The company claimed it had no jobs that the employee could do with his medical restrictions. However, it had relied on a third party consultant for that assessment and not actually done its own homework.
Informed by his employer that his work restrictions could no longer be accommodated, a worker grieved.
A production operator at an auto parts manufacturer since 1993, D.N. sustained injuries on July 26, 2007 when he was hit in the company parking lot by a vehicle driven by another employee.
D.N. received workers’ compensation and eventually returned to work. However, on October 31, 2007, D.N. reported experiencing numbness in his legs while at work. He was sent to the hospital and directed to have a compensation board Functional Abilities Form (FAF) filled out.
He did so and returned to work with restrictions.
Following a December 14 meeting, D.N. was notified by the plant claims and health and safety advisor that D.N.’s supervisor was having difficulties accommodating him. He was directed to get a new FAF.
D.N. complied and had new FAF completed by his family doctor.
The new FAF said that D.N. could work around specific restrictions on floor-to-waist lifting, waist-to-shoulder lifting and repetitive bending and twisting. The FAF also noted that pre-existing restrictions from a 1988 compensable injury should also be observed. The FAF also contained the phrase “work as tolerated.”
As the 1988 injury predated the employer’s ownership of the plant, it had no knowledge or records of the referenced restrictions.
“Work as tolerated”
D.N. disagreed with the restrictions and was unaware of how his doctor knew about them. In any case, he was of the view that the phrase “work as tolerated” outweighed the 1988 restrictions.
The employer saw it differently and sent D.N. home with insurance and compensation claims forms. He was told that he could not return to work until he could identify a job that he could do.
D.N. had his doctor provide another FAF. Dated January 7, the new form omitted any reference to the 1988 restrictions and instead repeated the restrictions that were on the previous form and added the phrase “walking, standing, sitting as tolerated, alternating each.”
The employer wrote to acknowledge receipt of the form and informed D.N. that after reviewing the form with a certified Kinesiologist, it was determined that the employer currently had no work for D.N. within his restrictions.
The letter also informed D.N. that he had been scheduled for a Functional Abilities Evaluation (FAE). His lost time was being reported to the compensation board, the employer said.
Following the FAE, five work restrictions were identified for D.N. He was to work within those restrictions for four to six weeks after which it was thought that he would be able to return to regular duties. However, once again, D.N. was told that the employer had no work available within his restrictions.
Queried again by the employer about the 1988 restrictions, D.N. said he did not have them.
Early in February, D.N. filed a claim for compensation. D.N. claimed that he had been terminated by his employer because it could not accommodate him. He made a similar claim to the Employment Insurance Commission.
Nevertheless, a few weeks later D.N. wrote to the employer to ask what it would take to facilitate his return to work.
Informed by the employer that he needed a note from his doctor and a return date, D.N.’s doctor provided yet another FAF. This note was also deemed insufficient by the employer.
Work not hard enough
A work hardening plan was then developed by the company’s Kinesiologist and presented to D.N. on March 29. D.N. found the document too restrictive. He edited the document, loosening the restrictions and returned it to the employer. The employer viewed this response as a refusal to work.
With matters stalled, a note signed by D.N.’s doctor to certify that he was “capable of pre-injury duties” was presented to the employer in June.
The employer then forwarded the matter to its doctor who reviewed the documents and pronounced D.N. fit to return to work on August 11.
The union grievance charged that the company had prevented D.N. from returning to work by failing to accommodate his restrictions. The union said that D.N. should be compensated for his losses.
The Arbitrator agreed.
While D.N. failed to cooperate properly and assist his employer in the process of determining his restrictions, the employer had not established any basis for refusing to continue to accommodate D.N. after his initial return to work.
Insufficient evidence
No evidence was offered to support the employer’s claim that it was having difficulty accommodating D.N., the Arbitrator said. “This is not sufficient to justify a decision to stop accommodating an employee and thus preventing him from continuing to work …”
The simple say-so of a Kinesiologist — in this case asserting that there were no suitable jobs — was not good enough, the Arbitrator said. Evidence that the proper investigations had been undertaken to determine how D.N. could be accommodated was required.
Otherwise, the Arbitrator said, “[T]here is no probative evidence upon which I can determine that [the employer] had a reasonable justification to remove [D.N.] from the plant after the December, 2007 shutdown or that [the employer] fulfilled its duties to accommodate the grievor’s restrictions.”
The grievance was accepted, in part.
D.N. was entitled to be compensated for lost wages and benefits from January 14 — when he filed his grievance — to March 29, the Arbitrator said.
On March 29, D.N. was presented with the proposed work hardening plan. At that point, he was obligated to return to work and then grieve if he had objections, the Arbitrator said.
Reference: Mahle Filter Systems Canada and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW — Canada), Local 1941. Ted Crljenika — Sole Arbitrator. Chris Fiore for the Employer and Richard Laverty for the Union. January 22, 2011. 11 pp.
