement constitutes the entire Agreement between the
parties and no verbal statements shall supersede any of its provisions. Any amendment or
supplemental hereto shall not be binding upon either party unless executed in writing by the
POSITIONS OF THE PARTIES
The County contends that the first issue for the Arbitrator to decide is whether or not
matter is arbitrable. The County contends that there is nothing in the labor agreement which
grieving the administration of health benefits. The Agreement allows the Union to arbitrate a
in insurance carriers provided the sole issue to be determined ". . .is the comparability of
expressed in total dollar value to the insured." The County contends that there is simply no
the contract for allowing the Association to take a grievance, pertaining to the administration
health plan, to arbitration. To so allow would create new contract language, something the
is specifically prohibited from doing.
The County contends that the Association is precluded from claiming that the
rule violates the management rights clause because no such claim was made on the
The County contends that the Association failed to tender proof that the County
rule. There was no evidence entered into the record relative to the prior Blue Cross/Blue
health plan as it pertained to Oneida County. Absent the Blue Cross/Blue Shield language
application, there can be no showing that a change occurred. To the contrary, the County
into evidence a long-standing practice of consistent application of the enrollment
requirements of the
health plan. The County contends that the matter is not grievable because Hess failed to
proper procedures to obtain health plan coverage for his newborn son. The County points
the plan contains an appeal procedure that Hess could have followed, but chose not to. The
contends that that appeal mechanism, and not the grievance procedure, is Hess' correct
failing to utilize the review process, Hess precluded the Plan's supervisor from administering
health plan in a fair and consistent manner. The County contends that should the Association
in this grievance, arbitration will become the first step in the appeal process for all health
The County contends that it did not violate Article XIV of the labor agreement. It is
County's position that the requirement that all newborns be enrolled in the health plan in a
manner is a long-standing requirement. The third party administrator has required employes
their newborns in the health plan through the completion and submission of an enrollment
in a timely manner. The Employer, pointing to the four employes who submitted 30 day
contends that employes both knew of the requirement and complied with it. The County
demonstrated that the two employes who failed to add their newborn dependent children
30 days following birth found themselves uninsured. The County acknowledges that MSA
mistake in adding Mr. Hess' second child, Cassie, to the plan without proper documentation.
mistake is an exception to an otherwise well-documented practice that exists.
The Employer contends that it did not violate Article XIV. The contract is silent on
dependent coverage and on enrollment procedures. The health plan defines each of those.
Employer contends that the two provisions in Section 14.01; i.e. "that present medical and
hospitalization benefits will not be reduced" and "shall be included in the regular County
hospital and sickness insurance now in force, or as the same may hereinafter be modified or
improved", is ambiguous and unclear. The County contends that the provisions contradict
The County contends that it is not for the undersigned to determine whether or not
enrollment procedure is reasonable. If it were otherwise, arbitrators would find themselves
unenviable position of opening the door to decide every facet of every health plan.
The Employer acknowledges that Hess gave verbal notification of the birth of his
child to his
supervisor. The Employer notes that the health plan document requires a written enrollment
application. Verbal notice to a supervisor does not measure up. The Employer further
that Hess went through the utilization review requirement. The Employer contends that that
has nothing to do with the enrollment requirements of the health plan or approved benefit
The Association contends that at no time has the County asserted that it made the
document administered by National Benefit Consultants, Inc. (hereinafter referred to as the
plan document") available to employes. The pre-1993 summary of the plan document was
and in the possession of Hess. That summary makes no mention of any rule requiring that
fill out an application within 30 days to change dependent care coverage. After Hess' second
Cassie was born in April of 1994, Charbarneau wrote Hess and told him that the County had
billed and instructed Hess to fill out an enclosed form and return it to her, which he did.
no testimony indicating that Charbarneau informed Hess of the 30-day rule at, or after, the
Cassie's birth. Yet Cassie was covered by the Hess family health insurance plan.
Prior to receiving medical services, Hess was required to seek pre-authorization of
by contacting Associates for Health Care. AHC, in turn, contacted the plan administrator,
Security Inc. Thus, the plan administrator, the agent for the County, was notified that Hess'
entering the hospital to give birth. Furthermore, Hess received pre-authorization for medical
for both his wife and the newborn.
The Association contends that the subject matter of the grievance is arbitrable. The
Association is grieving the application of unilaterally adopted rules for adding newborns as
dependents, not the change in insurance carriers.
The Association contends that it has followed the correct procedure in processing this
grievance through the grievance procedure, rather than through the appeal process set forth
post-1993 plan document. Were the County's argument to the contrary to be valid, the
would then be able to unilaterally alter the negotiated grievance procedure, and replace the
agreed-upon trier of fact, an arbitrator, with an agent of the Employer, the plan
Association cites arbitral support for the proposition that disputes over the application of
contractually-created health insurance are a proper matter for arbitration. The parties never
negotiated and agreed upon any portion of the post-1993 plan document, much less the
process which appears on page 61 of that plan document. The contractual definition of a
is broad, encompassing any difference arising between the parties concerning the
application of the contract. The instant dispute is alleged to be arbitrable, in that it involves
challenge to the manner in which the County has interpreted and applied Article XIV,
of the collective bargaining agreement. The
Association argues that the County essentially contends that this is a dispute between
Midwest Securities. Rather, the Association argues that the County is self-insured and a
party to this
The Association notes that Hess' complaint is based on an allegation that the County
the explicit language of the collective bargaining agreement by failing to provide dependent
hospitalization and sickness coverage. That same provision of the contract specifically
family plan, thus making it a type of insurance ". . .now in force. . ."
The Association contends that the thirty-day rule is, in the case of newborns,
on its face, and in its application because no conceivable condition exists which would make
newborn ineligible for medical insurance other than the 30-day rule itself. Unlike other
dependents, newborn babies of actively-employed bargaining unit employes are always
coverage under his or her parents' family plan coverage. Other than providing a loophole by
the County can claim "gotcha", the 30-day rule, as applied to newborns, is contrary to the
the parties, and just plain meanspirited. Clearly, the medical services of a newborn cannot
until such time as the County's plan administrator is aware of the child's birth. There is no
disadvantage to the County by being made aware of the additional newborn dependent
The Association contends that Hess never received notice of the 30 day rule, and,
cannot be penalized for adhering to such a rule.
The Association contends that Hess communicated the essential information required
County's application, and therefore, satisfied the 30-day rule. Hess provided AHC with the
information, and pre-authorization was granted by the plan administrator at Midwest Security
Administrators. Hess testified that the information relayed to the plan administrator to obtain
pre-authorization included name, date of birth, Social Security number, proposed treatment
plan of both
his wife and the newborn, and the anticipated length of stay. This information constitutes
substantially the information provided on the "application" called for by the plan document.
Securities plan administrator had already received detailed information about the proposed
plan, and officially pre-authorized coverage for the mother and the newborn. The
contends that Hess should be considered in compliance with the 30-day rule, because he
notified the plan administrator through the pre-authorization process.
The first issue for decision is the arbitrability of this matter. On its face, the
arbitrable. The grievance alleges the following: "Violation Article XIV Insurance
Hospitalization and any other article that may apply." The grievance goes on to claim:
"On May 9th, 1998, a child was born to Dan
Hess and his family. On June 22nd, 1998, Hess
received the insurance enrollment form from the County. He completed this form and
returned it the
On Monday, August 10, 1998, Hess was
informed that the newborn child would not be
covered by the present insurance plan as Hess had filed the enrollment form after the 30-day
of the child's birth."
The parties' collective bargaining agreement, particularly Section 4.01, defines a
as: "A dispute concerning the interpretation or application of this contract. The grievance
the factual basis for the grievance and the specific section of the contract or part thereof
been allegedly violated." Hess' grievance lays out its factual basis, and identifies
Section 14.01 as
having been allegedly violated.
Step 3 of the grievance procedure provides: "Any grievance which cannot be settled
the above procedures may be submitted to arbitration." The parties to this dispute exhausted
grievance procedure without settling the dispute raised by the grievance.
The strong federal policy favoring the arbitration of grievances arising under a
bargaining agreement (United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S.
574, (1960)) is mirrored by the law applicable to Wisconsin's public sector. In Joint School
District No. 10 v. Jefferson Education Association, 78 Wis. 2d 94 (1977), Wisconsin's
Supreme Court set forth a standard which parallels federal law. In Jefferson, the Court
"The Court has no business weighing the merits of the grievance.
It is the arbitrator's decision
for which the parties bargained. . .The Court's function is limited to a determination whether
is a construction of the arbitration clause that would cover the grievance on its face and
other provision of the contract specifically excludes it." 78 Wis. 2d 111.
The Court went on to elaborate the duty to arbitrate standard as follows:
"An order to arbitrate the particular grievance should not be
denied unless it may be said with
positive assurance that the arbitration clause is not susceptible to an interpretation that covers
asserted dispute. Doubts should be resolved in favor of coverage." 78 Wis. 2d at 113.
The judicial standards have been adopted and applied by the Wisconsin Employment
Commission. (Sauk County, Case 126, No. 54365, MP-3204, Dec. No. 29055-A, B,
The County alleges that Article XIV controls the arbitrability of this matter. In
County contends that Article XIV specifically excludes arbitration of this matter,
general provisions of Article IV. I disagree. Article IV of the parties' collective bargaining
agreement provides a general directive to arbitrate disputes arising between the parties, and
through the grievance procedure. Article XIV provides a narrow exception to the scope of
arbitration clause. Section 14.01 provides: "If a change in the insurance carriers is grieved,
issue to be determined is the comparability of benefits expressed in total dollar value to the
The sentence is specific to a Union challenge to the Employer's change in insurance carriers.
is not the dispute presented for decision here. The Employer has long ago changed carriers.
Union long ago acquiesced in that change. The dispute here challenges the administration of
is alleged to be a contractually-provided health insurance benefit. As such, it falls within the
mandate to arbitrate.
The County argues that Hess should use the insurance plan appeal process, in lieu of
grievance procedure. The existence of an internal appeals process does not alter the
bargaining agreement's provisions which submit disputes over contractually-created benefits
arbitrator. Hess could have, and perhaps should have, filed an appeal. However, that forum
designed to resolve disputes between Hess and the third-party administrator. The collective
bargaining agreement, and its grievance arbitration provision, serves to resolve disputes
County and the Union.
Review of the Merits
Article IV, Section 4.02, Step 3(c), Authority of Arbitrator, directs an arbitral
of the grievance, and the contractual section identified by the grievance. The grievance in
references Section 14.01. That section provides to "all employees who desire. . ." access to
insurance. The section allocates premium responsibility for hospitalization insurance and
for a plan ". . .administered and funded. . ." by the County. The parties to this dispute have
those words to allow the County to use a third party administrator to administer the plan.
14.01 sets a standard for the program and/or insurance benefit levels. It permits the County
or improve the plan in two places and further directs "the present medical
and hospitalization benefits will not be reduced. . ." Finally, the provision goes on to
set an insurance
standard, identifying Blue Cross/Blue Shield aggregate liability plan and indicates that a copy
plan shall be attached to the contract. As noted above, no such plan is attached to the
has been submitted into this evidentiary record.
The County contends that the provisions regulating its ability to change carriers are
inconsistent. I disagree. These provisions can be reconciled. The County is free to modify
improve its insurance plan. It is free to change the carrier. However, the County is not free
medical and hospitalization benefits. The threshold standard in assessing the question of
not the County has reduced benefits is the referenced Blue Cross/Blue Shield plan, and ". .
present medical and hospitalization benefits. . ."
Step 3(c) of Section 4.02 addresses my authority, which is limited to interpreting the
of the contract and the grievance. The question presented in this dispute is the propriety of
the 30-day notification rule. This rule, like the balance of the health plan, is found in the
plan document, and
not in the collective bargaining agreement. The procedural question thus raised is: does the
bargaining agreement invite/require a grievance arbitrator to review the elements of the
found in the plan document? I believe the answer to be yes.
Article XIV sets a standard for the health plan. The Employer-provided health plan
the "equivalent to the co-pay aggregate liability plan provided by Blue Cross/Blue Shield. .
is not to reduce present medical and hospitalization benefits. The Employer has rights to
health insurance plans subject to the contractual standard. In this dispute, the Employer has
plans. As noted, that is not in dispute. What is in dispute is whether or not the Employer
maintained the standard of benefits required by the collective bargaining agreement. The
contends that question is before the Arbitrator. The Employer contends that is a question
before the third party administrator.
Necessarily, Article XIV operates to incorporate the elements of the health insurance
the collective bargaining agreement, at least for purposes of contract administration review.
way to determine whether the current health insurance plan is the equivalent of the Blue
Shield plan is to review both plans. The Blue Cross/Blue Shield plan is to be attached to the
for that very purpose. The only way to determine whether "present" benefits have been
to examine the benefit in question. The provisions of this contract do not tolerate a contrary
The collective bargaining agreement establishes a benefit standard by reference to the
status quo and
another plan. The contract provides that the Employer is free to change plans under certain
circumstances. The collective bargaining agreement says that if the parties have a dispute
interpretation or application of the contract, a grievance may be filed, and if unresolved
arbitration. For me to conclude that I am without authority to examine benefit levels renders
foregoing meaningless. Such an award would create a de
facto result that Article XIV is not
enforceable under Article IV, a result contrary to both articles.
As to the merits, the County contends that I cannot determine whether the 30-day
constitutes a change from the prior plan in the absence of that plan document. I agree. The
argues that I should use the group benefits booklet under NBA and compare that document to
plan document. I regard this as an "apples and oranges" comparison. The booklet is a mere
of the plan document. By its very nature, it does not purport to be an all-inclusive
cannot tell from this record whether there was a 30-day notification requirement under the
Union witnesses testified they were unaware of any such requirement. However, these are
witnesses who testified that they were unaware of a 30-day notification requirement under the
plan. Clearly, the current plan document contains such a notice requirement. I note that the
example of a 30-day application predates MSA.
The County contends that it has established a practice of consistent administration of
the 30-day notice requirement. However, the County's practice in this regard is not pure.
whether or not a binding practice exists, arbitrators examine the clarity and consistency of
of conduct (See, Mittenthal, Richard: Past Practice and the Administration of
Agreements, 59 Michigan Law Review, 1017, 1961) in search of a constant,
unequivocal pattern of
behavior. (See, Celanese Corporation of America, 24 LA 168, Justin)).
Here, the Employer has administered the 30-day notice provision, as applied to
even where the administration of that provision has had significant consequences for the
question. However, the administration of this provision has not been unequivocal. There
one demonstrated exception. That exception involves the very employe whose actions and
are at the center of the question posed in this proceeding. The County contends that the
administrator erred in paying out benefits in the absence of a timely enrollment application,
the 1994 birth of Hess' daughter, Cassie. Assuming that to be the case, there is no
indication that the
Employer advised Hess at the time that he had failed to submit a required application. There
indication that either the Employer or the third-party administrator ever pointed out to Hess
consequences of his failure to submit such a document. To the contrary, the record
the Employer knew that Hess was not in compliance, and said nothing.
The County contends that it is not for the undersigned to review the enrollment
evaluate its reasonableness. I agree. My task is limited to an analysis of whether the
administered, violates the collective bargaining agreement. There are legitimate reasons to
provision for adding dependents to the plan, and for having a time frame to do so. Whether
provision is inherently reasonable is not a matter for my review.
Here, however, Article XIV makes available to "all employes" a certain health
benefit. The contractual language makes express reference to "a family plan". The
language of the
Agreement and the administration of the benefit extends the plan benefits to the employe's
family. There is no dispute in this proceeding that the $1,750 in denied claims were
services that, but for the absence of a timely application, would have been paid. The
of the untimely 30-day application is that it serves to deny health insurance coverage which is
otherwise provided under Article XIV.
The County contends that Hess notice to his supervisor, and the open character of the
is not sufficient to satisfy the plan requirement of a written notice to the third-party
The Employer is right. The plan calls for specific notice. Hess did not provide that notice.
departmental supervisor is an entirely different entity from the administrator of the health
The Union contends that Hess was not given sufficient notice to be held to a strict
of the 30-day application rule. The most basic notice as to the benefits and procedures of the
insurance plan are found in the plan document. The Employer was unable to establish that
that document. The Employer demonstrated delivery to the Department. A number of
disclaimed receipt. I am unwilling to infer that Hess had the document. This is not a
he stands alone. It is entirely possible that the document was never distributed.
The Employer demonstrated that it administers and enforces the 30-day application
The single exception involved an identical prior occurrence involving the grievant. Hess'
was born ten and one-half months following the effective date of the plan document. Her
occurred three months following distribution of that document. The third party administrator
the claims arising from that birth in the absence of an application to add Cassie to the plan.
document lists Oneida County as the administrator and lists Midwest Security Administrators
supervisor. Both were thus on actual notice that Hess did not understand his responsibility
plan. Their subsequent failure to notify Hess of his obligation is unexplained. Hess was left
continue to believe that he had satisfied his insurance plan obligations surrounding the birth
daughter, Cassie. Given his personal experience, Hess would have no reason to believe his
compliance actions relating to Brandon fell short of those required by the plan document.
I believe the Employer has established a practice of administering the 30-day
provision. I believe the Hess incident of 1994 was a mistake. As such, the mistake does not
compromise the viability of the practice. However, the third-party administrator and the
aware that Hess did not submit an application in 1994 and said nothing, leaving Hess to err
Given the circumstances of this dispute, and the significant consequences of untimely notice,
Employer is estopped from denying the disputed benefits to Hess as a result of his failure to
coverage within 30 days.
The grievance is sustained.
The Employer is directed to make Hess whole for any and all benefits relating to the
his son, Brandon, which arose and were unpaid, prior to Brandon's enrollment in the plan.
Dated at Madison, Wisconsin this 26th day of May, 1999.
William C. Houlihan, Arbitrator