Hospital accused doctor of acting as advocate for worker
A nurse afflicted with fibromyalgia was denied permanent day shifts because the hospital argued it wouldn’t be fair to other workers.
Evadnez Tang worked at University Health Network in Toronto as a post-operative nurse. She had been employed full-time since 2008 and worked on a four-week day shift, two-week night shift rotation.
As a sufferer of fibromyalgia, Tang had various sleep issues, which meant she was often sluggish on the night shifts due to unstable sleeping patterns. She asked management to switch her to a permanent day shift, so she could establish a more regimented sleep schedule.
But the hospital denied the request.
During the 30 months of hearing on the arbitration case, Tang alleviated the effects of night shift work by working mostly day shifts, using vacation time to avoid night shifts, and by switching shifts with other nurses.
The hospital argued that there was no evidence provided by various doctors that indicated Tang needed this specific accommodation to address her disability.
The hospital took issue with one physician, who it alleged was not fulfilling his proper obligations as a doctor.
“The hospital further said that Dr. (Celeste ) Thirwell had crossed the line between the legitimate role of a treating physician and had become an advocate for the grievor,” said arbitrator John McNamee.
“The responses from Dr. Thirwell were less than clear, and were often phrased in generalities as to the possible impacts of fibromyalgia instead of relating to the grievor’s condition.”
Thirwell was the director of the Centre for Sleep and Chronobiology Sleep Disorder Clinics and had treated Tang since 2012.
The hospital further argued that Tang’s true motivation was to better concentrate on finishing a part-time masters’ degree in nursing at the University of Toronto. It alleged she wanted nights free to attend classes.
Tang did suffer from “constant pain” and “fibromyalgia-related sleep disorders had an adverse effect upon her ability to perform the essential duties of her job,” said McNamee.
She had taken sick leave in 2011 and 2012, activating the hospital’s attendance management program.
Taking into account testimony from Thirwell and Mary Lee — who had also been treating Tang — the arbitrator agreed more fully with the latter.
“Accordingly, I prefer the opinion of Dr. Lee to the effect that it made no real difference as to whether the grievor had a consistent night shift work schedule or a consistent day shift work schedule. I had no reason to suspect that her opinion was influenced by anything other than straightforward medical concerns,” said McNamee.
The grievance was dismissed partly due to Tang’s own words. “She clearly testified that she was able to function normally when she took sleeping pills and that her sleep disorder was not a factor,” said McNamee.
“I am satisfied that the grievor can be accommodated, if she desires accommodation, with a steady night shift work schedule, and that the hospital was justified in its refusal to provide her with a permanent day shift schedule.”
Tang's grievance was dismissed by the arbitrator.
Reference: The University Health Network and Ontario Nurses’ Association. John McNamee — arbitrator. Andrew Zinman for the employer. Marcia Barry for the employee. Sept. 9, 2016.
