Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 News | December 2017 | CSR pain and reduced range of mo- tion afterwards without inter- ruption, it was likely the com- pression fractures with which he was diagnosed were the re- sult of the May 2014 accident. It also found that the mechanism of the injury — the jolting up- ward and downward motion of the truck seat — was also con- sistent with the compression fractures. The court noted that the WSIB's medical consultant didn't have the benefit of the worker's osteoporosis diagno- sis and its accompanying bone mineral density report when he provided his opinion that the ac- cident itself shouldn't cause the compression fractures. Howev- er, it was important to note that the worker's family doctor was of the opinion right from the be- ginning that the accident caused the fractures — explaining later that the worker's low bone den- sity contributed to the worker's condition but the workplace ac- cident actually caused the frac- tures — and the worker hadn't complained of back pain prior to the accident. In addition, the second doctor and physiothera- pist shared that opinion. "While the worker's osteo- porosis likely made the worker more vulnerable to injury, given the opinion of (the worker's doc- tor), the compatibility with the mechanism of injury and the compression fractures diag- nosed, and the continuity of se- vere symptomology from the ac- cident date onward, we find that the work accident was a signifi- cant contributing factor in the worker's compression fractures of the T12 and L1 vertebrae," said the tribunal. The worker also presented evidence that the fractures continued to be detected in the worker's MRI in August 2014 as well as subsequent MRIs in March 2015 and April 2017 and he continued to suffer from symptoms. This demonstrated the injury did not resolve by Aug. 5, 2014, and the worker was entitled to ongoing entitle- ment beyond that date, said the tribunal. The tribunal disagreed with the finding that the worker's employer had available suitable work by July 14 and the injury resolved by Aug. 5, 2014. The medical reporting from all of the worker's health providers indi- cated the worker couldn't return to work at all — in fact, the phys- iotherapist reported on July 30 that the worker needed at least four more weeks to recover. The worker also had a note from his doctor in mid-August that said he was unable to return to work until Oct. 7, 2014. In addition, the distance of the suitable work the employer offered from the worker's home required a lot of driving, which was particularly difficult for someone with a back problem. The position was not only un- suitable because the worker couldn't perform any work at the time, but especially because of the worker's medical restric- tions, said the tribunal. The tribunal determined that the worker was entitled to ben- efits for his compression frac- tures to the spine, ongoing en- titlement for a back impairment beyond Aug. 5, 2014, and full loss-of-earnings benefits from July 14, 2014, to the date of the hearing less any earnings made from seasonal work the worker performed. For more information see: • Decision No. 2579/17, 2017 CarswellOnt 14817 (Ont. Workplace Safety & Insurance Appeals Trib.). Worker denied < pg. 3 MRIs, worker's symptoms showed injury didn't resolve and emotionally abused her at work. She followed up with a letter a couple of days later out- lining examples of the abuse — such as tampering with the cash box, creating phony invoices, and physically struggling over Roberts' phone leaving her with bruises and scratches — which caught the board off-guard as she hadn't mentioned anything about it during her termination meeting. The board was also surprised that Kushner hadn't mentioned anything about it, but Roberts had felt at the time they could "deal with it" without getting the board involved. A few weeks later Roberts filed an unjust dismissal com- plaint with Employment and Social Development Canada. She said she believed she was fired because the board thought Kushner was playing favourites, but it was out of her control. The adjudicator noted that the Supreme Court of Canada had found that the right to dis- miss employees with common- law reasonable notice "has been completely replaced under the (Canada Labour Code) by a re- gime requiring reasons for dis- missal" for federally regulated employers. As a result, the co- op's dismissal of Roberts had to be for cause and the only time severance is appropriate is in cases of layoff or a reduction of work. The adjudicator found the reasons the co-op gave for Rob- erts's termination were "vague and general at best." The board of directors told Roberts it didn't think she could work with other employees and she was too close with Kushner, but it didn't have any evidence the plant's op- erations were affected by the relationship between them — in fact, the board of directors didn't even know they had any kind of relationship until Kush- ner brought matters to their at- tention, said the adjudicator. The adjudicator also found that the board didn't investi- gate why Roberts and Carrier couldn't work together any lon- ger or Roberts' revelations of workplace abuse at the hands of Carrier, despite Roberts' letter outlining examples. "The co-op bears a responsi- bility for the actions of their em- ployees on the job. The board and manager have a responsibil- ity to fully investigate any inci- dents which adversely affect an employee," the adjudicator said. "The type of conduct meted out by Mr. Carrier on Ms. Roberts amounts to bullying and ha- rassment… (Roberts) left work because she did not want to continue to be the victim of such abusive conduct." The adjudicator determined Roberts' termination was "un- just and unfair." The co-op was ordered to pay Roberts $13,000 in damages for unjust dismissal and the abuse she suffered in the workplace. "The board and management have a duty to carry out their due diligence and to ensure all employees work in a safe and harassment-free environment," said the adjudicator. "The co-op did not do their due diligence by carrying out a thorough inves- tigation. Instead, they fired Ms. Roberts without cause." For more information see: • Roberts and High Prairie Seed Cleaning Co-op Ltd., Re, 2017 CarswellNat 4281 (Can. Lab. Code Adj.). Worker fired < pg. 6 Employer didn't investigate alleged abuse, reasons for conflict Position deemed suitable involved a lot of driving — not good for a back injury Two employees gave ultimatums that each couldn't work with the other

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