Canadian Employment Law Today

February 28, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 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. e arbitrator noted that the accommodation process is "a two-way street" and CPR's argument was centred on Robinson's duty to provide suffi cient infor- mation to allow the railway to accommo- date him. e arbitrator found that while the hos- pital assessment in March raised June 6 as a possible return date for Robinson, this was only a suggestion and not a certainty. ough later functional abilities forms also suggested full duties, the later medical in- formation Robinson provided indicated that wasn't the case. In addition, CPR didn't pro- vide any evidence that it couldn't accommo- date Robinson with the notice provided, said the arbitrator. "Based on the medical information pro- vided to CPR, it is unclear why they con- cluded that they could no longer continue to accommodate Mr. Robinson during the graduated period suggested by his physi- cian," 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 Pacifi c Railway and Teamsters Canada Rail Conference (Robinson), Re, 2017 CarswellNat 7905 (Can. Railway Of- fi ce of Arb. & Dispute Res.). Graduated return to work throws accommodation plan off the rails THIS EDITION of You Make the Call fea- tures 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 Pacifi c 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, Robin- son faced signifi cant restrictions on what he could physically do on the job, so CPR ac- commodated him with modifi ed duties. Robinson provided a functional abilities form in accordance with Ontario Workplace Safety and Insurance Board (WSIB) require- ments on Jan. 7, 2013, a Form 26 report from his family doctor on Jan. 10, a hospital as- sessment 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 benefi ts 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 ben- efi ts until June 4 coupled with the March hospital assessment meant that Robinson would be able to return to full duties in the fi rst week of June. It requested further medi- cal information, and Robinson's doctor rec- ommended on May 27 that Robinson should start at two hours per day for one week, then increase by two hours per day each week un- til he reached a full eight hours per day. e 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. e railway said it was relying on the March assessment and the WSIB benefi ts award that indicated a June 4 return to work, and none of the informa- tion Robinson had provided changed that date. Robinson had also not provided medi- cal updates leading up to his return, so CPR was caught off -guard when his doctor indi- cated 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 abili- ties form from his doctor that recommend- ed 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 — diff erent from the May 27 recom- mendations CPR maintained it would stick with the June 4 return date without medical infor- mation that stated otherwise, arguing it was diffi cult 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 abili- ties form with the same graduated schedule as the previous one. However, he remained off work until Aug. 6. e Teamsters Canada Rail Conference, representing Robinson, fi led a complaint alleging CPR failed to accommodate Robin- son by not implementing the graduated re- turn to work schedule and keeping him from working until August.

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