Linda Bechard v. Ontario Lottery and Gaming Corporation, 2012 HRTO 1761

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Bechard

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

DECISION

Adjudicator: Eric Whist

Date: September 18, 2012

Citation: 2012 HRTO 1761

Indexed as: Bechard v. Ontario Lottery and Gaming Corporation

APPEARANCES

Linda Bechard, Applicant

Gordon Bechard, Representative

Ontario Gaming and Lottery Corporation, Respondent

David Law, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability. The Application alleges that the respondent required the applicant to return to work even though the applicant had medical documentation to support a continued absence from work. The issue in this case is whether the respondent met its procedural and substantive duty to accommodate the applicant’s disability.

2The hearing took place on June 22, 2012. The applicant decided to call no witnesses. The respondent subsequently decided to call no witnesses. The hearing proceeded with the parties making submissions based on the documentary evidence that had been disclosed. This documentary evidence included correspondence exchanged between the respondent, the applicant, the applicant’s doctor and the respondent’s third party disability management provider, Acclaim Ability Management Inc. (“Acclaim”). The authenticity of these documents was not disputed. As such, I am relying on these documents for the truth of their contents and will attribute the appropriate weight to this evidence, as I deem appropriate.

DECISION

3I find the respondent has met its duty to accommodate the applicant and consequently the applicant’s rights under the Code have not been breached.

EVIDENCE

4The applicant is employed as a Player Service Representative at the respondent’s operation at the Woodbine Racetrack. On November 1, 2010 she suffered a non-work-related injury, she broke her ankle. The applicant was subsequently off work until February 21, 2011.

5The respondent retains Acclaim as a third party disability management provider to assist with employees who are absent from work for medical reasons. Employees who are absent from work for medical reasons provide Acclaim with medical information related to their absence and their ability to return to work. Acclaim reviews this information and either communicates a decision or provides guidance to the respondent on the issues involved.

6On December 13, 2010 the applicant’s orthopaedic surgeon provided a written assessment of the applicant’s medical status to Acclaim on a form provided by Acclaim. The surgeon provides an assessment of the applicant’s current functional capacities indicating, in part, that she is unable to climb stairs, is able to sit but for less than hour and that she will require 6-8 weeks of rehabilitation. The surgeon indicates on the form that the “Recommended possible return to regular duties” date is March 1, 2011.

7The applicant’s surgeon provides a further written assessment of the applicant’s medical condition to Acclaim on a “Medical Update” form provided by Acclaim following an examination of the applicant on December 18, 2010. The surgeon states that the applicant’s functional restrictions and limitations include no standing or walking and that, in the surgeon’s opinion, it would be 2-3 months before the applicant could return to work. The surgeon indicates that the “Expected date of return to Work Full-time” would be February 15, 2011.

8On December 21, 2010 Acclaim wrote to the applicant stating that it is following up on the review of the medical documentation submitted by the applicant’s physician in support of the applicant’s absence from work. The letter states that the applicant’s absence has been “medically supported” for the period December 28, 2010 to January 31, 2011 and that Acclaim had advised the respondent of this fact. The letter further states that if the respondent is able to accommodate the applicant’s restrictions by offering modified work, the applicant’s absence will no longer be supported, that is the applicant will not continue to receive short term benefits. The letter also indicates that if the applicant wished to continue her claim she needs to submit additional medical information by January 24, 2011.

9The applicant’s physiotherapist submits a “Functional Abilities Summary” dated January 21, 2011 to Acclaim on a form provided by Acclaim. The physiotherapist provides an assessment of the applicant’s capabilities and limitations which indicates the applicant is capable of walking less than 30 minutes and standing less than 15 minutes. The physiotherapist indicates that the applicant would be able reach full functional recovery in 3-6 months and would partially recover in 2-3 months. The physiotherapist states that the applicant will require physiotherapy for another 6-8 weeks. The functional abilities form provided to the physiotherapist by Acclaim does not ask for an expected date of return to work.

10On January 28, 2011 Acclaim wrote to the applicant stating that it was following up on the review of the medical documentation submitted by the applicant’s physician in support of the applicant’s absence from work. The letter then states that the applicant’s absence from work is medically supported from January 31 to March 1, 2011 and that Acclaim has apprised the respondent of this fact. The letter then states:

Please note that should your employer be able to accommodate your restrictions to allow for a modified return to work your absence will no longer be supported based on OLG’s ability to offer a safe modified return to work. We require additional medical information (enclosed) in order to continue to support your claim. Please submit this medical by February 28, 2011. (bold in original)

11The respondent prepared a return to work plan for the applicant. This plan is dated January 28, 2011. The plan covers the period February 1 to February 28, 2011. The plan identifies a number of restrictions for the applicant including walking less than 30 minutes, standing less than 15 minutes and limited lifting. The return to work plan specifies a graduated return to work indicating that for the week of February 1 the applicant would work up to three non-consecutive shifts of four hours each and by the week of February 28 the applicant would be working up to five shifts of 8 hours each.

12The respondent apprises the applicant of its proposed return to work plan by telephone on the afternoon of Friday, January 28, 2011.

13On Tuesday, February 1, 2011 the respondent wrote to the applicant to state, in part:

We have been advised by OLG’s Disability Management Service provider (ACCLAIM) that the medical documentation received on your claim does not support your absence from work due to illness, therefore your STSP [Short Term Sickness Plan] ceases as of February 1, 2011.

As a result of this non-support decision the following options are available to you:

1. return to work on your next regularly scheduled shift.

2. You may appeal the decision by submitting new, objective medical information to support your claim to ACCLAIM. You must notify HR and your ACCLAIM Ability Management Consultant of your intention to appeal this decision by February 4, 2011 This may be done verbally; however, it must be followed by a written notice of your intent to appeal. (bold in original)

14The applicant did not return to work on her next regularly scheduled shift.

15On February 4, 2011 the applicant provided written notice to the respondent of her intent to appeal the decision to terminate her STSP benefits as of February 1, 2011.

16On February 11, 2011 the applicant’s surgeon provides an assessment to ACCLAIM stating that the applicant is able to return to work with restrictions The doctor indicates that the restrictions should be in place for four weeks and that the applicant should return to full time work on a graduated basis. The identified restrictions and the recommended graduated return to full time work are almost identical to those included in the January 28, 2011 return to work plan with the added restriction that the applicant should not sit on a high stool.

17On February 17, 2011, the respondent issues an amended return to work plan based on the February 11, 2011 assessment provided by the applicant’s surgeon. The applicant agrees to this return to work plan (she signs it).

18The applicant returned to work on February 21, 2011.

19The applicant’s appeal of the decision to terminate her STSP benefits was successful and ACCLAIM reinstated the applicants STSP benefits for the period February 1 to February 21, 2011. Acclaim informed the applicant of its decision in a letter dated April 21, 2011.

20The applicant filed her Application on March 14, 2011.

21The applicant had a number of further medical absences after March 14, 2011 that give rise to further return to work plans. There is no evidence before me that the applicant had issues with how these return to work plans were developed or implemented.

22The applicant submits that it was a violation of her rights under the Code to expect her to return to work on February 1, 2011 as the earliest date her surgeon indicated that she was able to return to work was February 15, 2011. The applicant submits that the respondent was wrong when it stated in its February 1, 2011 letter that the medical documentation she provided did not support her continued absence from work due to illness and consequently so was the decision to suspend her STSP benefits.

23The respondent submits that the expectation that the applicant return to work on February 1 was reasonable as the duties proposed by the respondent in its January 28, 2010 return to work plan were within the applicant’s identified medical restrictions. The respondent submits that the process that led to the applicant being successfully returned to work on February 21, 2011 was reasonable, and accordingly, the respondent met the procedural and substantive components of its duty to accommodate the applicant.

ANALYSIS

24The Application relates to sections 5, and 17 of the Code. Section 5 provides:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… 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… disability and age.

Section 17 sets out an employer’s duty to accommodate a disability. It 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.

25Accommodation involves a dialogue between an employer and an employee. The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868. The substantive duty to accommodate requires an employer to make modifications or provide the accommodation necessary (short of undue hardship) in order to allow an employee with Code-related needs to participate fully in the workplace. This may include modifying duties or hours or the workplace itself, up to the point of undue hardship.

26The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address these needs. In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal held that failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation.

27The duty to accommodate places obligations on the employee seeking accommodation, as well. An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing the employer with a reasonable amount of information about his or her work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship.

28There was no dispute at the hearing that the applicant’s injury constituted a disability under the Code. The issue to be determined is whether the respondent met its procedural and substantive duty to accommodate the applicant’s disability.

29I find, based on the information before me, that the position the respondent ultimately provided the applicant met its substantive duty to provide reasonable accommodation. The respondent developed a return to work plan for the applicant on January 28, 2011 which was then modified after the applicant provided further medical information from her February 11, 2011 appointment with her doctor. The applicant signed this return to work plan accepting the modified duties offered by the respondent. There were no issues raised about the applicant’s experience in this modified position after the applicant returned to work on February 21, 2011. I am satisfied that the applicant returned to work in a position that met her physical restrictions. This was not disputed.

30I am of the further view that the steps the respondent took between January 28, 2010 and February 21, 2010 to facilitate the applicant’s return to work were reasonable and as such the respondent met the procedural component of its duty to accommodate.

31The respondent provided the applicant with a return to work plan on January 28, 2010 that it based on the medical restrictions the applicant’s physiotherapist had provided to Acclaim. This plan was modified based on further medical information from the applicant. The applicant agreed to the plan and was successfully returned to work. I am satisfied that this process did involve the respondent taking steps to assess the applicant’s individual needs based on medical information provided by the applicant and that the applicant had an opportunity to participate in an accommodation process that led to her being successfully returned to the workplace.

32The applicant’s key allegation is, of course, that part of this process was not reasonable. The applicant is of the view that the respondent’s February 1, 2011 letter stating that she was expected to return to work on her next shift and that if she did not she would lose her STSP benefits was not reasonable and that this action constitutes a failure by the respondent to meet its duty to accommodate. The applicant alleges that the respondent inappropriately insisted that she return to work when she had medical documentation to support a continued absence from work.

33The applicant submits that both her surgeon and her physiotherapist were of the view that she required until at least February 15, 2011 to recover from her injury. She submits that Acclaim acknowledged her need for more time to recover when it stated in its January 28, 2011 letter to the applicant that the applicant’s absence from work was medically supported from January 31 to March 1, 2011 and that Acclaim had apprised the respondent of this fact.

34It is relevant to note that the December 21, 2010 correspondence from the applicant’s doctor to Acclaim refers specifically to the applicant returning to “work full-time” by February 15, 2011 and his December 13, 2010 correspondence refers to the applicant returning to “regular duties” by March 1, 2011. Acclaim’s January 28, 2011 letter is not stating, as it appears the applicant is contending, that the applicant has medical documentation to continue to remain off work but rather that she has medical documentation to support her not returning to her pre-injury regular job duties until at least March 1, 2011. This is further borne out by the passage in Acclaim’s letter that states:

Please note that should your employer be able to accommodate your restrictions to allow for a modified return to work your absence will no longer be supported based on OLG’s ability to offer a safe modified return to work.

35Under these circumstances, I do not find it unreasonable that the respondent proposed on January 28, 2011 a graduated return to work program for the applicant beginning in February based on the medical information that the applicant had already provided about her physical restrictions.

36I also find that it is reasonable for the respondent to take the position that given it could provide modified work for the applicant that the respondent understood met the applicant’s identified restrictions that the applicant would no longer receive short term disability benefits if she chose not to return to work.

37Importantly, the respondent also made it clear in its February 4, 2011 letter that the applicant could decline to accept the return to work plan and appeal the decision to end her STSP benefits. The applicant, through this appeal process could provide further medical documents to argue that she did have medical reasons to remain off work and to not accept the respondent’s return to work plan. I find this appeal mechanism to be a significant component of the accommodation process adopted by the respondent. It allowed the applicant to challenge the respondent’s determination that the return to work plan it offered the applicant on February 1, 2011 was appropriate.

38I further find it significant that the accommodation process continued after February 1, 2011 notwithstanding the parties’ disagreement over the applicant returning to work. The parties were able in short order to agree to a slightly modified return to work plan with further input from the applicant’s doctor with the result the applicant returned to work within three weeks.

39In summary, it is clear the applicant was reluctant to return to work when presented with the respondent’s initial return to work plan. However, I find the respondent’s proposed plan was reasonable. It was based on the medical documentation provided by the applicant to the respondent’s disability carrier identifying her physical abilities and restrictions. The accommodation process adopted by the respondent allowed the applicant to decline to accept the proposed return to work plan and to challenge it through an appeals process. The accommodation process that was followed did lead to a quick and successful return to the workplace. Consequently, I find that the respondent met its substantive and procedural duty to accommodate the applicant

40For all of these reasons the Application is dismissed.