Alexander v. Zellers, 2009 HRTO 2167

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosaline Alexander

Applicant

-and-

Zellers Inc. and Canadian Benefits Management Ltd.

Respondents

-and-

Canadian Auto Workers, Local 1000

Intervenor

Decision

Adjudicator: Brian Cook

Date: December 14, 2009

Citation: 2009 HRTO 2167

Indexed as: Alexander v. Zellers

APPEARANCES:

Rosaline Alexander, Applicant ) Glen Morrison, representative )

Zellers Inc. and Canadian Benefits ) Catherine Peters, counsel Management Ltd., Respondents )

Canadian Auto Workers, ) No one appearing Local 1000, Intervenor )

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges that the respondents violated the applicant’s rights under the Code by discriminating against her on the basis of a disability by not providing reasonable accommodation of a workplace injury. A hearing was held on August 17 and 24, 2009.

2I heard evidence from the applicant. Brooke Ferguson, Debra Reid and Derek Sampath are with the Human Resources department of the respondent Zellers Inc. (“Zellers”) and appeared as witnesses for Zellers as did Bob Condon and Sherry Narine. Kathleen Gratton was a witness on behalf of the respondent Canadian Benefits Management Ltd. (“CBML”), and so was Shoba Thomas. The respondents subpoenaed Stephen Moses, a union representative, but he did not appear until the second day of hearing.

3At the outset of the hearing, there was a discussion about how the hearing would proceed. I suggested that a possible approach would be for me to primarily lead the questioning of the witnesses. I made it clear that this was only a suggestion and that the hearing could equally well proceed according to the more traditional adversarial model. After consultation, the parties agreed to proceed in the manner I suggested. At the end of my questioning, the representatives reviewed their notes to ensure that all important areas had been covered and that all relevant questions, including any cross-examination questions, had been asked.

Decision

4For the reasons that follow, I find that the respondents did not discriminate against the applicant contrary to the Code.

Introduction

5The applicant was employed by Zellers at its distribution centre. Products come to the distribution centre by truck and are sorted for distribution to individual stores. The applicant suffered a work-related low back injury on April 26, 2006. The applicant was given modified work. She suffered a right shoulder injury on June 20, 2006. There was no lost time from work associated with the shoulder injury, and no medical treatment was required until September 28, 2006. The Workplace Safety and Insurance Board (“WSIB”) initially determined that the shoulder problems in September 2006 did not result from the June 2006 injury but that decision was later reversed by a WSIB Appeals Resolution Officer.

6CBML is a company that provides employers with assistance in managing employee disability and sickness issues. It is an independent company that has a contract with Zellers. Zellers uses CBML to help manage cases of employees where the disability is not work-related. If the matter is work-related, it is dealt with by the WSIB.

7The applicant claims that she was not adequately accommodated and she seeks damages on the basis that she experienced pain and “mental and emotional stress” leading to lost time from work. The respondents claim that the applicant was adequately and reasonably accommodated. The applicant continues to be employed by Zellers but there is an ongoing work disruption that started in July 2009.

Background Facts

8The applicant experienced an earlier low back injury in February 2005. She was given modified work after that injury until August 2005, by which time she had recovered. The applicant feels that the accommodation process in relation to that injury was appropriate.

9On April 26, 2006, the applicant experienced a gradual onset of low back pain while packing on a line. She saw her family doctor on May 3, 2006, and was authorized off work until May 8, 2006. However, the applicant was offered modified work at reduced hours on May 3, 2006, and accepted the offer. She complained that this job involved prolonged standing which was aggravating her low back pain and she was transferred to a different department where she worked for about six weeks without incident.

10On June 20, 2006, she was told to report to the “merge” department. This is an area where boxes of product come together from around the plant for routing to the shipping department. On her first day on this job, the boxes got jammed and she had to pull on them to free the jam. She experienced an onset of right shoulder pain while doing this. The injury was reported to the applicant’s supervisor but was not reported to the WSIB because there was no lost time associated with the injury.

11The applicant testified that she had continuing problems due to her shoulder injury after the June 2006 injury. However, there is no medical evidence of any shoulder restrictions for several months after the injury. It appears that she was mostly treated by Dr. Lai-Fang, a chiropractor. He filed a Functional Ability Form in August 2006 and another in September 2006. Both indicated that there were ongoing low back restrictions but did not indicate any shoulder restrictions.

12Derek Sampath is responsible for developing return to work plans for injured employees. He testified that he develops a plan in conjunction with the injured worker. Plans are developed on the basis of medical information set out in functional ability forms submitted by the worker’s doctor. CBML is involved in cases where the injury is not work-related. In that event, CBML receives the functional ability forms and any other medical information. CBML then advises Mr. Sampath about what medical restrictions are appropriate. If the injury is work-related, CBML is not involved and information to inform the return to work process comes from the WSIB and the functional ability forms provided to the employer. Any decision by CBML can be appealed by the employee if the employee disagrees.

13After the shoulder injury, a series of return to work plans were developed, which included accommodation of low back restrictions. The applicant complained that the jobs she was given were too heavy. She was advised not to do anything that exceeded her restrictions.

14On September 28, 2006, Dr. David Dillon filed a Functional Ability Form that set out restrictions for the right shoulder. Since the applicant had then received medical treatment for her right shoulder, the June 20, 2006 injury was reported to the WSIB.

15On October 3, 2006, a new Return To Work Plan was developed, indicating that the applicant had both low back and right shoulder restrictions. Subsequent Plans adopted similar restrictions.

16On May 28, 2007, the WSIB Claims Adjudicator determined that while there was proof of the June 2006 shoulder injury, the subsequent shoulder problems did not result from that injury.

17A referral was made to CBML with respect to management of the applicant’s right shoulder. On July 3, 2007, CBML advised the employer that the medical information did not support a need for modified work. Following a conference call involving the applicant on July 25, 2007, CBML received further medical information and determined that the applicant did require modified work. The applicant did not appeal this decision.

18Despite the earlier determination by CBML, the Return to Work Plan in effect was not changed and continued to reflect ongoing shoulder restrictions. Mr. Sampath testified that the employer’s practice is to continue restrictions that have been identified by an employee until the employee says the restrictions are not required. He testified that this generally happens notwithstanding any determination by CBML and that the restrictions will continue even if CBML advises that no restrictions are necessary.

19On February 28, 2008, the applicant complained of increased low back pain that she attributed to her work. She sought medical attention at a hospital Emergency Room but did not lose any time from work. A Functional Ability Form was provided by the applicant’s family doctor indicating the need for continuing low back and shoulder restrictions. This information was reviewed by CBML. CBML advised the employer that there was no objective medical evidence to indicate the need for ongoing accommodations.

20In late March 2008, the applicant’s family doctor sent another Functional Ability Form indicating that the applicant could only work for four hours a day. A new Return to Work Plan was developed to reflect this although it is not clear for how long the applicant worked at reduced hours.

21The applicant was off work from May 25 to May 29, 2008, complaining of increased shoulder pain. CBML determined that there was no objective medical evidence to support this absence and reiterated its opinion that there was no objective medical evidence to support a need for modified work although it was noted that the family doctor had provided a list of restrictions for the low back and shoulder.

22With the assistance of Mr. Morrison, the applicant objected to the decision of the WSIB Claims Adjudicator regarding her right shoulder. In a decision dated November 3, 2008, a WSIB Appeals Resolution Officer determined that the applicant had ongoing right shoulder problems that were the result of the work-related injury of June 20, 2006.

23The WSIB Claims Adjudicator then determined that the lost time from May 25 to May 29, 2008 resulted from the June 2006 shoulder injury, and granted the applicant loss of earnings benefits for that time. The applicant was also referred for a medical assessment of her shoulder impairment and she was eventually granted a Non-Economic Loss award. The Claims Adjudicator also referred the claim to a WSIB return to work specialist.

24There was evidence about the recommendation of the WSIB return to work specialist and whether this recommendation was implemented. However, for reasons given below, I have not had regard to this evidence.

25The applicant has not been at work since July 2009 due to a labour disruption.

Analysis and Conclusions

26Section 5 of the Code provides:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

27Section 17 provides:

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

28Pursuant to section 17, the first question in the case of an employee with a disability is whether the employee is capable of performing the essential duties of employment that is available with the employer. The employer must reasonably accommodate the needs of the disabled employee unless accommodation would result in “undue hardship”.

29The duty to accommodate has both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3, 1999 CanLII 652 (“Meiorin”) at paras. 62-68. The Supreme Court has emphasized that the procedural component requires an individualized investigation of accommodation measures and assessment of the employee’s needs:

Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose should be considered in appropriate cases. (Meiorin, para. 64)

30The Divisional Court has stated as follows with regard to the procedural component:

The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Sup. Ct.)

31The substantive aspect of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. A recent decision of this Tribunal has explained that “the duty to accommodate involves the obligation to consider the possibility of appropriate alternative employment or redefined responsibilities”, Grzesiak v. DOT Benefits, 2008 HRTO 206 at para 98. It is the employer who bears the onus of demonstrating what considerations, assessments and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin, supra. To determine whether the substantive component has been met, it is necessary to consider the reasonableness of the accommodation that was offered, or the reasonableness of the respondent's reasons for not providing accommodation.

32At the same time, accommodation is a collaborative process. The employee must co-operate in the process and provide as much information as possible to facilitate the search for reasonable accommodation. (See Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; Wall v. The Lippé Group, 2008 HRTO 50; Mellon v. Canada (Human Resources Development), [2006] C.H.R.D. No. 2.) In some cases, accommodation can be quite straightforward. For example, if the employee has a regular job with a regular workstation, it may be possible to make changes to the workstation so that the employee can continue to do the essential duties of the employee’s regular job. If there is a clear and long-term disability and if the essential duties of the job do not change, once the accommodation has been made, there may be no further problems or disputes regarding accommodation.

33However, in other cases, the accommodation process can be more complex. If the nature of the disability is not clear or if the restrictions associated with the disability are not completely clear, or if they change, there can be a need for ongoing adaptation of the accommodations that are required. More flexibility is also necessary if the employee does not have a fixed workstation or is assigned to different jobs depending on the needs of the employer.

34While the primary responsibility for making accommodations available rests with the employer, the employee is also responsible for making the process work. First, the employee must provide the employer with the necessary information to allow the employer to accurately understand what the restrictions are and how they can best be accommodated. The employee must also participate in discussions about finding solutions. If the workforce is unionized, the union is typically also involved in identifying appropriate accommodations and helping to solve problems that arise.

35In this case, there is no doubt that Zellers provided the applicant with modified work in an attempt to accommodate her needs so that she could do the essential duties of suitable employment that was available. The applicant’s regular pre-disability job was Material Processor. The Physical Demand Analysis for this job shows that it is a relatively heavy job, involving lifting of up to 27 kilograms and regular lifting of 8 kilograms. After April 2006, the work that the applicant was assigned was modified with respect to low back restrictions and later also with respect to right shoulder restrictions.

36There is thus no dispute that there was some accommodation of the applicant’s disabilities. The issue is whether the process of assessing the accommodation that was required was reasonable and also whether the accommodation that was provided was reasonable.

37In general terms, the accommodation process appears to have worked as follows:

• The applicant provided medical information about her medical restrictions, mostly in the form of Functional Ability Forms completed by her attending doctors and a chiropractor.

• Mr. Sampath or others in the Human Resources department reviewed this information and engaged in discussion with the applicant and a union representative and developed a Return to Work Plan. The Plan identified different jobs that were generally physically suitable while recognizing that some aspects of the job might exceed the applicant’s restrictions. The Plan was signed by all the parties, including the applicant.

• New Plans were developed from time to time, based on updated medical information, the types of jobs that were available and concerns by the applicant.

• The applicant was told that if aspects of a job exceeded her restrictions, she should not do those aspects of the job. For example, if she was assigned to a line that had boxes of varying weight, she should not try to move or lift boxes that were too heavy and should instead leave these for others.

• CBML was involved in reviewing medical information and made determinations about what accommodations, if any, were medically necessary. In some cases, CBML might receive medical information that was not made available to Mr. Sampath and the Human Resources department. However, in this case, the medical information received by CBML was for the most part the same information received by the Mr. Sampath and the Human Resources department.

• The medical information consistently indicated that in the opinion of the applicant’s health care providers, she had medical restrictions that required accommodation. CBML did not always accept those opinions and instead determined that there was no “objective medical evidence” of the need for accommodation.

38While there was little in the way of an explanation from CBML for rejecting the findings of the treating health care professionals with respect to the need for ongoing accommodation, ultimately, the evidence was clear that the recommendations and findings of CBML had little or no effect on the accommodation process that was followed in the workplace. Even though CBML concluded on several occasions that the applicant did not require accommodation, the applicant was still offered modified work that took into account the restrictions identified by her health care providers. I accept Mr. Sampath’s evidence on this point, which was not challenged by the applicant, and I find that the applicant continued to receive accommodation despite the findings of CBML.

39The applicant agrees that she was accommodated in that she was given Return to Work Plans and was not assigned to her pre-disability job. However, the applicant claims the accommodation that was provided was not reasonable because it was not sufficient.

40The flaws identified by the applicant include the fact that she had to identify jobs that were too heavy and that might exceed her restrictions. The applicant noted that typically it is necessary to handle a variety of boxes with significant variation is weight. It is not always possible to tell which boxes are heavy from sight. However, with the possible exception of the “merge line” incident, discussed below, it appears that the applicant was able to do the jobs that were assigned on the basis that she avoided lifting boxes that were either obviously heavy or that were found to be heavy when she tried to lift them.

41With regard to the incident on the “merge line” that resulted in a shoulder injury, the evidence establishes that the shoulder injury occurred when the applicant tried to free a jam that had occurred. While this was a work-related injury that occurred while the applicant was doing modified work, it did not result from the performance of the regular aspects of the modified job, which did not include freeing jams. The injury was an “accident” in the sense of an unexpected occurrence or a chance event and could not have been identified as a likely consequence of performing the regular aspects of the job.

42Mr. Morrison submitted that the accommodation did not respect the applicant’s dignity. There was no evidence that she was subjected to ridicule or inappropriate comments by co-workers or her supervisors because of any refusal to do jobs that she felt were not suitable. On those occasions when the applicant felt that the job that she was assigned might involve heavy work, she was told not to do the heavy aspects of the job and to only do those aspects that she felt were in her restrictions.

43Mr. Morrison noted that at one time, the applicant was required to work in an area that was cold and suggested that this undermined the applicant’s dignity. The applicant’s testimony was that the work was suitable but it was near loading doors. When the weather turned, it got colder. She complained about this and was moved. In my view, this job assignment did not undermine the applicant’s dignity.

44The most recent accommodation, recommended by the Workplace Safety and Insurance Board Return to Work Specialist who visited the workplace, involved placing skids of product on top of empty pallets to raise the product so that it would be more comfortable to handle. The applicant testified that this accommodation has not been successful because she requires forklift truck operators to move the skids. While there was at first a driver who understood that this was something he was required to do, after a time, the applicant had to ask other drivers who might be available to do the moving and they were not always prepared to do so.

45The Application in this case was filed in July 2008. The WSIB Return to Work Specialist suggested the accommodation involving raising the product in January 2009.

46Prior to the hearing, the respondents sought detailed particulars of the allegations that the applicant intended to raise at the hearing. Mr. Morrison advised that the Application provided a full explanation of the allegations that the applicant proposed to prove at the hearing.

47In these circumstances, I conclude that it would not be fair for me to consider allegations that arose only during the hearing regarding the accommodation suggested by the WSIB Return to Work Specialist.

48In my view, while the accommodation process in this case was not perfect, it has nevertheless been reasonable under the circumstances. The process has recognized that the applicant requires accommodation. The process was based on the need for accommodation that was identified by the applicant and supported by the medical information. The applicant was involved in the process and her concerns were taken into account. The accommodation has consisted of different work assignments and an ongoing commitment that the applicant is not required to do things that are outside her restrictions. It is a process that has permitted the applicant to continue to work in the workplace with the same benefits and rights as other workers in the same workplace.

49I find that Zellers provided appropriate accommodation of the applicant’s workplace injury and did not discriminate against the applicant on the basis of a disability. There is no basis for the claim against CBML. The Application is dismissed.