Canadian Employment Law Today

Suspension of sick benefits not discrimination against worker's mental disability Employer's request for independent examination based on lack of medical information about worker's prognosis, not the disability itself BY JEFFREY R. SMITH T he suspension of a British Co- lumbia worker's sick benefits and the delay of long-term disability benefits was a result of miscom- munication and clumsy handling of the circumstances by both the worker and the employer and wasn't based on the work- er's mental health issues, the B.C. Human Rights Tribunal has ruled. Kenneth Morris joined the British Co- lumbia Public Service Agency (PSA) in June 2004 as a disability case management specialist. He eventually moved to the po- sition of early intervention and return-to- work specialist, which, according to the job description, required "analytical and conceptual thinking, problem solving/judg - ment, results orientation, team work and co-operation, and service orientation." His duties included offering solutions to dif- ferent provincial government agencies on disability management and working with different teams. Morris was considered a good worker who could be trusted and got along well with colleagues. As he gained experience with PSA, the received cases that were more difficult than some of his colleagues. However, things changed in November 2014, when the director of his team claimed he saw Morris and another PSA employee discussing non-employment related mat - ters for two hours while at work. e direc- tor called a meeting with the two employees and accused them of time theft. Morris said he was shocked at the allega- tion and he went into a dissociative state at the meeting. As the PSA instigated an inves- tigation, Morris began suffering from medi- cal problems and sought medical assistance from his wife's doctor. e doctor filled out a health update form that diagnosed anxiety and sent one part to PSA and another con - fidential portion to the third-party adminis- trator of PSA's short-term injury and illness plan (STIIP). e STIIP was a "no-fault" plan and only required employees to demonstrate they were unable to work due to illness to be eli - gible for benefits. Employees had to provide medical evidence of their inability to work if they were absent for more than six con- secutive days of work, a pattern of absences developed, or 30 days had elapsed since the previous medical statement while the employee was still receiving benefits. PSA would also reimburse one-half the cost of any required medical assessments outside of the health update form. e STIIP and long-term disability (LTD) plan also gave PSA the right to appoint its own doctor to examine employees claiming benefits. Still suffering from his mental health is - sues in December 2014, Morris submitted a second health update form that stated it was unknown when he would be able to perform his full duties without modifica - tions and had limitations — Morris had difficulties concentrating, anxiety, fatigue, difficulty remembering things, and was sleeping poorly. Morris submitted a third health update form on Jan. 29, 2015, which stated his an - ticipated length of absence would be less than one month and the recommended employment modifications were that he shouldn't return to his previous worksite and he should work from home until the investigation into time theft was complete. Return-to-work trial unsuccessful Morris began a return-to-work trial on Feb. 23, 2015, after he was cleared for modified duties. However, his symptoms were aggravated by a denial of his work- ers' compensation claim and the results of PSA's internal investigation into his STIIP eligibility. On the second day of the trial, he told his supervisor he didn't think it was going to be successful. On Feb. 26, the supervisor observed that Morris seemed to be enjoying his work and was becoming more responsive, though he was fatigued at the end of the day. By the end of the second week of the trial, Morris said he was suffering side effects from his medication, his wife was having medical problems, and he needed to "step back." He called in sick on March 9 and 10 due to a chest and sinus infection and said his doctor felt he had returned too soon. e supervisor was surprised as she felt the trial had been going well, but PSA didn't follow up with Morris' doctor. On March 24, Morris told her the time-theft investiga - tion was full of inaccuracies and he didn't feel valued as an employee. PSA felt the return-to-work trial had gone well and asked Morris to attend an independent medical examination (IME). Morris said he and his doctor were unsure about an IME and the doctor had referred him to a psychiatrist. On April 29, PSA informed Morris that it didn't have enough medical information to know if he was still eligible for the STIIP be - cause his return-to-work trial had gone well in its view and he had been denied workers' compensation benefits. It asked him again to undergo an IME by a doctor it appointed on May 19 and if he didn't confirm he would go by the next day, his STIIP benefits would be suspended. Worker not happy about request for examination However, Morris was scheduled to go on a one-week cruise with his wife two days later, so he became stressed in trying to schedule an appointment with his doctor to discuss the IME within that time frame or face losing his STIIP benefits. He re- sponded by saying it was unreasonable to request he undergo an IME prior to a review of all medical information that was available to assess future limitations and restrictions. He also said his doctor believed that "further psychiatric investi- gation is unhelpful." PSA received a new health update form 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: DISABILITY DISCRIMINATION WHEN AN EMPLOYEE has a mental disability, it can be tricky for an employer to know when accommodation is needed or, if the employee is off work, when the employee is coming back. However, employers have a right to sufficient information that will give them idea of an employee's prognosis and likelihood of coming back to work. BACKGROUND

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