Employer surprised by worker`s request for modified duties upon his return
This edition of You Make the Call features a railway worker who was accused of not providing relevant information on his medical status while recovering from a workplace injury.
Glen Robinson was a yard trainperson for Canadian Pacific Railway (CPR) in Ontario. Robinson hurt himself while on duty on Dec. 19, 2012, and ended up with a lumbar injury to his back. As a result of his injury, Robinson faced significant restrictions on what he could physically do on the job, so CPR accommodated him with modified duties.
Robinson provided a functional abilities form in accordance with Ontario Workplace Safety and Insurance Board (WSIB) requirements on Jan. 7, 2013, a Form 26 report from his family doctor on Jan. 10, a hospital assessment report on Jan. 29 and three more functional abilities forms in February and March.
Another hospital assessment report in March stated “It is hoped that (Robinson) will be able to resume normal activity” by June 6. On March 27, the WSIB granted Robinson continuing benefits for his injury until June 4, the same week the assessment report suggested he could return. Robinson provided another functional abilities form dated May 8 that recommended a gradual return to full duties.
CPR believed the WSIB’s award of benefits until June 4 coupled with the March hospital assessment meant that Robinson would be able to return to full duties in the first week of June. It requested further medical information, and Robinson’s doctor recommended on May 27 that Robinson should start at two hours per day for one week, then increase by two hours per day each week until he reached a full eight hours per day.
The doctor’s response was confusing to CPR since it expected Robinson to be ready for normal activities on June 6, as stated in the March hospital assessment. CPR sent Robinson a letter on May 29 stating that he was in noncompliance with the return-to-work process. The railway said it was relying on the March assessment and the WSIB benefits award that indicated a June 4 return to work, and none of the information Robinson had provided changed that date. Robinson had also not provided medical updates leading up to his return, so CPR was caught off-guard when his doctor indicated the gradual return-to-work plan.
Robinson replied on June 5, disputing that he hadn’t provided enough information. He followed up with a current functional abilities form from his doctor that recommended a graduated work schedule of four hours a day for two weeks, six hours a day for two more weeks, and then eight hours a day after that — different from the May 27 recommendations
CPR maintained it would stick with the June 4 return date without medical information that stated otherwise, arguing it was difficult to arrange accommodation when it wasn’t told that Robinson needed it until a few days before the return-to-work date. Robinson provided another functional abilities form with the same graduated schedule as the previous one. However, he remained off work until Aug. 6.
The Teamsters Canada Rail Conference, representing Robinson, filed a complaint alleging CPR failed to accommodate Robinson by not implementing the graduated return to work schedule and keeping him from working until August.
You make the call
Was it reasonable for CPR to expect Robinson back at full duties in early June?
OR
Did the medical information allow for a graduated return to work starting on June 6?
IF YOU SAID CPR should have allowed Robinson to return to work on a graduated basis, you’re right. The arbitrator noted that the accommodation process is “a two-way street” and CPR’s argument was centred on Robinson’s duty to provide sufficient information to allow the railway to accommodate him.
The arbitrator found that while the hospital assessment in March raised June 6 as a possible return date for Robinson, this was only a suggestion and not a certainty. Though later functional abilities forms also suggested full duties, the later medical information Robinson provided indicated that wasn’t the case. In addition, CPR didn’t provide any evidence that it couldn’t accommodate Robinson with the notice provided, said the arbitrator.
“Based on the medical information provided to CPR, it is unclear why they concluded that they could no longer continue to accommodate Mr. Robinson during the graduated period suggested by his physician,” the arbitrator said in determining CPR violated its duty to accommodate Robinson. CPR was ordered to compensate Robinson for lost income from June 6 until he actually returned to work on Aug. 6.
For more information see:
• Canadian Pacific Railway and Teamsters Canada Rail Conference (Robinson), Re, 2017 CarswellNat 7905 (Can. Railway Office of Arb. & Dispute Res.).
