Employer was eager to get worker back working
This instalment of You Make the Call involves an injured employee who felt her employer took too long in returning him to modified work.
Valerie Wilton was a caretaker with the Toronto District School Board since 2008, reporting to the caretaking team leader. On Feb. 26, 2014, Wilton had to take off work due to osteoarthritis in both of her hands. Her job duties aggravated the condition to the point where it was too painful to work. She was unable to work for five months.
Wilton had her doctor complete a functional abilities form (FAF) that indicated she could return to work with certain limitations on Aug. 25, 2014, and forwarded it to the school board on July 31. The following week, she submitted a caretaker’s modified work assessment related to her workplace, also completed by her doctor that stated she could return to work three days a week on Aug. 25 and should be able to work regular hours as of Sept. 8.
The school board reviewed the FAF and the assessment forms, but had concerns over whether Wilton could work safely without reinjuring herself. The employee health and welfare department requested additional information regarding Wilton’s restrictions on lifting and weights, sending her another FAF to be completed by Aug. 20.
Wilton returned the new FAF to the school board on Aug. 19, but it was still concerned over a perceived vagueness of her limitations, with the FAF stating she could do “light cleaning” and “light mopping.” The employer contacted Wilton’s doctor to seek clarification of these terms and the frequency with which she could perform certain tasks. It cancelled a return-to-work meeting scheduled for Aug. 29 with Wilton until it received further information.
Wilton’s doctor felt the school board’s questions would be better evaluation two to four weeks after Wilton returned to modified duties.
At a return-to-work meeting on Sept. 3, the school board proposed that Wilton temporarily transfer to a large high school where more light duties were available to fill an eight-hour shift. Wilton agreed and began working at the high school the following week.
The union filed a grievance on Wilton’s behalf, claiming the school board unnecessarily delayed Wilton’s return to work as it had enough information from the initial FAF and caretaker assessment form to plan her return to work. The grievance also pointed out Wilton responded promptly to the school board’s requests for additional information – it had all the information it requested by Aug. 20 -- and the deadlines it set didn’t allow her to return in a timely manner. Wilton’s short-term disability benefits were exhausted on Sept. 2, the day before her return-to-work meeting, so she had to use sick days and lieu days for a week until she returned to work.
You Make the Call
Did the school board unreasonably delay Wilton’s return to work?
OR
Did the school board proceed appropriately in ensuring it had enough information?
If you said the school board proceeded appropriately and there was no unreasonable delay, you’re right. The arbitrator noted that Wilton had been absent from work for a few months, which was a “considerable period of time.” The school board was obligated to ensure Wilton could return to work safely and it needed clear medical information to properly assess what modified duties it could assign her. Since the school board wasn’t sure about some of the restrictions indicated on the FAF, it was reasonable to request additional information to clarify things, said the arbitrator.
The addition information the doctor provided consisted of the recommendation Wilton should be assessed a few weeks after she returned to work, which was sufficient clarification regarding the approach to Wilton’s return, said the arbitrator. The arbitrator also found that the school board was carefully assessing the situation – and it was also a busy time with preparation for the new school year – so the two-week deadline for more information and the two-week period from Aug. 29 to Sept. 11 “fell comfortably within the realm of reasonableness,” said the arbitrator.
However, since Wilton’s short-term disability expired on Sept. 2 and she had to use sick days and lieu days to get to her return-to-work date, the arbitrator found she suffered “adverse economic consequences of not being allowed to return to work.” The school board set a deadline for additional information for Aug. 20, which seemed to take into consideration the FAF had indicated Wilton could return on Aug. 25. However, once it received the additional information from Wilton, a return-to-work meeting wasn’t scheduled until Sept. 3 and she returned a week after that.
The arbitrator found there was no reason the school board couldn’t have reviewed the medical information more quickly upon receiving it on Aug. 19, and the delay to the originally scheduled meeting on Aug. 29 was unnecessary.
The arbitrator ordered the school board to compensate Wilton for the lieu and vacation days she had to use between the expiry of her short-term disability benefits and her return to work.
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