Fired for her apparent unwillingness to participate in a prescribed accommodation/rehabilitation plan, a worker was reinstated after a post termination medical exam indicated that depression and anxiety were complicating factors in her return to work.
Employed by an electrical utility, M.M. was hired in 2001 as a civil maintainer. Following an injury suffered in March, 2007, M.M. was absent from work — except for a couple of partial days — until she was fired on August 28, 2008.
An Independent Medical Examination (IME) undertaken on May 28, 2008 declared her fit to return to work on a graduated basis, contingent on her participation in a rehabilitation program consisting of physiotherapy, referrals to a psychologist and a pain management clinic. Having missed a number of return-to-work meetings to discuss her situation, M.M. attended a meeting July 29 to discuss her return. At that meeting she raised her concerns about getting to work because of her inability to drive since her injury. The employer responded that the IME mentioned no restrictions on her driving and that, in any case, transportation was her responsibility. Her return to work was then scheduled for July 31, 2008.
Numerous ailments, no-shows
M.M. was a no-show on July 31. On that day she left a voicemail saying she was feeling sick and that she would return on August 5. M.M. didn’t show on August 5 either or the next day as promised. Citing numerous ailments, pain and/or lack of sleep M.M. developed a pattern of late night/early morning calls begging off work. After five days she was sent a Medical Absence Report to be completed by her physician in order to support her absences. The form was not completed.
Fired for cause on August 28, the employer’s termination letter cited M.M.’s failure to follow the return-to-work plan following an IME that declared her fit to work and for her failure to provide a Medical Absence Report.
The union grieved the termination and in the interim arranged for another IME to assess more deeply the mental health issues referenced in her initial IME.
Ultimately, as a result of the second IME and a subsequent reassessment from the doctor who conducted the initial IME, consensus developed that M.M. was suffering from a pain disorder complicated by mixed anxiety and depression.
Treatment required before return to work
Based on the new information, the union argued that the employer had acted precipitously in firing M.M. Her medical condition required that she be treated with appropriate pharmacological and therapeutic treatments prior to and not concurrent with her return to work.
Noting the difficulty of the case, ultimately, the Arbitrator agreed. The Arbitrator was sympathetic to the employer who had “properly responded when faced with an employee who had been found fit to return to work, who nevertheless failed to attend at work, and who, additionally, failed to obtain the recommended treatment.”
The Arbitrator noted that although the initial IME had concluded that from a physical standpoint, M.M. was not totally disabled and could return to work, it also raised a concern about her mental health, including references to depression and pain behaviours and her need for psychiatric and/or psychological support.
The second IME confirmed this, “indicat[ing] there is a psychological/psychiatric overlay to the grievor’s conduct and behaviour and, on balance, raises sufficient concern about the culpability or willfulness of the grievor’s failure to return to work or commence the rehabilitation program that I am unable to conclude this is a ‘just cause’ case.“
The Arbitrator ordered M.M.’s reinstatement conditional on her following the rehabilitation plan outlined in the medical reports.
Reference: Ontario Power Generation Inc and Power Workers’ Union, Canadian Union of Public Employees, Local 1000. Louisa M. Davie — Sole Arbitrator. Ian Roland for the Union and Angela Rae for the Employer. November 25, 2009. 29 pp.
