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HomeMy WebLinkAbout1993-0782.Stones.96-02-26 $l ONTARIO EMPLOYES DE LA CDURONNE , ('!,J('" CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT ' . BOARD DES aRIEFS 180 DUNDAS $TREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1 Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 782/93 OPSEU # 93E087 IN THE MATTER OF AN ARBITRATION r Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEME~ BOARD BETWEEN OPSEU (stones) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE M Saltman vice-Chairperson FOR THE D. wright GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE D. strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING January 6, 1994 July 26, 27, 1994 Written submissions received on October 20, 1994 December 1, 1994 February 1, 1995 May 23, 1995 July 20, 25, 1995 ---..- r I c R " AWARD ~ / The Gnevor ill tins case, Jenmfer Stones, alleges that the Employer faded to I accommodate her dtsabihty for the penod from Apnl19 to May 24, 1993'1 r The relevant facts are as follows The Gnevor has been employed at the WhItby PsychIatnc HospItal as a RegIstered Nurse (classIfied as NJrse 2, General) since February, 1990 In or around November 28, 1991, the Gnevor sustamed an Injury on duty to her lower back as a result of wmch she was off work and ill receIpt of workers' compensatlon. She remamed offwork ootll June 1, 1992 when she was placed on modIfied dutIes WIth multIple restrIctIons. Although the Gnevor lDlually worked for only two hours a day, there was a gradual illcrease ill hours thereafter so that by November, 1992, she was workmg a full eIght-hour day Upon her return to modrlied dunes ill June, 1992, the Gnevor was assIgned to work m the medtcal librmy as part of an mformal modIfied work programme. That programme was formaltzed followmg consultanon between the partles ill or aroUnd October, 1992 The purpose of the programme, the eVIdence mdIcates, IS to facilItate the return to work of employees followmg illness or Injury Although an attempt IS made to place employees m theIr pre-illness or mJury pOSItIons, the Employer also consIders aSSIgnments ',t I (tj, I 2 (whether assocIated wIth any partIcular posItIOn or number of pOSItIOns) whIch are _ I consIstent wIth the employees' restnctlons and'offer productive and meanmgful work. Some SIX to eIght weeks after the Gnevor commenced modIfied dutIes, the regular libranan (who was the only other employee aSSIgned to work ill the medIcallibra.ry9 , went off on maternity leave. Upon the librarIan's return to work In January, 1993, the Gnevor's modrfied duty assIgnment was altered such that she worked two days a week m the library and three m the pharmacy , NotwIthstandIng that the Gnevor contmued ill her modIfied duty assIgnment until the end of January, 1993, some tune ill the fall of 1992, the Workers' Compensatlon Board determmed that the Gnevor was fit to return to her pre-mjUIY employment effectIve September 28, 1992. In December, 1992, 'however, the WeB arranged for a functIonal ablhtIes evaluation to be carned out on the Gnevor That evaluation resulted m multiple restrIctions WIth respect to hftmg (up to 10 lbs. only), carrymg (up to 20 lbs only), kneehng. crouchmg, 'bendIng and prolonged SIttIng, standms and walkmg. ~ addItIon, It was recommended that repentive, sustamed forward fleXIon of the trunk and qUIck rot~tIOnal ( , movements of the lumbar sectIon of the tnmk be aVOIded and that allowances be made for changes ill pOSltlon as reqwred. Subsequently, on December 23, 1992, the W C B reIterated its earlier detennmation that the Gnevor was fit to return to her pre-mjury employm~nt.\wlth - - t: ~ ~~ 3 no restrictIOns As a result, the Gnevor's workers' compensatIOn benefits were termmated retroactlve to November 23, 1992. That decIsIOn has not been appealed. Havmg regard to the decIsIOn of the W C.B temunatmg the Gnevor's benefits \ on the grounds that she was fit to return to her pre-mJury employment With no restncbons, / on the one hand, and the Gnevor'sconbnumg claun for accommodatlon as well as the results of the funcbonal abihtles evaluatlon, wruch set out multIple restnctlons, on the other, the / Employer took steps to arrange for an mdependent medical exammabon. However, before such arrangements could be made, the Gnevor was involved m a motor vehIcle aCCident on February 1, 1993, as a result of which she suffered a partlally separated shoulder and aggravated her lower back mJury As a consequence of the mJunes sustamed m the aCCident, the Gnevor went off work on short-term SIck leave under the care of her fanuly phYSICIan, Dr Burwell. She underwent phYSiotherapy on a daily baSIS throughout the penod of her absence { " During the penod of the Gnevor's absence, Dr Burwell completed five medtcal cerbficates whIch were subrrutted to the Employer The first, whIch was lD the form of a swnmary note dated February 3, 1993, mdtcated that the Gnevor would be off work until February 15, 1993 The next four were all on a standard form utilIzed by the Employer for thts purpose known as an Employee RehabIlItatIOn Form. The first of these, dated February 11, 1993, mdttated that the Grievor had sustamed an mJury to her nght shoulder ~ r~ ----.. 4 and lower back, that she would be fit to return to work on Februaty 25th, that modIfied " diltIes would be reqwred for an mdefirute ,penod (in fact, It was recommended that she be \, returned to her preVIOUS modIfied duty asSIgnment m the library and .the pharmacy), and that .- there would be restrIctIons on hftmg over 15 lbs. The second, dated February 23, 1993, mdtcated restrIctIons because of lwnbar and shoulder stram WIth respect to stoopmg, hftm~ more than 10 lbs., prolonged standmg and overhead work. Moreover, thIS form mdlcated that the Grievor would be fit to return to work on March 15th, that modtfied dutIes would be reqUIred for a penodofone month, and that a reassessment of the Gnevor's capabilIties would be undertaken In one week (whIch eVIdently dId not take place) The thud, dated ~ March 10, 1993, whIch made reference to restnctIons on repetItIve bendmg, stoopmg, \ pushmg/pullIng and lIftmg more than 15 Ibs., mdICated that the Gnevor would be able to return to work on April 12, 1993 and recommended modtfied dutIes for a penod of two weeks The fmal Employee RehabilItatIon Form, dated Apnl 7, 1993, indIcated that the Gnevor would be fit to return to work on April 19th, that modified dutIes would be reqUIred for a penod of three we~ks, and that there were restrIctIons on pushmg/pullIng, IIftmg more than 15 lbs. and Jhe penorinance of overhead, work. The Gnevor testIfied that as of April 7,. 1993, her back had ,returned to the same condIllon It had been to pnor to the motot vehICle aCCIdent and that, except for restnctIons on lIftIng, heavy pushmg and overhead work, she had full range of movement m her shoulder . '- -{: :~ 5 On or about Apnl 8, 1993" the Grievor telephoned the OccupatIOnal Health Nurse, Cheryl Rendell, to adVise that she had been cleared to retwn to modified dutIes with certaIn restncnons on April 19th. The Gnevor then proceeded to describe these restrictIons and mqUIre as to the nature of the modIfied work WhICh was available Ms. Rendell mdIcated that she would contact the Staffmg Co-ordInator for Nursmg, Vicky Halpenny, to explore accommodatIOn m some aspect of nursmg. In fact, Ms. Rendell contacted Ms. Halpenny followmg her return from vacatIon on or about April 13th. At that tIme, a discus- sIOn took place as to the nature of th~ accommodatIon which could be made to :retwn tlfe Gnevor to some form of nursmg dutIes. In thiS regard, conSIderatIon was gIven to placmg the Gnevor on the Psychotherapy Urut ("PIU") where It was felt that she could use her nursmg, I.e., counsellmg, skills and yet work wIthm her restnctIons. However, It would appear from the eVIdence (which was hearsay) that the Nurse Manager on the PTU was not prepared to accept an employee on modIfied duties as the Umt Drrector (who was a psychIatrIst) had recently announced hIs departure and It was felt that the mtroductlOn of a new staff member at that partIcular tIme mIght have had a disruptIve effect on the patIents In addItIon, the Nurse Manager felt that safety nught be compronused If a patIent were actmg out on a shIft where there were only two staff members scheduled, one of whom had certam phYSICal restncnons. It was conceded on cross-exammatIOn, however~ that an employee on modrlied dunes would not be counted m the complement of two employees and that, In any event, the Gnevor would have been assIgned, at least Imtlally, on the day ShIft when the .- complement was conSiderably greater (1.e , five nursmg staff) i' ~, 6 AccordIng to Ms. Halpenny, conSIderatIOn was also gIVen to retwnnig the Qnevor to her pre-Injury ward. However, as there were already three employees on modIfied "'- duty assIgnments on that ward, the Nurse Manager felt she could not accommodate another Moreover, although consIderatton was gIven to aWard Clerk assIgnment for the Gnevor, thIS placement was rejected apparently because workmg as a ward clerk 1J1volves prolonged sIttmg, whIch Ms. Halpenny felt the Gnevor could not do (Although there was no restrIctIon on prolonged SIttIng m the medIcal certIficates submItted by the Gnevor, the functIOnal abIlItIes evaluatIOn conducted under the auspIces of the W C B noted such a restrIction.) FInally, the eVIdence Indicates that consideratIOn was also glVen to placement of the Gnevor In the pharmacy (whIch was rejected apparently because another employee had been assigned to modified dutIes in the pharmacy although the eVIdence was unclear as to when -thIs asSIgnment was made) and m th~ library (whIch was rejected eVIdently because the librarIan had returned from matermty leave and there was no productIve work for another full-ttrne employee). However, It would appear that, with the pOSSible exceptIOn of the ward clerk assIgmnent, none of these potentIal placements was ever dIscussed wlfu the Gnevor In any event, pnor to proVIdmg accommoda,tIon, as questIons remaIned concermng the extent of the Gnevor's medIcal restncttons,the deCISIOn was taken to proceed WIth arrangements for an mdependent medIcal exammatIon. AccordIngly, on or about April 27, 1993, the Gnevor was asked to attend a meetmg to diSCUSS the matter In accordance . 'f' I ~ 7 WIth thts request, the Gnevor attended at the HospItal on the afternoon of Apnl 28th along WIth her Uruon representatIve, Barry Casey In attendance for the Employer were Ms. Halpenny and theW C.B.lAttendance Management Co-ordmator, Karen Clark. At that tIme, the Gnevor was asked to consent to an mdependent medical examInatIon at the CanadIan Back Instttute. The Gnevor, on adVIce fromMr Casey, took tins request under adVIsement. The next day, followmg, consultatIon WIth Vicky Scott, an OPSEU benefits consultant I , famihar WIth the CanadIan Back InstItute, the Gnevor consented to the mdependent medical examtnabon. At the meetmg, the Gnevor mdtcated that she was willmg and able to return .l to modIfied dutIes pendIng the outcome of the mdependent medical. Accordmg to the Employer WItnesses, the Gnevor was adVIsed that efforts were bemg made to find modIfied \ work whIch was conSIstent WIth her dIsabihttes. The Gnevor, however, could not recall any dISCUSSion of modtfied work eIther at the meetIng or in conversation with Ms Halpenny the followmg day For her part, Ms. Halpenny testIfied that she adVIsed the Gnevor the I followmg day that a ward clerk assignment was under consideratIOn, whIch IS reflected m wntten correspondence to the Gnevor dated May 3, 1993 Nevertheless, the Gnevor mamtamed that she was told that there was nothmg avaIlable, that an mdependent medIcal examtnatton was requrred to determme whether she was able to return to nursmg dutIes) and ./ that "it was not m the best Interests of the HospItal" to placener m a modIfied work aSSIgnment pendmg the outcome of that exanimatIon. . --- ~ ( ~>' J 8 The Gnevor underwent an assessment at the Canawan Back InstItute on May 4 and May 5, 1993 As a result, a report was prepared and submItted to both Dr Burwell and the Employer on May 18th. Ihat report recommended that the Gnevor return to modrlied dutIes m a nursmg.;.related area for half days WIth restrIctIons on prolonged bendmg and stoopmg, overhead lifhng (up to 151bs. only) and lIfting, other than overhead bfting (up ) to 30 lbs. only) In addItIon, frequent postural changes were recommended. It was also suggested that the Gnevor attend some form of active exerCIse treatment programme for the balance of three hours a day Upon receIpt of the report from the CanadIan Back InstItute on or about May 18, 1993, Ms Rendell contacted Ms. Halpenny and Ms. Clark WIth a VIew to placmg the Gnevor In a modtfied duty aSSIgnment and arrangmg for an extensIOn of her treatment programme at the CanadIan Back InstItute By the followmg day, arrangements had been made for treatment to be contmued and for the Gnevor to be placed In the Acute Inter- mediate lreatment Urut ("AITU")as a medIcatlons nurse effecuveMay 25th. Ms. Rendell then contacted the Gnevor, mformed her of the arnmgement, and requested that she obtaIn approval from her famIly phYSICUul for the proposed modIfied work programme. In accordance WIth thIS request, Dr BurwelI prepared a medIcal certificate dated May 21, 1993, whIch described the nature of the Gnevor's mjwy as "dIscogeruc mechanical back pain" and mdIcated that she was fit to return to modIfied duties on May 25th under restrictions described In the report of the CanadIan Back InstItute ~~- ... ,~ -J 9 Upon her return to' work on May 25th, the Gnevor spent half days workIng on the AlTU and half days m treatment WIth the CanadIan Back InstItute for which she was paId her full salary Although the Gnevor's duties on the AITU mvolved pushmg a medIcatIons cart, Ms Rendell felt that these dutIes were consistent WIth the restnctIons set out in the report of the CanadIan Back InstItute (although mconsIstent WIth restrIctIOns on p,-!shmg and pullmg mdIcated m the final Employee RehabilitatIon Form prepared by Dr BurWell) The Gnevor, however, felt there was no mconsistency as the effect of these restr~ctIons was not ) to prohibIt, but only to InnIt, the performance of these actIVIties In any event, the Gnevor testtfted that the medIcatIons cart, whIch was on casters, dId not -Involve pushing and pullmg. She also testIfied that although her back and shoulder mJunes' had not been resolved pnor to her return to work on May 25th and although she requrred a small modificatIon to enable '- her to penorm the Job (namely, the prOVISIon of a stool for overhead ltfung), she felt that her medIcal condItIon did not hmder her job performance. . (' On July 19th, followmg completIon of the, programme at the Canadtan Back Institute, the Gnevor returned to her pre-injury employment as a Registered Nurse on the Short-term Assessment and Treatment, and InterventIOn Observation and Treatment Umts where she worked under lumted restrIctIons \ Although the Gnevor's W C.B elatm was termInated effectIve November 23, 1992, the elann was reopened on two occaSIOns m 1994 as a result of short-term flareups to' ~, ~, 10 her back mjury The Gnevor receIved workers' compensatIOn benefits in respect of both 'of these f1ar~ups . Ihe Issue l~ whether the. Gnevor ~>ught to have been accommodated for the penod from Apnl19 to May 24, 1993- The obhgatIon to proVIde accommoda~IOn arises from the protectton agamst dIscnmmatIon on a nwnber of grounds, mcludIng handicap, set out In ArtIcle A.l of the collectIve agreement, whIch IS to the followmg effect: A.l There shall be no dISCnmInatlOn practIsed by reason of race, ancestry, place ofongm, colour, ethnIc ongm, CItIzenshIp, creed, sex, sexual onent- atIon, age,mantal status, family status, or handtcap, as defmed m sectIon 10(1) of the Ontano Human Rtghts Code (OHRC) Arttcle A.l refers to the Human RtghtsCode, the relevant proVISIons of which are as follows . . , 5(1) Every person has a nght to equal treatment with respect to employment WIthout discnmIDatIon because of race, ancestry, place of ongm, colour, ethruc ongm, CItIzenshIp, creed, sex, sexual on entatIon, age, record of offences, mantal status, farilily status or han.dIcap 10(1) In Part I and In thIs Part, "because of handIcap" means for the reason that the person has or has had, or IS beheved to have or have had, (a) any degree of phYSICal dtsabIhty, mfmnity, malformatIon or dIsfigurement that IS caused by bodIly mjury, bIrth defect or illness . '-' 'c 11 r 1 (e) an mjury or dIsabihty for whIch benefits were clanned or receIved under the Workers' CompensatIon Act; 17( 1) A nght of a person under thIs Act IS not infrInged for the reason only that the person IS mcapable of penormmg or fulfilhng the essentlal dutIes or requrrements attendmg the exerCIse of the nght because of handtcap (2) The ComnnssIOn, a board of mqurry or court shall not fmd a person incapable unless It IS satIsfied that the needs of the person cannot be accommodated wIthout undue hardshIp on the person responsIble for accommodattng those needs, consIdenng the cost, outSIde sources of fundmg, If any, and health and safety requrrements, If any . /' There was no dIspute between the partIes that ArtIcle '''A" of the collectIve agreement permIts the Umon to enforce the Employer'.s obhgatIons under the Human RIghts \ Cllik m proceedmgs before the Board. These obhgatIons~ It was agreed, mclude the duty to accommodate a person WIth a handIcap to the pomt of undue hardslup Moreover, there was no dIspute that the Gnevor was such a person and that she was accommodated by the Employer from May 25. 1993 The dispute. as It developed, was whether the Employer wa~ requrred to accommodate the Gnevor In respect of an earher penod, namely. from Apnl 19 to May 24, 1993 In tlus regard, the Employer took the posItIon that It would tnVIaltze the proVISIOns of the ~ and dIvert funds from other pnontIes of the HOSpItal to requrre accommodatIon for the penod m questIon durmg whIch the Gnevor was m receIpt of SIck benefits (in the amount of 75% of wages) In the altematI~e, the Employer took the posItIon '" I- " ~.' 12 that It was entitled to a reasonable penod In whIch to obtaIn accurate ,and relIable "' v InfOrmatIOn upon, whIch to base an offer ofaccommodabon to a handIcapped employee as well asa reasonable penod In whIch to miplement suchan offer In the further alternative, the Employer took the pOSItIon that the Cillk does not guarantee that a handIcapped . employee WIll be accommodated m employment. Rather It ensures that such an employee WIll not be dtscnmmated against ill respect of jobs' the employee is capable of penormIng (although there IS no reqwrement to plage an employee m a job whIcp. the employee IS mcapabie ofpenormmg even with accommodatIOn) The Employer further contended that the duty to accommodate IS hnuted to the employee's pre-IDJury posItIon or to some other position to whIch the employee is entitled under the collective agreement and that there IS no oblIgatIOn on the Employer to create a Job or job opporturuty under the collective agreement. As the medicai eVIdence mdIcated that the Gnevor was unable to penorm the essenttal elements of her pre-mjury nursmg posItton durmg the relevant penod, the Employer maIntaIned that there was no oblIgatIon to proVIde accommodatIon pnor to May 25, 1993 In fact, as the Gnevor was unable to perform the essentIal reqUIrements of her pre-'It1JuI)' employment until some tirnem July, 1993, the Employer suggested that $e accommodation proVIded on May 25th may well have exceeded the requircments of the Cw:k In any event, the Employer clanned that It made eveI)' effort short of undue hardshIp to accommodate the Gnevor durmg the penod In questIon. - .. v .j, '- 13 For Its part, the Umon took the posItIon that the fact that the HOspItal had other pnontIes or that the Gnevor was m receIpt of benefits ~der other proVIsIons of the cQIlectIve agreement did not detract from the Employer's duty to accommodate handIcapped employees to the pOInt of undue hardship under the Human Rights Code. Furthermore, although the Uruon dId not dIspute that the 'Employer was entItled to rehab Ie mformatIon upon whIch to base an offer of accommodatton, the Uruon mamtamed that the Employer had the mformaoon reqwred to accommodate the Gnevor dunng the penod m questIon, thIs bemg mformatIon the Gnevor was fit to return to work WIth restrIctIons The fact that the Employer desrred more complete InformatIon to allow for the development of a - l comprehensIve rehabihtatton plan ought not to have precluded the Employer from proVIdmg intenm accommodaoon. The Uruon also dIsputed the contentIon that the duty to accommodate IS hnuted to the employee's pre-Injury postt:lOn and c1auned that the obhgatton may extend to the dutIes of another pOSItIon or even to dutIes whIch are not assocIated WIth any parttcular posItIon and that the Employer recogmzed the broader scope qf Its duty In ItS mtemal polIcIes and gwdelInes and by placmg the Gnevor m the library and pharmacy from June, 1992 to February, 1993 Finally, the Union clanned that the Employer faIled to show that It would have caused undue hardship to have accommodated the Gnevor for the period J In questIon, I.e., from April 19 to May 24, 1993 . I In the Board's view, pnor to accommodatmg the Ghevor,s dIsabilIty, the Employer was entltled to a reasonable penod of tune m whIch to obtaIn relIable mformatIon " ~, /' 1.4 as to the Grievor's medIcal restnctIons. Although It would appear that some attempt was -made at accommodation for the penod m questIon (the eVIdence suggests that consideratIon was gIVen to placmg the G,rtevor In her pre-Injury pOSItIon; m a ward clerk pOSItion, In the library, the pharmacy or the PTU), m the end, no work was found for the Grievor In any event, the Employer was faced WIth sIgmficant contradIctIons as to the Gnevor'scapabilitIes. As early as the fall of 1992, the W C.B declared the Gnevor fit to return to work WIth no restrIctions although a functIonal abilIties evaluatIOn camed out under the auspIces of the . W C B resulted m multiple restrictIOns. These contradIctIons were exacerbated by a confusmg array of restrIcttons set out in a senes of medIcal certIficates submItted following the Gnevor'smvolvement m a mbtor vehIcle aCCIdent In February, 1993 For Instance, the fIrst three medIcal certIficates subIDltted by the Gnevor put no restrIctIons on pushIng and pullmg whereas the last two dId. Ms. Rendell confirmed that the restrIctIon on pushmg. and pullIng was a sIgruficant unpednnent to placmg the Gnevor In a nurSIng pOSItIon. '\ Furthermore, the second and fifth certrficates mdtcated restnctIOns on overhead work, wlhch were absent from the other certIficates. Finally, Isolated restrIctIons were referred to IndtVIdual certIficates. These mcluded prolonged standtng (in the second certIficate) and repetItIve bendmg (In the fourth) Havmg regard to these dIscrepancies and to the Employer's oblIgatIon to ensure that work whIch was aSSIgned was WIthm the Gnev'or's medIcal restncttons,-theEmployer, qUIte properly m the Board's VIew, made the deciSIOn to proceed WIth an mdependent medIcal exarnmatIon to determIne the extent of these restrIctIons That deCISIOn was presented to the Gnevor at a meetIng on April 27, 1993 at . "t t. 15 whIch bme the Gnevor' s consent was requested. As she was entItled to do, the Gnevor took the request under adVIsement and the next day, folloWIng consultatton WIth knowledgable Uruon OffiCIalS, gave her consent to the mdependent l11edIcalexammatIon. That exammatIon was conducted on May 4th and 5th and the results of the examInatIon, whIch effectIvely reduced the restrIctIons on the Grievor (these bemg restnctIons on pushIng and pullmg, whIch were e11ffi1flated, and restnctIons on IIftmg, mcludmg overhead IIftmg, which were reduced); were proVIded to the Employer WIthIn a two-week penod. In the Board's VIew, / the Employer aqted WIth reasonable dIspatch msecunng the Gnevor's consent and In makmg ) arrangements for the mdependent medtcal exammatIon. The results of that exanunation were avatlable on May 18th and the Gnevor was reInstated to actIve emplOYment the followmg day In these crrcumstances, the Board IS unable to conclude that the Employer was req1i1red I to accommodate the Gnevor's dtsabIhty at an earlIer date or that there was any enntlement to compensatIon In respect of the penod from April 19 to May 24, 1993 In the result, the gnevance must be dISmIssed. , " - DATED AT TORONIO, thIS 26 day of February, 1996. ~__d~ K. Saltman, Vice-Chairper'son .