Mary Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 2169

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Dopelhamer

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: October 29, 2010

Citation: 2010 HRTO 2169

Indexed as: Dopelhamer v. Workplace Safety and Insurance Board

Appearances BY:

) Mary Dopelhamer, Applicant ) Self-represented ) ) Workplace Safety and Insurance Board ) Gurjit Brar, Counsel Respondent ) )

1The applicant filed an Application on April 15, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the grounds of disability and age with respect to goods, services and facilities in the course of the applicant’s dealings with the Workplace Safety and Insurance Board (“WSIB”).

2The applicant has clearly faced a number of challenges and difficulties since sustaining a workplace injury in November of 2006. She evidently disagrees with some of the WSIB’s decision-making and is concerned that her employer has not properly accommodated her disability since her return to work.

3However, as I explained to the applicant at the hearing, the Tribunal does not have a general power to decide whether the respondent treated the applicant fairly or appropriately. The Tribunal’s powers relate only to alleged discrimination and violations of the Code. In other words, while the applicant has stated that she feels mistreated by the respondent, for the Application to succeed, she must also establish that this alleged mistreatment supports a finding of discrimination.

4In the circumstances, I cannot conclude that the respondent discriminated against the applicant within the meaning of the Code. Accordingly, for the reasons that follow, the Application is dismissed.

BACKGROUND

5The hearing took place on October 21, 2010. At the outset of the hearing, the parties agreed that the Tribunal would take the lead in questioning the witnesses. I heard evidence from the applicant. For the respondent, I heard evidence from Dan Paris, an adjudicator, and Sharon Barrier, a nurse and case manager.

6In an earlier Interim Decision, the Tribunal considered the scope of the allegations contained in the Application as well as the Tribunal’s jurisdiction to proceed with the Application. See 2010 HRTO 765.

7In finding that it did have jurisdiction over the Application, the Tribunal concluded that only the following three issues raised in Application are relevant to the Code:

a) The applicant alleges that a WSIB Claims Adjudicator (now called Case Manager), Dan Paris, assumed that the applicant’s left arm injury, or the fact that the injury failed to heal, was due to arthritis, despite there being no diagnostic information about arthritis on the applicant’s WSIB case file. The applicant alleges that this assumption was made on the basis of her age. The applicant alleges that this assumption resulted in a decision or decisions adverse to her by Mr. Paris in regard to WSIB benefits.

b) The applicant alleges that Sharon Barrier, a “Case Nurse” involved with her Case, stated that “age was a factor” in regard to her injury, and advised that the applicant find another job. The applicant is concerned that this also may have adversely influenced decisions about her benefits.

c) The applicant alleges that, when she returned to work as part of the WSIB process, her disability was not accommodated, in the sense used in ss. 11 and 17 of the Code, by her employer. However, she alleges that the respondent denied her the right to continue on WSIB benefits because the WSIB does not ensure that its standards for “modified work” conform with the accommodation requirements of the Code.

8At the hearing, the evidence was limited to what was relevant to the three allegations described above.

THE EVIDENCE

9Much of the applicant’s evidence related to allegations that her employer did not behave appropriately and did not provide reasonable accommodations following her return to work. I explained to the applicant that her employer is not a party to these proceedings and that the only issue before the Tribunal is whether the WSIB had breached the Code as alleged in the Application and identified in the Interim Decision.

10The applicant also expressed concerns that her WSIB claim had not been addressed in a timely manner, which made it difficult for her to meet her financial obligations. While any undue delay in processing the WSIB claim is certainly unfortunate, there was no contention that the delay arose because of the applicant’s age or disability. In other words, the applicant did not allege or present any evidence that would allow me to conclude that a Code-related ground was a factor in the delay in processing her WSIB claim.

Dan Paris

11The applicant states that Mr. Paris expressed to her in a telephone conversation that she has arthritis, which he related in some way to her age. Mr. Paris denied ever making a comment of this nature.

12The parties agree that the applicant does not have arthritis and there is no medical documentation in the applicant’s WSIB file suggesting that she does.

13In response to my questions, the applicant was not able to describe the context in which these alleged comments were made, nor did she seem to recall the specifics of what was said. For example, when asked whether Mr. Paris’ comments were framed as a question or a statement, the applicant was unable to answer clearly. Similarly, when asked how Mr. Paris was alleged to have connected the arthritis issue to the applicant’s age, the applicant was unable to provide a clear answer.

14Mr. Paris testified that he documents every substantive conversation he has with workers. He has no specific recollection of discussing arthritis or age with the applicant. None of the documentation indicates that such a conversation took place.

15Mr. Paris states that, in discussions with workers, his practice is to limit the conversation regarding medical issues to those conditions identified in the medical documents on file. He states that he would have had no reason to mention arthritis to the applicant. In any event, he states that the existence or absence of arthritis could have had no bearing on his decision regarding benefits.

Sharon Barrier

16The applicant alleges that Sharon Barrier, a nurse and case manager with WSIB, advised the applicant that age was a factor in regard to her injury. According to the applicant, Ms. Barrier also suggested that the applicant find another job. The applicant is concerned that Ms. Barrier’s perceptions of her age may have adversely influenced decisions that were made about her benefits.

17Again, the applicant was unable to provide details about the alleged conversation, either with regards to what was said or the context in which it was said. She testified that she felt hurt and insulted by the comments because she did not wish to find another job and did not feel that WSIB ought to have advised her to do so.

18Ms. Barrier denies making any discriminatory comments to the applicant. She stated that, in terms of making recommendations to the adjudicator, her role is limited to advising regarding:

a. health care services (massage, physiotherapy, etc.) recommended by existing caregivers; and

b. how workers are coping with modified work.

19Mr. Paris testified that a nurse-case manager may also assist the adjudicator with the interpretation of medical information. In any event, Mr. Paris and Ms. Barrier agreed that the adjudicator, not the nurse-case manager, makes all decisions regarding benefits.

20Ms. Barrier testified that age is not a factor in the handling of any worker’s claim. She does not recall ever discussing the applicant’s age with her, but she did say that the issue sometimes comes up in conversations she has with older workers about the rate of their recovery. She states that she sometimes reassures older workers that, while their recovery may be progressing more slowly because of their age, they are receiving appropriate care and simply need to be patient. Although she recalls that the applicant was frustrated with the slow pace of her recovery, Ms. Barrier does not specifically recall mentioning to the applicant that older workers sometimes have a slower recovery rate. She states that she may have mentioned this in order to reassure the applicant.

21Ms. Barrier testified that she would never tell a worker that he or she should find a new job. She denies having said this to the applicant.

Ensuring that modified work complies with the Code

22At the hearing, the applicant took a position that was somewhat different from how this issue was framed in the Interim Decision. At the hearing, the applicant argued that the WSIB failed in its oversight role and that it ought to have been more vigilant in ensuring that the modified work offered to her was suitable in the circumstances. The applicant testified that she advised WSIB that she was asked to do unsuitable work, but that WSIB’s only response was to tell her that there are two sides to every story.

23The applicant acknowledged that she and the employer had reached an agreement on what tasks were suitable for her. She stated, however, that new managers asked her to do additional tasks that were not suitable.

24The respondent directed the Tribunal to written correspondence between the WSIB and the employer. The documents show that the applicant did contact the WSIB on at least one occasion to advise of unsuitable work. The WSIB followed up with the employer, who appears to have acknowledged the error and explained that it was due to new management. The employer expressed a commitment to respecting the agreement regarding suitable tasks and invited the applicant and the WSIB to advise it directly if there were any further issues.

25The applicant did not identify any specific incidents where the WSIB was advised of unsuitable work but failed to take appropriate action.

26The applicant also argued that the WSIB had essentially been duped by the employer, whom she said fabricated schedules and made her duties appear to be lighter than they actually were.

27Although I specifically raised the issue at the hearing, the applicant did not argue or present evidence that her age or her disability were factors in the way in which the WSIB followed up on the modified work provided to her by the employer.

ANALYSIS

28Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

29The issue for me to determine is whether the applicant has established that the respondent has breached section 1 of the Code, based on the comments allegedly made by Mr. Paris and Ms. Barrier or based on the WSIB’s failure to ensure that her employer appropriately accommodated her disability following her return to work.

30The parties’ evidence differs regard whether Mr. Paris and Ms. Barrier made the comments alleged by the applicant. The determination of the issues in this case will turn in part on whether or not I find that these comments were actually made. Accordingly, it is necessary for me to assess the credibility of the three witnesses.

31In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.):

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken…

32In addition to these considerations, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.

33In light of all of these factors, I am have concerns about some of the applicant’s evidence. I am troubled by the considerable ambiguity in the her testimony, particularly regarding the context in which the alleged comments were made. Her evidence was vague and lacked the detail which I would have expected given how offended and hurt she says she was by the alleged comments.

34In comparison, I found the evidence of Dan Paris and Sharon Barrier to be credible and to contain a reasonable level of detail in the circumstances. Their evidence was also consistent with the documents filed by the respondent.

35Both Mr. Paris and Ms. Barrier acknowledged that they did not recall the details of every interaction they may have had with the applicant. However each was able to explain their practices in similar circumstances. Mr. Paris explained, and I accept, that he would have no reason to discuss a medical condition not documented in the file. Ms. Barrier explained that age is never a relevant factor and that she discusses it with workers only in regards to the rate of their recovery. Any discussion regarding age, she says, would not have been of the nature alleged by the applicant.

36I accept the explanations provided by Ms. Barrier and Mr. Paris as to their general practices and I accept that there was no basis to deviate from these regular practices in the applicant’s circumstances.

37On a balance of probabilities, based on the applicant’s very vague evidence, I cannot conclude that the comments she alleges were made. The applicant has not satisfied me that her age or disability were a factor in the way in which she was addressed or treated by either Mr. Paris or Ms. Barrier.

WSIB’s role in ensuring appropriate accommodations

36The applicant expressed concerns that WSIB failed to follow up on her concerns about modified work. However, she did not provide specific examples of the WSIB’s alleged failure and, again, spoke only in general terms. She did not direct the Tribunal to any particular incident in which she had raised unsuitable work issues with the WSIB and the WSIB failed to take appropriate action.

37Moreover, she made no suggestion that the WSIB’s failures in this regard related in any way to a Code-related ground. In other words, she did not argue that her age or her disability were a factor or that the WSIB treated her differently from other workers on the basis or her age or her disability.

38As I explained to the applicant at the hearing, the Tribunal’s role is limited to determining whether there has been a breach of the Code. The Tribunal has no general power to determine whether the WSIB acted fairly or appropriately in the circumstances. There is no evidence that the respondent, when made aware of the applicant’s concerns, failed to ensure appropriate accommodations. Similarly, there is no basis to conclude that the respondent otherwise knew or ought to have known that the applicant was not being accommodated appropriately.

39For these reasons, the Application is dismissed.