Sunday, 24 January 2016

Workplace Accommodation is a Two-Way Street... on which Employees can get Run Over

Employees who become injured either at work or as a result of their workplace are especially vulnerable to losing their employment. This fact is recognized in Ontario law by the express inclusion of “injuries or disabilities for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997" in the definition of “disability” set out in the Ontario Human Rights Code. (Section 5 of that law provides that, “Every person has a right to equal treatment with respect to employment without discrimination because of… disability.”)

Notwithstanding this ostensible legal protection, injured workers continue to suffer workplace discrimination, often losing their employment as a result.

The case of Nason v Thunder Bay Orthopaedic Inc., 2015 ONSC 8097 (CanLII) provides a paradigmatic example of what can go wrong after an employee gets injured.

In this post, I will look at a single issue considered by the court in this case: Must a disabled employee who wants to return to work communicate the physical ability, not just the desire, to return to work?

Facts

The facts of the plaintiff’s case are rather common of someone with a WSIB claim. As set out in the court’s reasons for decision the general facts of the case were as follows:

  • The plaintiff, Mr. Nason was 43 years old at the time of injury and has a grade 12 education.
  • He began employment with Thunder Bay Orthopaedic Inc. (“TBO”) on May 10, 1993.
  • Mr. Nason’s duties included assisting in the casting and fitting of custom and off-the-shelf braces, preparing and modifying plaster casts of patients’ limbs, manufacturing new braces and cutting and grinding plastic. These duties required Mr. Nason to use (and therefore grip) various hand and power tools, some of which caused significant vibration.
  • In 2006, Mr. Nason began experiencing pain and numbness in his hands, wrists, elbows and neck. Mr. Nason’s family doctor initially referred him to physiotherapy. Mr. Nason’s physiotherapist, noted multiple impairments at that time, consistent with “possibly early signs of vibration induced Raynaud’s Syndrome.”
  • In 2009, Mr. Nason’s family doctor prescribed bilateral wrist splints for him, noting they were for carpel tunnel syndrome.
  • On June 14, 2010, Mr. Nason saw his family doctor. At this time, he was diagnosed with carpal and cubital tunnel syndrome in his left arm with cervical and peripheral nerve pressure.
  • Mr. Nason’s family doctor completed a Health Professional’s Report in order to initiate a potential Workplace Safety and Insurance Board (“WSIB”) claim. In this report, Dr. Wilberforce noted that Mr. Nason was suffering from repetitive strain injury to his left forearm, hand and fingers.
  • On June 21, 2010, Mr. Nason completed a WSIB Worker’s Report.
  • On July 5, 2010, Mr. Nason received a letter from WSIB. The WSIB confirmed that Dr. Wilberforce’s diagnosis of left hand double crush syndrome was compatible with repetitive use injury. Mr. Nason was told that his claim had been allowed for his left hand and arm only. Mr. Nason continued to work at TBO and did not draw WSIB benefits at this time. He testified that he did not request any accommodation and that his condition did not affect his pace of work. He also testified that TBO did not say anything to him about his ability to perform his job during the summer of 2010.
  • On August 17, 2010, TBO wrote to WSIB stating that TBO “can no longer accommodate” Mr. Nason. When Mr. Nason returned to work on August 18, 2010, he found his personal belongings boxed up and at his workstation. Mr. Nason and his wife (also a TBO employee) were called into the office by the owners. According to Mr. Nason, TBO advised him that WSIB had accepted his claim and that he was now WSIB’s responsibility, or words to that effect. Mr. Nason was told by TBO that he was being placed on leave. Mr. Nason testified that he did not need any accommodation at that point nor did TBO ask about any potential accommodation.
  • Mr. Nason thereafter contacted WSIB to initiate loss of earning benefits.
  • Mr. Nason underwent surgery to address his condition on five occasions between April 2011 and August 2012.
  • On April 26, 2012, Mr. Nason wrote to TBO. In this letter, Mr. Nason requested a meeting with TBO to “discuss (TBO’s) intentions with my employment at TBO.” Mr. Nason testified that he wrote the letter because he wanted his job at TBO back. According to Mr. Nason, he never received a response to this letter.
  • Mr. Nason followed up his April 26, 2012 letter with a similar letter to TBO on June 11, 2012. Mr. Nason testified that he did not receive a response to this letter.
  • For its part, the employer agreed that Mr. Nason had written to TBO, but testified that TBO responded by telephone in unsuccessful attempts to schedule a meeting. The court accepted the employer’s evidence that it did so.
  • On January 9, 2013, Mr. Nason wrote to TBO. In this letter, Mr. Nason stated that it was apparent to him that TBO was not interested in acknowledging their obligation to accommodate him. He further stated that “since you have indicated to WSIB that it is your intent to sever my employment, we do need to discuss my severance package.”
  • Mr. Nason testified that he received a reply from TBO dated January 22, 2013. This letter, entitled “Termination of Employment” advised Mr. Nason that he had been terminated effective April 19, 2013.
  • Mr. Nason testified that as of January 2013 he had limitations regarding gripping and squeezing. He maintained that these limitations could have been accommodated by scheduling his work duties appropriately.
  • On February 26, 2013, Mr. Nason and TBO met, together with their respective lawyers. At this meeting, TBO confirmed that it was rescinding the January 22, 2013 termination of Mr. Nason. Mr. Nason was advised that his position remained open to him, pending “further medical assessments and the outcome of these assessments.”
  • Mr. Nason testified that he “could never work for (TBO) again…just for what they’ve done to me, my termination and the way I was treated throughout the whole process.”

Given the facts of the case the plaintiff claimed the sum of $391,720.21 from the defendant comprised of the following amounts:

  1. $112,387.20 representing lost wages for the period August 18, 2010 to January 22, 2013, a period when the plaintiff alleges the defendant failed to accommodate his disability and $35,000.00 damages for a breach of the defendant’s human rights including injury to the plaintiff’s dignity and sense of self-worth for the period June 14, 2010 to January 22, 2013, all pursuant to the Ontario Human Rights Code, R.S.O. c. H.19 (the “Code”);
  2. $84,333.01 or 20 months’ salary representing pay in lieu of notice for wrongful dismissal;
  3. $35,000.00 damages as compensation for a breach of the defendant’s human rights related to the termination of his employment on January 22, 2013; and
  4. $75,000.00 for aggravated damages and $50,000.00 for punitive damages related to the wrongful dismissal.

Things did not go exactly as the plaintiff had hoped.

Decision

In rejecting the plaintiff’s claim that the defendant employer had breached his human rights, the Honourable Mr. Justice J.S. Fregeau held the following with respect to the plaintiff’s obligation to prove a prime facie case of discrimination:

[148] The plaintiff has established a prima facie case of discrimination because of his disability with respect to his employment at TBO for the period August 18, 2010 to January 22, 2013. On August 18, 2010, he was placed on leave because of his disability. His salary was terminated and he began to draw WSIB benefits. His status remained unchanged until he received the termination letter on January 22, 2013. As the plaintiff has established a prima facie case of discrimination for this period of time, the first issue to address is whether or not the defendant fulfilled the procedural and substantive components of their duty to accommodate Mr. Nason’s disability-related needs to the point of undue hardship when he was placed on leave on August 18, 2010.

[149] I reject the defendant’s submission that the plaintiff has failed to properly plead a continuing failure to accommodate between August 18, 2010 and January 22, 2013… I also reject the defendant’s submission that the plaintiff’s claims are outside the one year limitation period set out in the Code. The theory of the plaintiff’s case is that TBO infringed his human rights as a result of a series of related actions between June 14, 2010 and January 22, 2013. The limitation period set out in section 34(1) of the Code begins to run one year from the last in a series of incidents. The Statement of Claim was issued on August 3, 2013, within the limitation period.

On the issue of whether the defendant employer had failed to meet the standard required of it with respect to the procedural element of the duty to accommodate, Justice Fregeau wrote the following:

[165] The plaintiff’s position is that TBO continued to discriminate against Mr. Nason on an ongoing basis between the date that he was put on leave and the January 2013 dismissal. The essence of this claim is that TBO failed to inquire as to Mr. Nason’s various treatments and progress over this period of time and therefore failed in the procedural aspect of their duty to accommodate him. The plaintiff seeks damages equivalent to his lost wages over this period of time.

[144] The Ontario Human Rights tribunal commented on the respective obligations and boundaries of employees and employers in the accommodation process. In accommodating the needs of an employee, the employee must cooperate in the facilitation of such accommodation by providing the required information to the employer on which the latter can attempt to create a solution and participate meaningfully in the accommodation dialogue. Assuming the employee actually wants to return to work and that the employer wants to assist the employee back to work, the employee must communicate the ability, not just the desire, to return to work. The needs are what is required to be accommodated – what issues relating to the employee’s disabilities need to be dealt with to allow that person to successfully perform the essential duties of the job. Jeffrey v. Dofasco Inc. [2004] O.H.R.T.D. No. 5 at paragraphs 183 and 184.

[172] … At no point in time, up to and including January 2013, did Mr. Nason provide any information to TBO, medical or otherwise, that he was physically able to return to work, what restrictions he may have had and what accommodation he felt would be necessary. To this point in time, TBO did not actively solicit this information from Mr. Nason or third parties. Mr. Nason had by now come to the conclusion that TBO did not want him back. He repeatedly inquired about a severance payment from TBO. TBO came to the conclusion that Mr. Nason did not want to return to work at TBO. TBO’s January 22, 2013 termination letter resulted from this breakdown in communication.

[173] I am not persuaded that TBO discriminated against Mr. Nason or infringed his human rights between August 18, 2010 and January 22, 2013. The defendant [sic] submits that TBO failed in the procedural aspect of their duty to accommodate. However, the accommodation process is not a one way street. A disabled employee who wants to return to work must cooperate in the facilitation of accommodation by providing the information necessary to allow the employer to attempt to create solutions. A disabled employee must communicate the physical ability, not just the desire, to return to work.

[174] Mr. Nason did not do so. I accept that he wanted to return to work. This was communicated to TBO. What he failed to provide to his employer was any form of confirmation that he was physically able to do so. I find this particularly puzzling in light of the seriousness of Mr. Nason’s condition, the number of surgeries he underwent and the pessimistic tone of post-operative physiotherapy reports, the latter noting permanent restrictions and impairments. I have expressly commented only on [the physiotherapist]’s progress reports. There are numerous other reports in the record, from Mr. Nason’s family doctor and from WSIB, that paint a similarly pessimistic picture of Mr. Nason’s condition and prognosis. In all of the circumstances, I find that it was reasonable for TBO to require independent confirmation of Mr. Nason’s physical condition and restrictions before allowing him to return to work.

[175] While giving evidence at trial, Mr. Nason described himself as a disabled employee able to return to work if accommodated. In light of Mr. Nason’s serious disability in 2010 and his series of surgeries between April 2011 and August 2012 without any appreciable progress, it was incumbent on him, as a disabled employee who truly wanted to return to work, to provide authoritative confirmation that he was physically able to do so. How can an employer assess their ability to accommodate a disabled employee in their particular workplace without knowing the level of disability and what accommodations are necessary?

[176] TBO could not meaningfully comply with their obligation to accommodate Mr. Nason without a reasonable level of cooperation and communication from him. In my opinion, TBO did not discriminate against Mr. Nason between August 18, 2010 and January 22, 2013. This aspect of the plaintiff’s claim is dismissed.

Although Mr. Nason was able to establish that he was wrongfully dismissed, given the court’s finding that the employer was entitled to set-off Mr. Nason’s receipt of WSIB loss of earnings (LOE) benefits, his actual recovery was quite limited.

Commentary

Mr. Nason’s case is all too common when it comes to workplace injury files. Someone gets injured, the employer gets frustrated, the WSIB gets involved and then no one knows what to do next. Human rights law confronts employment law confront the WSIB and no one is quite sure what to do.

In my opinion, plaintiff’s counsel (against whom I once had a file and for whom I have nothing but the utmost of respect) presented some very compelling arguments. In my opinion, failing to make inquiries as to its employee’s medical status (even if it was receiving progress reports from third parties) was a failing of the procedural duty to accommodate. Justice Fregeau flirts with this position when he comments on the wrongful dismissal not being a frustration of contract:

[181] TBO has failed to establish that there was no reasonable likelihood of Mr. Nason being able to return to work within a reasonable time of January 22, 2013. The evidence does establish that [Mr. Nason’s physiotherapist] was of the opinion that Mr. Nason had permanent restrictions. The evidence also establishes that WSIB felt that Mr. Nason’s recovery had plateaued and that he had reached his maximum medical recovery. WSIB also concluded that Mr. Nason was partially permanently impaired as of the end of 2012. However, whether Mr. Nason could have returned to work, or attempted to return to work, with accommodations, had not been sufficiently explored as of January 2013 such that one could conclude that there was no reasonable likelihood of it happening in the future.

Respectfully, Mr. Justice Fregeau’s comments in paragraph 181, that Mr. Nason’s ability to return to work had not been fully explored, cannot stand in harmony with his finding that the employer had met its procedural duty to accommodate. It did not know whether Mr. Nason was able to work because it did not ask before it fired him. That finding is crucial to the court’s finding of wrongful dismissal. Why that same finding is not also employed to make a finding of the failure on the procedural duty to accommodate I do not know.

Well, that is not entirely true. From reading Mr. Justice Fregeau’s reasons for decision (esp. at paras. 172-176) we know why the employer’s failure to ask was not employed so as to make a finding of discrimination: The court found that the worker had the duty to tell, not the other way around.

Upon reflection of this case I am left frustrated. Although the court’s decision is clear, respectfully I believe the position is novel. By stating that employees must not only inform of their desire to work, but also their physical ability to work, the court has stood a considerable body of human rights law on its head. On this point consider, for example, the case of Thompson v. 1552754 Ontario Inc., 2013 HRTO 716 summarized by this blog in the post Request For Doctor's Note After Illness Discriminatory: HRTO.

Moreover, if the purpose of the Human Rights Code is to encourage full participation in employment by persons with disabilities, requiring those same employees to prove that they are “physically able” to work, before considering ways by which they may be accommodated, seems antithetical.

Simply stated, and with the utmost of respect, the court’s decision cannot be correct. An employer does not get to assume that because an employee was disabled before he must still be disabled now; the same is a stereotype. Mr. Nason had requested to return to work. The employer then had a duty to consider the ways by which to make that happen. They did not do so; they acted on stereotypes. When they did so they violated the law. The decision is wrong.

Takeaways for Employees with Labour Pains

If the former rule of the US Armed Forces was "don't ask, don't tell" perhaps the takeaway from this post should be, "It doesn't matter if they don't ask; do tell!"

Being injured and dealing with the WSIB are bad enough. Dealing with one’s former employer should be the easy part, especially once a worker is ready and willing to resume employment. Unfortunately the law is complicated and confusing.

Decisions such as Nason serve as a reminder that things are not always as clear as the law may lead one to believe. Decisions are made by people and different people, including judges, have different opinions. In this case, the judge believed that the employee should have done more to assist himself get back to work. Subject to any appeal, that is the decision with which he is saddled.

Navigating the WSIB and return-to-work regime is complicated. It is more complicated than it should be and can provide economic disincentives to those who try. If you are an employee in Ontario and are looking to get back to work, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

The WSIB regime is no picnic for employers either. Human rights law is even more frustrating for most employers.

In my opinion the employer got lucky in this case. Not every judge is going to see things the same way as did Justice Fregeau and the plaintiff’s arguments were not without serious merit. Had the case gone the other way, it could have cost the employer over $300,000.

If you are an employer in Ontario and are looking for advice with respect to your workplace issues, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.



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