HomeMy WebLinkAbout1988-1297.Klassen.92-08-05 ONTARIO EMPL OY~:S DE LA COURONNE
' ~ - CROWN EMPL 0 YEE$ DE 1. 'ON TA RIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
1,~0 DUNDAS STREET WEST, SUtTE 2'i00, TORONTO, ONTARIO. ~W5G ~Z8 TELEPHOIVE/TE£EPHO~E.. (4~6) 32S-1358
1gO, RUE DUNDAS OUEST, ~U~EAu 2'fO0, TORONTO (ONTARIO). MSG IZ8 :~ACSIf'.W, ILE/T~L~COPiE :' {4 ~6) 326- t396
1297/88
IN THE MATTER OF AN ARBiTRATZON
Un,er
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Klassen)
Grievor
- and-
The Crown in Right of Ontario
(Ministry of Education)
Employer
BEFORE: J.W. Samuels V%ce-Chairperson
T. Browes-Bugden Member
M. O'Toole Member
FOR THE N. Roland
GRIEVOR Counsel
Cornish Roland
Barristers & Solicitors
FOR THE D. Costen
EMPLOYER Counsel
Legal Service Branch-
Management Board of Cabinet
HEARING March 12, 1991
April 2, 3, 16, 17, 1991
May 28, 1991
June 24, 1991
September 25, 1991
June 17, 1992
Introduction
In September 1'973, Iona Klassea commenced her employment as a
Braillist and Librarian at the W. Ross Macdonald School in Brantford. As
the School's Braillist, her.job was to convert books and other printed
materials into braille for blind students, using a Perkins brailler, a manual
device (much like a typewriter) which embossed dots on paper.
In 1981, by most unfortunate accident, Ms. Klassen dropped liquid
solvent into her eyes. This damaged her cornea and made her especially
sensitive to ultraviolet light and glare. Thereafter, she has needed special
dark glasses to shield her eyes from ultraviolet light. Her imPairment has
meant that she has difficulty working if special lighting, which cuts down
on the production of Ultraviolet light, is not available. This has resulted in
many days off sick from her job.
In 1983, the'W. Ross Macdonald School became a resource centre
for the province, as well as a school for the blind. Now there would be a
resource library from which materials could be drawn for facilities around
the province. Iona Klassen became a Resource Braillist. She was to
produce braille material on a Perkins brailler; produce large print books;
reproduce, audio tape materials; produce tactile maps, charts and diagrams;
secure braille and audio tape materials for print-handicapped students;
assist in maintaining a lending library of teaching materials; and perform
related duties.
In 1986, Ms. Klassen was involved in an automobile accident. She
was struck from the rear and she suffered damage to the soft tissue around
her neck and spine. This injury meant that she could not .work for
extended periods of time on the Perkins brailler, because of the muscular
force needed to operate the machine, and she had considerable .difficulty
performing other tasks without suitable adjustments in equipment, lighting,
task rotation, etc.
3
In early 1987 Ms. Klassen began training to operate a computer
brailler. 'However, she and her employer had a difference of opinion
concerning her ability to oPerate the computer.
In April 1987, Ms. Klassen filed a grievance alleging
"Discrimination because of my handicap". Under "Settlement Desired",
she wrote "To be prope.rly trained. To be able to continue work with
Computer Brailling in the proper environment".
In November 1987, she went off work because of illness and she did
not return to full employment until mid-1991, after a full vocational
assessment of her condition.
On October 5, 1988, Ms. Klassen fried a second grievance. Under
"Statement of Grievance", she wrote
I grieve the employer's continued actions
demonstrates a refusal to allow me to operate a
computerized brailler upon my return to work
and that their refusal to offer complete training
and practical assignments sufficient to allow me to
perform to the employer's standards which .is a
contravention of Article i8, but not exclusively.
Under "Settlement Desired", she wrote
That the employer provide a complete and
comprehensive training package on the
computerized brailler wit[~ appropriate and
sufficient practical assignments sufficient to allow
me to perform to the employer's standard with
full back pay and benefits including seniority,
pension fixtd attendance credits, etc. retroactive to
September 6, 1988 and the current bank rate of
interest be paid on all moneys owing.
This Board held a hearing on February 1, 1989, at which we heard
argument concerning a number of preliminary objections, raised by the
Ministry concerning the two grievances.
We mled that we did not have jurisdiction over the first grievance,
primarily because, in pith and substance, it concerned a contravention of
the Ontario Human Rights Code, rather than a violation of the collective
agreement, and such a case ought to be determined according to the
procedure established in the Code.
With respect to the second grievance, we ruled that we had
jurisdiction and would proceed to hear evidence and argument concerning
the merits of the grievance. We said (at page 10 of our preliminary
award):
Now, what is the substance of the second
grievance? On its face it speaks of a violation of
Article 18. The grievor is entitled to try to prove
her allegation. From what we heard at our first
· day of hearing, it appears that this complaint
raises the following issues, with which we will
deal when we hear the evidence and argument on
the merits:
~ ' What.is the employer!s obligation with respect
to the grievor under Article 187
· What is the relevance of the Ontario Human
Rights Code in the determination of the
employer's obligation under Article 18?
· Have the grievor's rights under Article 18
been violated?
· If her rights have been violated, what is the
appropriate remedy.9
· Can this Board order that the employer
provide training for the grievor?
· Can this Board order a particular assignment
of duties for the grievor?
By now, several additional comments need to be made concerning
the substance of the case.
Firstly, the essential issue before us is whether or not the employer
violated Article 18 in some way did the employer fail to take reasonable
5'
measures for the health and safety of the grievor? Determination of this
issue may lead us into a consideration of the obligations of the employer
under the Ontario Human Rights Code.
Secondly, this Board is no longer being asked for .an order
concerning training or a special assignment .for the grievor, because the
'grievor is now back at work on a satisfactory full-time basis. However, in
determining whether there was a violation of Article 18, we may consider
whether or not there ought to have been training or a particular assignment
at sOme time before these matters were resolved'satisfactorily by the
parties.
Thirdly, while the grievance was filed in' I988, and therefore
focused on events up to the time of' the grievance, in our view we must
consider the dealings between the parties right up to the point when the
parties reached a satisfactory resolution of the grievor's work situation. It
was not practical for the grievor to file a new grievance every week or
every month or every time some new event occurred about which she was
unhappy her complaint was that the employer failed and continued to fail
to meet its obligations under Article 18 of the collective agreement, and
until a'satisfactory resolution was reached, the grievance was on-going. In
order forthis Board to determine the' overall issue between the parties, we
must determine whether, at any time before the grievor's work situation
was resolved, the employer ought reasonably to have taken measures for
'the grievor's health and safety which it failed to take.
We mm now to a review of the events which occurred after the
grievor's car accident on August 5, 1986.
The. Events 1986.
In layman's terms, the grievor suffered a whiplash injury when her
car was hit from the rear. She experienced pain in her neck-and in various
movements of her upper body.' She was under doctors' care, and attempted
to continue working as much as possible, but f'mally had to leave work in
October 1986.
After the accident, she did no manual brailling at all. It would not
be until October 1987 that she resumed using the Perkins for a brief
period.
On November 9, 1986, Dr. D. G. Gibson,. her family physician,
wrote to Ms. E. J. Chomiak (later to become Ms. King), the. School's
Program Director for the Resource Services Library, to explain the
grievor's medical condition. In particular, he concluded that "As with
most flexion-extension injuries of the neck, prognosis is difficult to predict.
Certainly, she should be fit to return to work in a couple of weeks. At that
'. time, it is important to avoid work where she has to repetitively raise her
arms above shoulder level and to avoid work involving long periods of
immobility. She must be free to move her neck regularly."
In late November 1986, Ms..Klassen returned to work after 48 days
absence. There was a meeting involving the gfievor, Ms. Chorniak, and
Ms. J. Field, the Supervisor of the Resource Library. A tentative work
schedule was discussed, which provided for a rotation of tasks, and
brailling with the Perkins and a computer. But l~Is. Klassen refused to
agree to the schedule, because she felt it involved more brailling than she
had done before her'accident, and she did not' yet know how to braille on
the computer. In early December, she wrote to Ms. Chomiak to say that
she could not agree to the proposed Schedule because the 'schedule was in
conflict with Dr. Gibson's recommendations in his letter of November 9.
Ms. Chomiak responded on December 15} 1986, requesting the grievor to
identify specifically which tasks in the proposed schedule were beyond the
grievor's capacity.I Ms. Chomiak pointed out that the proposed schedule
met the three recommendations of Dr. Gibson--no repeated rais~g of the
arms above shoulder level, avoiding 10ng periods of immobility, moving
7
the neck regularly. In our view, Ms. Chorniak' had good cause for asking ·
Ms. Klassen to be more specific; There was nothing in Dr. Gibson's letter
about an on-going inability to do manual brailling, and the proposed
schedule did appear to follow the recommendations of Dr. 'Gibson in his
letter of November 9.
Ms. Chomiak explained to us that the problem for the School at this
point in time was finding something which needed doing in the Resource
Library that Ms. Klassen could do. Ms. Klassen couldn't photocopy, or
manually braille, or thermoform (braille duplication). How was the School
to fill Ms. Klasseffs day?
In late 1986, the School was considering the introduction of
computer brailling. Ms. Chomiak thought this offered a possibility for
Ms. Klassen. But, in December 1986, Ms. Klassen refused' to become
involved with this.
198'/
In early January 1987, Ms. Chomiak and Ms. Field encouraged Ms.
Klassen to take the computer tr_a_ining, and this was agreed.
In February, the School provided Ms. Klassen with 5 1/2 hours of
training in computer brailling. This'training was done by Mr. J.
McDougall, who had been associated with the School since 1966 as a
residential counsellor, .teacher, and resource services consultant. In
February I987, Mr. McDougall was in charge of the Assisted Devices
Program. Mr. McDougall had experience with computer brailling since
1984 and was involved intimately with the early introduction of the
technology around the province. He had trained many people to braille
with the computer parents of print-impaired students, clerical staff,
teachers.
In early 1987, the School was gearing up for a pilot project to turn
textbooks into braille. Up to this point, these braille texts were purchased
8
from sources such as ithe Canadian National Institute for the Blind, and Mr.
McDougall was looking into the possibility of production at the School in
order to obtain the texts at less expense.
It is not clear whether the SchoOl was contemplating using Ms.
Klassen on the textbook project, or simply for braille production at the
School. But what .is clear'is that Ms. Klassen received the same training
from Mr. McDougall as many others had already received successfully.
.The 5 1/2 hours was sufficient to get people doing braille on the computer.
And the level of proficiency which everyone else had achieved was
sufficient for the purposes the School had in mind for Ms. Klassen.
But Ms. Klassen was a slow learner. And more importantly, she had
it fixed in her mind that she could not d° the job until she had mastered all
797 pages df the three manuals she was given concerning the software (Bex
and Transcribex) and hardware. In March 1987, she was asked to produce
a student's notebook Us.ing Transcribex, and she was simply unable to do it.
On April 6, 1987., she wrote a memo to Ms. Chomiak explaining her
difficulties with computer brailli_ng, and complaining bitterly about the
inadequacy of the training provided to her by the School. This view of
hers remains up to today.
In our view, Ms. Klassen simply missed the point or refuses to accept
the point--at the time, the School wanted a limited proficiency in computer
brailling, a level of competence sufficient to do the basic work which the
School required done ("unproofed braille"). From the evidence we heard,
Ms. Klassen may well have been the only person trained by Mr. McDougall
?
'who failed to grasp the point and who failed to get on with the business of
rudimentary computer brailling after the 5.1/2 hours of training.
The Union Called Mr. G. Eden, a Technical Aids Coordinator at the
CNIB, to testify that Ms. Klassen would need much more training in order
to braille properlY with the computer. Bat this evidence was entirely
irrelevant. Mr. Eden was talking about a level of proficiency and a
9
standard of product which was far beyond what the School required at the
time. The School had every fight to set a lower standard and to require a
much lower level of proficiency. Indeed, one of the reasons the School
was trying out computer brailling was to be able to produce material at a
much lower cost than was being provided by the CNIB. The CNIB had a
higher standard and was charging for it. L
The unchallenged evidence of Mr. McDougall was that the 5 1/2
hours of training he provided had worked fine for many, many people
over three years--after this training, they were able to do the kind of work
which the School wanted from Ms. Klassen. Ms. Klassen had no good
reason whatsoever for her complaints about the training which the School
provided in.February 1987. This experience, however, provided a good
basis for the School to be concerned about Ms. Klassen's suitability at the
time to do the type of computer brailling which was required. Ms. Klassen
gave every indication that she was a slow learner when it came to brailling
on the computer, and demonstrated that she could 'not grasp the point that
one did not need to understand fully 797 pages of manuals in order to do
the job.
And the School had good cause for another concern--in March'
1987, the grievor had to go home early one day when she was working on
the computer. She complained of bad lighting and a headache. She had
problems sitting at the computer the desk was not'fight, she needed a
footrest, and other adjustments. At this point in time, it was not clear to
anyone what physical adjustments would be necessary, but it was becoming
clear that, without satisfactory adjustments, the grievor could not perform
adequately on the computer, even if she knew how to do the work.
In early April, Ms. Klassen was taken off the computer. She had
experienced prob!ems learning the program; she had suffered headaches
from the glare off the computer screen and from the surrounding lighting;
she had trouble sustaining her hands at the keyboard; she had a recurrence
i0
of stress, and had' come to work wearing a collar; and other staff had
complained to management about all the changes made to accommodate Ms.
Klassen.
She was moved to the Resource Library, where there was
comfortable lighting.
Now, much ~' of the gfievor's time was spent in tape duplication.
Since returning to ·Work in late 1986, she had not done large print
production. The tape production too was causing her significant pain. She
doesn't know whether this was because she had to reach a lot, or because
she had to push the buttons on the tape machine, but it was clear that she
was having trouble doing several tasks required of her at the School.
Also, by this point in time, a problem appears to have crept in which
will have great significance in 1988 and laterwby early 1987, Dr. Gibson
was· of the view that the most significant source of Ms. Klassen's .pain was
manual brailling. He will say this in many letters he writes to physicians
and others about :Ms. Klassen's condition (for example, a letter to the
grievor's lawyer in' the tort law suit, V. Santini,'in September 14, 1988, in
which he says, at page 2, that the grievor visited him four times in early
1987, complaining of increasing soreness in her neck and fight shoulder
and weakness in her fight arm and he "felt this was largely due to the fact
that she was spending a lot of time brai'lling with a manual brailler"). Yet,
in fact, the grievor had not used a manual brailler since the car accident in
August 1986! So it appears that the grievor had misinformed her own
family physician about the reason for her condition. In these
circumstances, how could he make a proper assessment of her condition?
And how could any doctor or other health professional, who relied on Dr.
Gibson's history, make a proper assessment of her condition and give an
adequate recommendation for the future, when the fundamental reason for
her problems was misconstrued?
11
The School would not leam ab'out Dr. Gibson's misconception'until
mid-January 1988, when it received a medical report from him, about
which we will speak later.
On May 13, 1987, Dr. Gibson prepared a note to "certify" that Ms.
Klassen was fit to do computer brailling because it required a lighter touch
than manual brailling. But there were two serious problems With this
notebfirsfly, it suggested that Ms. Klassen had been doing manual brailling
and that computer brailling would relieve the problems caused by manual
brailling (when, in fact, she had not been doing any manual brailling); and,
secondly, it made no reference to the problems she had experienced in
working at the computer and whether these problems could be overcome.
As we have just' noted, at this time the School did not know of Dr. Gibson's '
misunderstanding about Ms. Klassen's work, but there is a hint of it in this
certificate from Dr. Gibson.
Ms. Klassen testified that she was not sure whether Dr. Gibson had
even seen a Perkins brailler yet by May 1987, and she acknowledged that
Ms. Chomiak had asked her to take a Perkins in to Dr. Gibson so that the
physician could make a more informed recommendation concerning use of
the Perkins. But, by then, Ms. Klassen's grievance concerning
discrimination was at Stage 2, and her Union representative told her not to
discuss with management whether she could or could not use a Perkins
brailler. We will make no comment concerning the wisdom of this advice,
except to say that this position made it impossible for the School to obtain a
fair assessment of Ms. Klassen's physical ability to do manual brailling,
which task was critical to her job as a Resource Braillist.
On June i, 1987, Ms. Chorniak wrote to Dr. Gibson, virtually
begging for information concerning Ms. Klassen's condition. Ms.
Chomiak explained clearly that the School was trying its best to
accommodate Ms. Klassen. She said that the School had never been
infOrmed by a physician exactly the nature of Ms. Klassen's handicap. She
12
told Dr. Gibson that'she had urged Ms. Klassen to show him the Perkins
brailler. She told Dr. Gibson about Ms. Klassen's physical problems with
computer brailling~ She concluded that the School "would never ask for
confidential information - only some direction regarding Iona's problems
and how we can accommodate them". But there was no answer!
On June 25, 1987, frustrated with the lack of adequate medical
information from Ms. Klassen, Ms. Chomiak wrote to the grievor to say
that, pursuant to Article 5.5 of the collective agreement, for six months
commencing' July 1,. 1987, the grievor would be relieved officially of all
braille asSignments. The grievor would retain her salary level for the six
months. After the six-month period, ff Ms. Klassen was still unable to
perform her full job as a Resource Braillist, she would be assigned to a
position consistent with her health limitations.
On July 7, 1987, Mr. R. A. Wollaston, the Deputy Minister's
Designee at Stage 2, wrote to Ms. Klassen to confirm the Ministry'~
requirement that she doeument adequately her inability to use the .Perkins,
and he recorded her agreement to submit to a specialist's examination.
Several more memos passed concerning this examination and the need for
Ms. Klassen to sign a release, enabling the specialist to provide the Ministry
with a recommendation concerning Ms. Klassen's medical condition. Ms.
Klassen was concerned about this she wanted Dr. Gibson' to see her work
location at the School and she wanted a local orthopaedic specialist to do
the assessment, whereas the School wanted the view Of a specialist in
Toronto. Ultimately, on September 25, 1987, Ms. Klassen informed Ms.
Chomiak that the,,OPSEU Staff Representative had instructed her not to
sign the release forms. This put an end to the possibility of an examination
by a specialist.
Again, we will make no comment on the wisdom of OPSEU's advice,
except to say again that this position made it impossible for the School to
13
obtain a fair assessment of Ms. Klassen's physical ability to do manual
brailling, which task was critical to her job as a Resource Braillist.
On October 7, 1987, Mr. D. A. Neill, Superintendent of the School,
wrote to Ms. Klassen to express his frustration at not being given adequate
medical information, and to make clear the difficulty posed by Ms.
Klassen's refusal to release medical information which.was necessary to
assess her physical ability to do the tasks inherent in her job. He catalogued
the adjustments the School had tried to make to help her. But, he
concluded, the School was not prepared to continue making special
arrangements, given the lack of required medical information and
supporting documentation regarding her health needs. The six-month
relief from brailling, which was mentioned by Ms. Chorniak in her memo
of June 25, 1987, would cease immediately. Effective 9AM on October 8,
i987, Ms. Klassen was to resume all of her responsibilities as a Resource
~ Braillist.
The only medical information that the School had up to this point
was Dr. Gibson's letter of November 9, 1986, and the School would assign
Ms. Klassen to tasks in accordance with Dr. Gibson's recommendations.
The Union alleged that this action by Mr. Neill is at the heart of the
School's violation of Article 18 of the collective agreement. Counsel for
Ms. Klassen argued that, when, in June 1987, the School granted Ms.
Klassen relief from brailling until the end of 1987, the School established a
state of things which could not be interrupted. In our view, this is not
correct.
Firstly, in early. October 1987, the School had no adequate medical
information that showed that Ms. Klassen was 'incapable of manual
brailling. The grievor had totally stymied every fair and reasonable effort
to obtain adequate medical information. She appears to have
misrepresented the source of her problems to Dr. Gibson, who was under
the impression that she had been manual brailling throughout the period
14
after her accident. "She had failed or refused to show the manual brailler to
Dr. Gibson. She' had refused to give the Ministry access to medical
information which was to come from an examination by a specialist.
Secondly, the six-month relief period which was commenced
according to Ms2 Chomiak's memo in June 1987, was clearly a
compromise solutiOn reached unilaterally by Ms. Chomiak out of utter
frustration at the grievor's refusal to provide adequate medical
information. The School was bending over backwards to give Ms. Klassen
a place in its workforce, and to maintain the grievor's salary. But this
accommodation was not binding on the School. And, in our view, there
was no need whatsoeVer for tl3. e School to maintain the accommodation,
given the lack of adequate medical information to justify the special
treatment of the grievor. Indeed, in our view, not only was there no need
for the School to maintain the accommodation, but the School was now
required to terminate the grievor's special status. The Sch6ol had a
responsibility to the gfievor, but it also had a responsibility to the public to
use its funds wisely. WithOut adequate justification, .the School could not
maintain a special status which gave the grievor full salary, though she
performed almost none of the tasks of her position. Every effort the
School made to help :the grievor was defeated by the grievor's utter lack of
cooperation.
So Ms. Klassen returned to manual brailling and other duties. The
evidence is not clear about precisely how long each day she was on the
Perkins. It appears to have been for one and one-half hours per day, or a
little longer by early November. She experienced muscle tightness and
increasing pain, until November 19 or 20, 1987, when she went off work..
She did not bring her physical difficulties' 'to the attention of her
supervisors. She simply called in to say she'd been injured at work and
would not be in. (Note: She did not ret-am until 1991. On March 23,
1990, the Workers' Compensation Board, after a hearing, concluded that,
15
on November 20, 1987, when Ms. Klassen left work, she had.an accident
which aggravated a non-compensable underlying cervical disability (the
result of the car accident), and she' was entitled to temporary total disability
benefits from November 21, 1987 to January 31, I988. The WCB decided
that the level of disability after February 1, 1988, was the same as the level
experienced before October 8,' 1987, and therefore this level of disability
was attributable to the non-compensable car accident and not to any
problem in the workplace.)
By early January, there was still no doctor's note from Ms. Klassen,
and the School wanted some evidence of the reason for her absence from
work. Superintendent Neill tried a number of times unsuccessfully to
~reach Ms. Klassen by telephone. Then, on January 7, 1988, he wrote to
her to tell her that the School needed a medical certificate to explain her
absence or no further pay cheques would be delivered to her. "The
certificate must state that you continue to be unable to remm to work and
must give a prognosis for your return."
Some two weeks later, Ms. Klassen brought to the School a letter
from Dr. Gibson, dated January 7, 1988, in which the physician set out in
some detail the history of Ms. Klassen's condition, as he saw it. He spoke
of her physical difficulties at work right after the accident in 1986, and
said that the problems resulted from the'"large mount of photocopying"
she was doing at the time. (But she had been doing no photo-copying at the
time!) He spoke of her difficulties in the spring of 1987, when he
suggested to Ms. Klassen that "the neck spasm was 'being aggravated by
long hours in front of the manual brailler". (But this was totally.
incorrect!! Ms. Klassen had not touched a Perkins brailler from the time
of her car accident to October 1987. In essence, Dr. Gibson attributed
virtually all of Ms. Klassen's physical problems throughout the period of
16
her return to work to the Perkins.) And he spoke of her high stress level,
attributing most of.' this to "the turbulent employer/employee relationship
between Mrs. Klaisen and The Ross Macdonald-School over the last 3
Years ....... she feels Constantly threatened with loss of her job". He
concluded that he saw "no mason why this lady could not remm to work in
February on a programme involving less manual brailling and no work
involving elevation of the right arm to shoulder level".
This medical report was highly unsatisfactory and inadequate. Dr.
Gibson had his facts entirely wrong about the manual brailler. He seemed
to know nothing about the problems that all the other physical activities
caused (in particular, he seemed to think that computer brailling would
cause no problem,, whereas the School had seen Ms. Klassen have many
physical problems while using the computer). He seemed to have a view of
the employment relationship which was highly skewed for much of 1987,
the School had bent over backwards to accommodate Ms. Klassen, yet the
physician appeared to think that Ms. Klassen's stress was attributable almost
entirely to the School's bad faith. The doctor may have known what was
wrong with Ms. Klassen, but he knew very little about what was causing
her problems. The .fundamental basis of his vocational prognosis was
seriously 'flawed. Either Ms. Klassen had misinformed him about what had
occurred at the School, or Dr. Gibson had simply been wrong in recording
what she had said. Whatever the reason for his misconceptions, his report
was not a sound bas. is upon which to bring Ms. Klassen back to work.
Ms. Klassen: testified in cross-examination that she did not tell Dr.
Gibson that she had .spent long hours in front of a manual brailler in the
spring of 1987. She. testified that she did not know of Dr. GibsOn's error
until the hearing at the Workers' Compensation Board in 1990. However,
as we will see later, this misconception appears in reports from other
physicians and professionals, and our conclusion is that Ms. Klassen must
have misinformed them all.
17
So Ms. Klassen did not return to work. The School stopped
automatic payment of her pay cheque, but arranged for a cheque to be
prepared manually. Mr. NeilI left a message about this on Ms. Klassen's
answering machine.
Through 1988, the School received two letters from Dr. Gibson,
saying that Ms. Klassen was still under his care.
In late-August, the School received a copy of a letter written by Dr.
S. J. Ritchie to MS. V. Santini, the gfievor's lawyer in her suit against the
driver of the other vehicle in the 1986 car accident. The letter came to the
School through one of the Government lawyers involved in the various
proceedings with Ms. Klassen. This letter was dated January 15, 1988, and
referred to a medical examination on October 13, '1987. Dr. Ritchie said
"She works as a resource braillist at Ross MacDonald School. This
involves, braille printing. She felt that running a manual braille printer
aggravated her shoulders and neck and that (she) is quite able to work
provided she used an automatic (computer) brailler ....... Unfortunately her
job as a brailler requires that she uses a manual machine and this certainly
aggravates her neck condition. She undoubtedly would be perfectly
comfortable with the new computer type of braillers."
And so again, the SChool saw that Ms. Klassen was not telling her
doctors the truth about her work experience. Dr. Ritchie is basing 'his
report on his meeting with Ms; Klassen on October 13, 1987. 'By that.date,
she had done only about three hours work on the manual brailler since her
car accident in 1986! She had just returned to very limited use of the
Perkins. Again we have a physician thinking that virtually all Ms.
Klassen's problems related to her use of the Perkins, when in fact she was
not using the machine at all for eleven months, and still having serious
problems coping with the physical demands of.the workplaCe. And Dr. '
Ritchie too got the impression that Ms. Klassen had no physical problems
working at a computer, when in fact she had experienced a great deal of
pain, needed manY adjustments, and still had to go home in March 1987
because .it wasn't Possible to find a solution to all her problems at the
keyboard.
in our view, there seems to be no doubt from Dr. Ritchie's letter that
his misconception .was a result of Ms. Klassen misinforming him about
what had occurred at work. Either both Dr. Gibson and Dr. Ritchie were
wrong about the. same thing when taking down their notes from Ms.
Klassen, or Ms. Klassen told both of them the wrong facts about her use of
the manual brailler during the eleven months between her car accident and
October 8, 1987. We think it is inescapable that Ms. Klassen simply fed
her physicians an incorrect version of the facts.
in early September 1988, Ms. Klassen called the School tO say she
was returning to work on September 6. Mr. Neill left instructions that Ms.
Klassen was to be sent to his office if she appeared, and she was to be given
no work. ~
on September 6, she arrived at the School around 8AM. Mr. Neill
met her and advised her to get.a Union Steward. Around 8:30, there was a
meeting in Ms. J. Field's office--she was the Supervisor of the Resource
Services Library, and a member of the bargaining unit. in the room were
Mr. Neill, Ms. Field, Ms. Klassen, and Mr. J. Dickenson, a Union Steward.
There is some dispute concerning what occurred at the meeting, but this
dispute is not critical. It is clear that Mr. Neill told Ms. Klassen that she
could not remm to. work without an adequate medical opinion that she was
fit to return to work. There is some dispute about whether, at. that
meeting, Ms. Klassen produced a report dated July 26, 1988, from-Dr. C.
Quartly, a specialist in physical medicine and rehabilitation in Burlington.
Mr. Neill testified that the report came later in September with a coveting
note from Ms. Klassen. Ms. Klassen says that she tried to give the report
to Neill on September 6. Neither Mr. Dickenson nor Ms. Field could
recall whether anything was said or done about the Quartly report at the
19
meeting. However, the covering letter of September 15, 1988, which
reached the School on September 21 by registered mail, reads as if this is
the first time that Ms. Klassen brought Dr. Quartly's report to the School's
attention.
In our view, it doesn't matter whether the School first saw Dr.
Quartly's report on September 6 or on September 21. In either event,
there are serious 'problems with the doctor's report. Firstly, Dr. Quartly
relies on the history as set out in Dr. Gibson's letter of January 7, 1988,
and Dr. Ritchie's letter of January 15, 1988--and we have already said that
both of these letters were based on the fundamental misconception that Ms.
Klassen .was using a manual brailler after her car accident, and that this
usage was the primary cause of her physical problems at work. Secondly,
and more importantly,.Dr. Quartly spoke of Ms~ Klassen needing treatment
"in the chronic pain mode[". The doctor recorded a number of the medical
efforts which had been made, some appearing to be of help and others
which were not helpful. She would "continue to-monitor Ms. Klassen's
treatment and assessment of her progress". Thirdly, this report said
nothing about Ms. Klassen returning to work, 'either at the time the report
was written, or at any particular time in the future.'
Along with the Quartly report of July 26, Ms. Klassen sent a note
from Dr. Quartly, dated September 6, 1988, in which the doctor said that
Ms. Klassen was fit to return to work on September 6, to perform the
essential duties of a Resource Braillist other than manual braille
production. Dr. Quartly said that more detail could be found in her report
of July 26.
So the Quartly note of September 6 relied on the report of/uly 26,
which relied on the misconceptions of Drs. Gibson and Ritchie. Not a firm
foundation for a return to work by Ms. Klassen.
Mr. Neill concluded that, in light of the medical information so far,
it would be best ff Ms. Klassen stayed away from work.
20
On'September 30, at around 8:30AM, Ms. Klassen showed up at the
School's Resource Library. She told Ms. Field she had come to meet with
Mr. Neill. Mr. Neill instructed Ms. Field to send the grievor to his office.
Mr. Neill asked Ms. Klassen to leave the School, or he would call the
police. Ms. Klassen took up a position in the foyer. Mr. Neill called the
Ministry's lawyer and was advised not to' call the police, but to:tell Ms.
Klassen once again to leave. He did tell her this again, but she stayed in the
foyer until late in the afternoon that day.
On October 5, Ms. Klassen fried her second grievance the one with
which we are dealing.
In October or November 1988, the School received a copy of a
report, dated September 6, 1988, by Dr. R. A. McKnight, a Hamilton
specialist in physical, rehabilitation and sports medicine and fimess
appraisal. The repOrt was prepared on referral from Dr. Gibson and was
for the grievor's laWYer in the car accident suit. Dr. McKnight tOo had a
misconception about Ms. Klassen's use of the manual bmiller. He refers to
the period in late 'November 1986 and early 1987 fight after her car
accident and says that she experienced increasing discomfort in her fight
neck and shoulder area as a consequence of. the hours of manual brailling
she was assigned at the School. He refers to Ms. Klassen's training on the
computer, but appears to have had no idea about the physical problems she
experienced while:' on the keyboard. He concludes ~that Ms. Klassen's
injuries were exacerbated by a factor of 35% by her use of the manual
brailler and related activities,. Again, a fundamentally flawed medical
report because it was obviously based on misinformation given to the
doctor by Ms. Klassen. Dr. McKnight did know that, from March to
October 1987, Ms. Klassen did not work on the-manual brailler. He found
· Ms.. Klassen to be ,'straightforward and credible in her commentary". The
best that can be said for Dr. McKnight is that he recognized the possibility
of error as a result of his one-sided view of things. He concluded
21
"Recognizing the bias under which I fred myself, having heard the history
of events only from Mrs. Klassen's point of view, I respectfully submit that
her treatment by the W. Ross MacDonald School personnel has been
somewhat less than sensitive and that the entire matter has sunk to the level
of a vendetta''. All of which illustrates with great force the necessity of
hearing both sides of a story and ensuring that one's facts are straight
before prognosticating! We now know that, by the fail of I988,' Ms.
KIassen had misrepresented what work she did at~ the School to Drs.
Gibson, Ritchie, and McKnight and that Dr. Quartly had relied on the
misconceptions of Gibson and Ritchie in preparing her report.
Before leaving 1988, a word about Ms. Klassen's income situation.
As we've seen, for a while after leaving the School in November 1987, she'
received Workers' Compensation. This was granted to her retroactively
after the heating in early 1990. She was also entitled to sick leave and was
receiving some income from this. But her sick leave credit would nm out
around May 1988, and she was advised to apply for Long Term Income
Protection under.the collective agreement (LTIP). By September/October
1988, Mr.' Neill learned that the LTIP was almost in place, but a few
documents needed completing. In March 1989, she was approved for
LTIP, retroactive to May 1988.
In the fall of 1989, the School learned that Ms. Klassen had been to
Chedoke-McMaster Hospitals in Hamilton for a vocational assessment in
May/June 1989. Ms. Klassen had been referred for the assessment by Dr.
Quartty, and the assessment was carded out by Ms. J. Durham. On page 2
of Ms. Durham's report, she speaks of the period after Ms. Klassen
returned to work in November 1986, and she says, referring to Ms.
Klassen, "It was her impression that she initiaIly performed more manual
brailling than the time previous to her motor vehicle accident." This is
22
astounding! Ms. Durham testified at our hearing that this information
came directly from'Ms. Klassen in the interview. Ms. Klassen had told Ms.
Durham clearly that she was manually brailling from November 1986
through to November 1987. Ms. Klassen acknowledged in her cross-
examination before Us, and there was no doubt about this, that she did no
manual brailling after the car accident until October 1987. Why did she
continue to give .incorrect information on a fundamental point to her
doctors and now. to the person charged with making a vocational
assessment? ~
Ms. Durha~n concluded that Ms. Klassen required certain
accommodations and equipment. In brief, these were:
· alternating work positions and/or task every hour,
· a work table set at a particular height;
· ergonomic Office chair on casters;
· a high-backed Obus Form;
· foam ann rests;
· a footrest;
· to avoid glare--a special computer screen attachment, mat wall
surface behind the screen, special room lighting.
If these accommodations were made, Ms. Durham felt that 'Ms. Klassen
could return to her:job as a resource braillist, ff she could use the computer
for brailling instead of the Perkins. However, Ms. Durham said it was
necessary to visit Ms. Klassen's workplace to see the work environment and
to determine how the accommodations could be implemented.
Mr. Neill's initial concern about this was that the tasks Ms. Durham
had in mind for Ms. Klassen were "light, sedentary" work, and this was not
the type of'work in the Resource' Library, where it was necessary for the
employee to do copYing, tape duplication, etc. Ms. Klassen had to move
job to job every hour--what could she do at the School?
23
Nonetheless, Mr. Neill discussed the report with Ms. M. L. D0xtater,
a vocational counsellor with the Ministry's Vocational Rehabilitation
Service (VRS), and it was agreed that the School would cooperate in an on-
site vocational assessment.
1990
In early 1990, a Job Trial Agreement was reached, according to
which Ms. Klassen would be assessed at the School for six weeks, from
April 2 to May 11. The Agreement was among Ms. Klassen, the School,
Vocational Rehabilitation Service (VRS), and the Vocational Assessment
Unit at Chedoke-McMaster Hospitals. It would be conducted by Ms.
Durham.
In January, Ms. Durham did a job site assessment and produced a
report dated January 29, 1990.
VRS agreed to provide the proper chair and Obus Form. The
School' agreed to put together the computer hardware and software
necessary to help Ms. Klassen learn computer brailling. While Ms.
Durham did not call for it, the School tried to provide a special copier with
a side feed, to help Ms. Klassen (given all the Government purchasing red-
tape, it took until April t° get a copier; but it was not satisfactory and
another was ordered, which arrived in June). '
Ms. Doxtater was instructed to purchase several light bulbs of a type
recommended by Ms. Klass. em In May 1990, after four weeks of the trial
period, Ms. Klassen complained of headaches and eye problems. The
School asked the appointed lighting expert about the lighting and was told
to obtain a 3200K balanced system. This recommendation went to the-
supplier who said such a system wasn't available, but he would obtain the
equivalent. By early June, the School had purchased 60 bulbs at $12 each.
In the meantime, Ms. Doxtater had a car accident and was now off work.
Ms. M. Friesen became the VRS counsellor involved with-this case. On
24
May 8, 1990, Ms. Friesen wrote'to the School to say that the assessment
was on hold because Ms. Klassen was experiencing pain and soreness in her
eyes and would be seeing several doctors. Until the eye problems were
sorted out, the vocational assessment would be suspended.
On May I0, 1990, Ms. Klassen wrote to the School complaining
about some of the 'information which was in Ms. Durham's job site
assessment report of January 29, 1990. Indeed, she instructed Mr. Roland,
her lawyer in these ~proceedings, to set down her concerns.
Mr. Neill replied on May I8, explaining that the School and VRS
were simply .trying to do precisely what was called for by Ms. Durham. If
Ms. Klassen had complaintS, she should discuss them with Ms; Durham.
We' don't know if Ms. Klassen ever raised these concerns with Ms.
Durham.
Ms. Durham testified before us that the School was amongst the most
cooperative employers with whom she had ever had the pleasure to deal.
There was always someone available to answer her questions and to speak
with her. The SchOOl acted immediately on any recommendations she
made.
.. In October 1990, Ms. Doxtater called Mr. Neill at the School to say
that she was back to'work part-time and that it was time to continue the
vocational assessment of Ms. Klassen. By now, there were new players
Ms. Durham was no longer involved; instead, there was Ms. M.
Westmoreland (an 'ergonomist from McMaster University), and Ms. A.
Taylor, a private practitioner in rehabilitation medicine (who. was on
contract with Confederation Life, Ms. Klassen's LTIP carrier, who was
most interested in the assessment).
25
On February 19, 1991, a new Work Trial Agreement was signed,
involving the School, Ms. Klassen, VRS, and Confederation Life. This
provided for a fifteen-week program.
This assessment led directly to Ms. Klassen's return to a position at
the School, where she remains today.'
Conclusion
Article 18.1 requires the employer to take reasonable measures for
the health and safety of its employees. In our view, the events which we
have described demonstrate that the School in this case did everything it
could throughout the piece to attempt to accommodate Ms. Klassen and to
make it possible for her to function effectively. There is no need for us to
say anything about the requirements of the Ontario Human Rights Code, or
the impact of the Code on the School's obligations under Article 18.1 of the
collective 'agreement. The simple fact is that the School always stood ready
to accommodate Ms. Klassen, if she would cooperate with the School.
Whatever the requirements of the Code, the School tried to accommodate
Ms. Klassen.
The problem throughout was the lack of 'adequate medical
information provided to the School. The School had to function "in the
dark" until the full vocational assessment was done in 1991.
And there was a lack of adequate medical information for two
reasons: firstly, virtually all of the medical reports which the School did
receive were obviously flawed because they were based on an
understanding of the facts which was incorrect (and, as we have said in tiffs
award repeatedly, we f'md this was due to Ms. Klassen misinforming her
doctors and other professionals about what work she was doing at the
School during late 1986 and most of i987); and, secondly, Ms. Klassen ·
refused access to additional medical information or examination, which
26
would have proved: helpful to the School in determining what it ought to do
to assist her.
It was clear throughout the post-car-accident period, up to 1991,
that, in order to make all the necessary accommodations and arrangements
for Ms. Klassen, a full vocational assessment with her full cooperation
would be necessary. This was apparent because all the School, s efforts
came to naught. The School gaVe Ms. Klassen virtually everything she
ever requested, and still she suffered eye strain, headaches, stress, and
physical pain. By mid-1987, Ms. Klassen thought that the computer was
going to be her salvation, but she had enormous difficulty grasping the
brai!ling programs and understanding the level of proficiency which was
required of her. And she experienced serious physical problems in the
operation of the computer eye strain, neck, ann and hand pain (virtually
none of which was reported by her to her doctors, who kept writing that
all would be solved if she would just be allowed to use the computer for
brailling). The simple fact is that Ms. Klassen herself had no idea what
accommodations would work for her. But instead of devoting her energies
to working with 'the School to find a solution, she chose to fight the School.
27
In these circumstances, we deny the grievance.
Done at London, Ontario, this s.r~ day of August ,1992
"I Dissent" (Dissent ~,ithout ~rritten reason)
T. Browes-Bugden, Member
M. O'Toole, Member