GSB#2010-1252

UNION#2010-0217-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Andrew)

Union

• and -

The Crown in Right of Ontario (Niagara Parks Commission)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Ian Campbell Fasken Martineau DuMoulin LLP Counsel

HEARING

September 11, 2014; April 29, May 27,September 10, December 8, 2015

Decision

1Ms. Yvonne Andrew had been employed as a seasonal worker by the Niagara Parks Commission (NPC) since 1996. When the 2010 season began Ms. Andrew was not reinstated to her seasonal position involving golf course maintenance and mowing which she had performed in 2009 and during several seasons before that beginning in the 2006 season.

2It was the Union’s position on her behalf that the failure to reinstate her to her regular position and duties in the 2010 golf season constituted a breach of her employment rights to be accommodated and a violation of her human rights pursuant to the Human Rights Code and was discrimination on the basis of her disabilities and/or gender.

3It was the Employer’s position that Ms. Andrew’s disabilities had been accommodated for many seasons beginning as early as 2003 and that medical information outlining restrictions on her ability to perform various tasks was such that she was no longer capable without significant risk to her health of performing the duties she had previously performed. Further, there was no position available on a consistent basis within her restrictions which she would be capable of performing going forward. In the circumstances, it was the Employer’s position that the Grievor was no longer capable of performing the essential duties of the position she had previously occupied. With respect to the allegations concerning gender discrimination, it was the Employer’s position that they were totally unfounded.

4Although her employment with the Niagara Parks Commission as a Golf Course Technician was, in effect, terminated, she did not suffer any direct any financial loss. When the Workers Compensation Board determined that she had a permanent disability impeding her ability to earn income at the level she had in the past, she was provided with training for alternative work outside the Niagara Parks Commission together with a net economic loss award to supplement her earnings. Nonetheless, Ms. Andrew had enjoyed her work at the Niagara Parks Commission and felt that, notwithstanding her medical issues, that she was capable of carrying on the same duties she had performed as a Golf Course Technician in 2009 and would have done so had she been appropriately accommodated. Accordingly, she seeks damages for the alleged violation of her human rights and in particular, the injury to her self-esteem and psychological wellbeing as a result of the Employer’s actions. There was no question that she had been a dedicated and good worker during her tenure with the Employer and had lost no significant work time as a result of her medical issues in the past. Indeed, as a dedicated and good employee she was prepared and sought to continue to perform the modified duties she had performed throughout the 2009 season. As in the past, she was prepared to continue that work notwithstanding any pain she might suffer while performing those duties. On a personal note, one has to admire her tenacity and dedication during the years she worked for the Commission while suffering from significant pain from time to time in that work.

5It is also worthwhile to note that there was no argument made by the Union or Ms. Andrew that there was another position within the Commission whether on the golf course or otherwise which would have been suitable for her given the nature of her medical restrictions. It was, however, the Union’s position that she had been and continued to be capable of performing the duties of a Golf Course Technician as previously modified and which she had performed throughout the entire 2009 season without incident or absenteeism to speak of. Rather Ms. Andrew ought to have been permitted to continue to perform those same duties during the 2010 golfing season and thereafter.

THE BACKGROUND AND DISCUSSION

6Ms. Andrew, the Grievor, began her experience with the Niagara Parks Commission in or about 1996 when she was employed as a Gardener/Labourer. In the initial several seasons of her employment she was mostly assigned to tending gardens.

7In September 2003 while using an herbicide backpack sprayer Ms. Andrew suffered an injury resulting in pain to her back, neck and shoulders. For this she submitted a claim and received a loss of earnings award from the WSIB for the very few days she lost from work at that time. With few restrictions, most involving the use of the backpack spray unit, she continued with her gardening duties to the end of the 2005 season. However in 2006 she requested and was granted a transfer to the position of Golf Course Technician as a Labourer 3/4. She was then assigned to act in that capacity at the Employer’s Whirlpool Golf Course.

8Although there are a myriad of duties relevant to that position, most of the responsibilities are labour intensive involving maintenance of the golf course itself. Broadly speaking those duties entail greens, tees, fairways, rough, slopes and surrounds, and raking sand traps on a rotating basis. The maintenance of fairways, greens and tees as well as the maintenance of sand traps most often involve the operation of mowing equipment and/or mechanical tractors upon which the worker is seated while operating the equipment.

9During the 2006 season while Ms. Andrew performed her duties as a Golf Course Technician, there were no reports of incidents involving injury and she lost little or no time from work as a result of any disability or handicap. However, in 2007, Ms. Andrew reported an incident resulting in pain and numbness in her thumb, arm and upper back due to vibration from operating the “Tri-King lawn mower”. Although no formal claim was filed, WSIB reports were completed by Ms. Andrew indicating that the problem first began in early June of 2007 at which time anti-vibration gloves were purchased to absorb some of the vibration. When in September the problem seemed to have continued, the Employer accommodated Ms. Andrew by removing her from assignments to the Tri-King machines due to vibration issues. She would continue to perform her other duties including operating the Triplex mowers which were used for mowing greens, tees and collars. In fact, the Tri-King mowers, although not disposed of, were not used again after the 2007 golf season on the Whirlpool course.

10The accommodation granted to Ms. Andrew with respect to the Tri-King mower was reported to the WSIB in September 2007. Although there was no loss claim filed at that time, the WSIB requested a physical demands information form from the Employer. This was completed by Mr. McQuillan, the Grievor’s supervisor, on or about October 19, 2007. The form described the duties normally performed by a Golf Course Technician such as Ms. Andrew as well as the amount of time devoted to the various tasks. Included in that form was a list of “additional considerations for injury risk” which Mr. McQuillan completed with respect to Ms. Andrew herself taking into consideration concerns previously raised by her or identified in medical reports provided by her with respect to the performance of her various duties. Many of these were identified on the form including risks to Ms. Andrew’s shoulder, neck, elbow, forearm, wrist and/or hand, however, the most notable of these were those affecting Ms. Andrew’s back. Here, Mr. McQuillan placed an X in the box for “whole body vibration (e.g. on a vibrating machine platform or a vehicle driven over uneven surfaces”. That was not a doctor’s medical report but simply the supervisor’s understanding from Ms. Andrew’s complaints. That report was completed at or near the end of the 2007 golf course season.

11Ms. Andrew, in the off season, had typically worked at other endeavours. It was perhaps those other occupations, in particular her wish to continue waitressing as she had in the past, which led to further medical visits and a couple of significant medical reports in early 2008. Some of those reports were produced for this proceeding but were not provided to NPC at the time they were produced. Most, if not all were in Ms. Andrew’s WSIB file.

12On January 9, 2008 Dr. Fulton reported to Ms. Andrew’s family physician concerning an examination he performed on January 2nd. There was an extensive list of issues reported throughout her body from her head to and including her right foot. That report while it identifies a myriad of physical impairments was not prepared for employment purposes per se and therefore does not identify specific restrictions upon her abilities except to note in passing Dr. Fulton’s information that “work has been modified. She will not have to return to vibrating machinery”. Presumably, Dr. Fulton was not aware that the Grievor had continued to work on mowers other than the Tri-King on the golf course which also produced varying degrees of vibration. In any event, he treated Ms. Andrew insofar as he was able and strongly recommended her to return to Dr. Fraser who he identified as “the only individual I know who can satisfactorily treat the multiple cervical somatic dysfunctions (C3-C4 etc.), the T3 costo-vertebral syndrome”. He notes that, although Ms. Andrew was reluctant to “see practioners who have seen her in the past because they have not been able to fix her”, he went on to conclude that:

Again, I would strongly recommend that she see Dr. D.M. Fraser. He might be able to explain to her and certainly he will be able to document his osteopathic medicine delineating the current reality…she now begins to walk into a different land. I do not know what the future will bring.”

13The Grievor did see Dr. Fraser shortly thereafter. He provided a report to the Grievor’s family doctor, Dr. Nash, dated February 19th. That report references the Grievor’s initial WSIB claim and injury of September 17, 2003 while she worked as a gardener. He reports in addition his examination and assessment on February 18, 2008. On this occasion he does not refer to the 2003 injury per se at which time the Grievor had received loss of earnings from the WSIB. Rather, Dr. Fraser reported the following:

She upset her body on a vibrating vehicle at work. She developed headaches, pain her low back and numbness in her left forearm. She also had problems with right ankle. The machine vibration also affected her upper chest and back.

14The doctor then went on to identify from his physical examination seven specific issues for which he provided a diagnosis of five different problems. Again, the assessment did not otherwise specifically address work related issues or restrictions.

15In the 2008 season, not only was Ms. Andrew not assigned to work on the Tri-King mowers they were effectively taken out of operation before the season began. Notwithstanding that, the Grievor’s supervisor, Mr. McQuillan reported the following in his evidence regarding 2008:

Throughout the 2008 season, Ms. Andrew reported being in discomfort on a regular basis. We addressed each issue as it came up. When she complained of issues with raking, we researched and then purchased special ergonomic rakes that were supposed to reduce strain on her body. Unfortunately, Ms. Andrew continued to experience issues while raking. This resulting in her no longer being assigned to perform raking related tasks. When she reported issues with vibration when operating certain of the Triplex mowers, we identified the one machine she was most comfortable with and ensured that she was always able to use that machine.

16Ms. Andrew herself did not dispute that she had issues with those tasks. However, she expressed concern that her supervisor had responded inappropriately to her when she first complained of pain and sought a switch of the seats from one Triplex mower to another to accommodate her discomfort. Be that as it may, the seats were ultimately switched to Ms. Andrew’s satisfaction. She was thereafter able to continue her duties on the Triplex mower.

17In the meantime, Ms. Andrew sought with the assistance of the Employer to revive her 2003 WSIB claim so that she could receive coverage for some of the physiotherapy that she had been receiving or was to receive. Perhaps in response to that request Ms. Andrew was assessed by Dr. Fraser on September 25, 2008 at which time he prepared and provided a Function Abilities Form (FAF) identifying most of Ms. Andrew’s restrictions as follows:

1. Limited walking
2. No lifting – floor to waist (5 to 10 kilograms)
3. No lifting - waist to shoulder (other – not specified)
4. No above shoulder lifting
5. Limited use of both hands for gripping
6. No exposure to vibration – whole body

18The doctor also specifically identified equipment the Grievor was not to use including for instance trimmers and/or backpack sprayers. Additionally, walking was to be limited and/or intermittent. This was the first significant medical report received by the employer since 2003 which specifically set out a full range of issues and, more importantly, restrictions.

19Shortly thereafter, Mr. McQuillan reviewed the tasks normally performed by employees in the Grievor’s position on the golf course taking into consideration the restrictions identified in this recent FAF for Ms. Andrew. The analysis was provided to Mr. Brian Moore the Director of Golf Operations for Niagara Parks. On October 1, 2008, in an e-mail to Ms. Letitia (Tish) McLay, the Work Re-integration Coordinator for NPC, and also a registered nurse, he commented on the analysis provided by Mr. McQuillan as follows:

This chart makes it quite obvious she is not capable of regularly doing the work normally assigned to a labourer 3/4.

I hope this helps…Andrew does need some direction on this…as you can see, we are running out of work for her…he will do his best to keep her busy…but we will need to meet at some point very soon to discuss her abilities and get some direction and agreement as to what she can be assigned to do.

Please let me know the next move.

20It is interesting that between the October 1st email and the earlier September 25th FAF identifying the restriction, “no exposure to vibration”, Ms. Andrew had again experienced and reported pain from vibration when on September 30th she was operating the Sand-Pro machine. It is a seated machine which grooms sandtraps.

21In consultation with Ms. McLay, Mr. McQuillan decided that Ms. Andrew would no longer be assigned to that piece of equipment. It was Ms. Andrew’s recollection that the Sand-Pro machine which caused her difficulty in 2008 had been on loan from another golf course. Consequently, it was her evidence “the next season I resumed use of a different Sand-Pro machine and had no medical or physical difficulty with it.”

22In any event, the Employer’s broader concerns prompted Ms. McLay to contact the WSIB for guidance. Ms. Sharon Gibbons a Return to Work Specialist with the WSIB took responsibility for the matter and, in a memo to the WSIB Claims Department on October 30, 2005, instigated an investigation to further assess an appropriate course of action. She noted that there had been no significant time lost from work for WSIB purposes since the original claim in 2003. In the circumstances she noted that any ongoing restrictions with respect to the Grievor’s ability to work had not been mandated by the WSIB but that the Employer had nonetheless accommodated the worker as and when she felt unable to perform various tasks. Further, she noted that there were numerous reports from Dr. Fulton on file but that there was no claim pending or active with respect to Ms. Andrew. Since the golf course operated seasonally, the WSIB investigation did not begin until 2009.

23There were a number of reports medical and otherwise regarding Ms. Andrew in 2009:

1. On January 16, 2009 Dr. Nash the Grievor’s family doctor prepared a WSIB Continuity Report respecting ongoing problems from 2007 which involved the vibration affecting Ms. Andrew’s spine and shoulders etc. Since there was no FAF completed at that time Dr. Nash signified a number of limitations on this form respecting Ms. Andrew’s continuing difficulties. These included lifting, bending/twisting, use of upper extremities (weakness), operating heavy equipment (vibrations). In this section the doctor added the following comments:

Symptoms vary. They do flare up repeatedly. Patient cannot use vibrating equipment – symptoms always recur.

2. In May of 2009 a WSIB claims investigator attended at the golf course. During her attendance she interviewed the Grievor, Ms. Andrew, several of her co-workers as well as Mr. McQuillan their supervisor. I do not propose to outline the details of that report except to note that the issue being investigated for WSIB purposes was stated to be the continuity of the claim from September 2003 to satisfy an existing request for entitlement to health care benefits by Ms. Andrew. There was no continuing lost time claimed and indeed, Ms. Andrew had lost little time from work and made no documented claims since the 2003 claim for lost time from work due to her disabilities. Notwithstanding that, the investigator reported the following additional comments at the conclusion of her interview notes with Ms. Andrew:

To date she continues to have significant ongoing problems with her mid to upper back area, neck, front and back, left and right shoulder, left and right hip, right foot and ankle, left and right hand, arms and some on and off problems with her knees. According to her doctors, everything is connected and knees and ankles are all related to hip condition.

3. In addition to Dr. Nash’s January 2009 report referred to earlier, there was a subsequent report identified as a Physician’s Special Report prepared by Dr. Nash. That report is dated July 10, 2009 and it appears that there was a subsequent note added by Dr. Nash on October 23, 2009. It appears from the document that the report was specifically requested by S. McIlvean the WSIB Case Manager who was ultimately responsible and prepared the January 28, 2010 report referring Ms. Andrew for a Non-Economic Loss Benefit Review. Dr. Nash in this report identified only the Grievor’s shoulder pain with any heavy work involving her right arm. The report notes that “at this moment there is no problem because the patient has not used Triplex/Tri-King since late summer of 2007. Good function if no repeat work injury” and finally on October 23 she added a note suggesting Ms. Andrew “not use any particular equipment – simple or complex – that does not stress her right shoulder and arm”. The reference to the Triplex machine used on and around greens was new to medical reports and an addition to the grievor’s problems with the Tri-King from 2007.

4. On November 3, 2009 Dr. Fraser again saw Ms. Andrew and provided an updated medical which was almost identical to that he had provided on February 19, 2008 except that his physical exam on this occasion included the addition of two further orthopedic problems. He also added in his description of problems she currently identified that “her left shoulder is still a problem”.

24During the 2009 operating season, there were few if any documented issues concerning Ms. Andrew’s day to day work. There was conflicting evidence from Ms. Andrew and Mr. McQuillan concerning some undocumented work issues. There was little disagreement that Ms. Andrew was primarily assigned to mowing fairways on a Toro 5400 piece of equipment and that initially she was provided with work on the Triplex mower which normally operates to cut greens, collars, tees and approaches to the greens. Although Ms. Andrew did not agree with Mr. McQuillan’s characterization of their exchange concerning her operation of a Toro 5400 mower, she did not disagree that early in the season she complained of vibration in the Toro machine she was then using in particular with respect to foot vibration. Regardless of the characterization of Ms. Andrew’s complaint and the extent to which the vibration was causing her issues, Mr. McQuillan felt it significant enough to assign her to the other of the two Toro’s since it generated the lesser vibration. It was also noted that prior efforts had been made to reduce vibration on both machines by adjusting the seats and placing foam inserts on the foot pedals used to control the equipment.

25Still in 2009 as noted earlier, Ms. Andrew was initially assigned to operate the Triplex mowers and in particular that mower which she favoured from the 2008 season, however, Mr. McQuillan decided shortly after the season began to no longer assign her to the Triplex mowers. It was his evidence that when using that equipment she was able to cut greens and tees, that is flat surfaces, without problems but complained when cutting collars and approaches where the terrain was not even and caused vibration. As I understood this issue it was not vibration per se from the equipment but the uneven terrain causing a bumpy ride which was troublesome. Additionally, the operation of the Triplex mowers involved the collection of grass cuttings into a “bin”. When dumping of the bin proved problematic to Ms. Andrew because of her shoulder issues, Mr. McQuillan established a protocol with her that bins be emptied only when they were a quarter to one-half full. Regardless of these adjustments, whether or not Ms. Andrew recognized and/or appreciated the reason for Mr. McQuillan’s subsequent decision, he longer assigned her to the Triplex machines due to the discomfort she had expressed to him while performing those operations. That she had difficulty with work on the Triplex machines was confirmed in Dr. Nash’s reports from 2008 identified earlier.

26While no other specific instances were identified by Mr. McQuillan it was his view that Ms. Andrew was becoming more sensitive to vibration since she was now having difficulty with equipment she had used in the past without complaint. Be that as it may, there was no other significant work issue documented relevant to this matter during the 2009 season save for an incidental issue in September or October of that season when the Grievor reported pain and discomfort when manually brushing away dew from a green, a task identified as “dew whipping”.

27There was one further significant document produced from 2009. It was a memo to the WSIB file by Ms. McIlvean the Claim Manager who ultimately wrote the report respecting Ms. Andrew’s status with the WSIB. The memo is a record of a telephone call received by Ms. McIlvean from Ms. Andrew on December 7, 2009. Given the substance of the memo which is recorded below, I expect it was motivated by Ms. Andrew’s request that her medical benefits be continued pursuant to her original claim so that physiotherapy and other interventions could continue to be covered by the Board. That memo reads as follows:

I received a call from Yvonne Andrew on 07 December 2009. She questioned whether updated medical was received.

She reported ongoing pain and problems with her neck, lower back, left arm, right ankle and shoulders. Problems flare up with use of vibrating vehicle.

Noted entitlement in this claim is for upper back/neck and shoulders.

Ms. Andrew reports that she just wants to get better.

Advised that I would review her claim for possible medical interventions with the NC and get back to her

28Finally, on January 28, 2010 Ms. McIlvean, the Case Manager responsible for Ms. Andrew’s WSIB claim, wrote to her concerning the status of her entitlement. This letter was copied to the Employer. Since it precipitated in large measure the matter now before me I have reproduced the substance of that letter below:

I am writing to advise you of the current status of entitlement in your claim.

In September 2003 you developed pain in your back, neck and shoulders which you related to your regular working duties. Proof of accident was established and entitlement was accepted. Loss of earning (LOE) benefits were supported from September 18-23, 2003 at which time you returned to your regular duties without spraying.

To date you have continued to perform work with no further lost time being reported. However ongoing complaints of pain are noted and confirmed with co-worker statements obtained by the Investigator.

In reviewing your claim with a member of our medical staff it has been confirmed that is evidence of a permanent impairment for your back, neck and right shoulder injuries. Therefore your claim will be referred for a non-economic loss (NEL) benefit review.

Noting the acceptance of these permanent impairments, you are to avoid use of vibrating machinery.

If you do not understand the reasons for the decision, or if you do not agree with the conclusions reached please call me. I would be pleased to discuss your concerns.

I also wish to inform you that the Workplace Safety and Insurance Act (the Act) imposes time limits on appeals. If you plan to appeal the decision, the Act requires that you notify me in writing by Wednesday, July 28, 2010.

29The conclusion that there was permanent as opposed to temporary impairment of the Grievor’s back, neck and right shoulder as well as the now permanent restriction of the use of vibrating machinery led to an examination or review of the machines and job duties at the golf course as they related to Ms. Andrew’s now permanent impairments and restrictions. Mr. McQuillan undertook the review in February and on February 24th produced a report which concluded in effect that the duties of the Golf Course Technician which primarily involved the use of motorized equipment on a daily basis were contra-indicated with Ms. Andrew’s restriction involving vibrating machinery. In the introduction to his review of the various pieces of equipment and tasks Mr. McQuillan made the following general comment:

Machines used to maintain the golf course are very specialized and are engineered and manufactured with small, load displacement engines. These motors produce tremendous rpms to attain the power necessary to operate the various pieces of equipment properly. The high rpms cause a significant amount of vibration. This characteristic is consistent with virtually all of the machines Yvonne would be asked to operate as part of her duties at the Whirlpool Golf Course.

30I do not propose to set out Mr. McQuillan’s analysis in detail with respect to each piece of equipment he reviewed. I was satisfied with the evidence both from the Employer and Ms. Andrew as well as common sense that each piece of mowing equipment would generate some degree of vibration not only as a result of the nature of the motors within the machinery but also the moving parts and other pieces within the machinery which rotate or cycle in some way to cut the grass or groom the sand or perform whatever other tasks the equipment is being used to perform. Additionally, the terrain itself on which the equipment operates is not smooth like asphalt or concrete; rather, it is comprised of lawn or fairways which are rarely perfectly flat or even. Additionally, the rough adjacent to the fairways and approaches to the greens as well as sand traps are deliberately uneven. The only terrain on the course which is relatively flat or even are the greens themselves and even they, as any golfer will attest, are rarely even.

31Although in her evidence Ms. Andrew did not deny receiving the January 28th letter from the WSIB stating that she had a permanent restriction that she was to “avoid using vibrating machinery”, she stated that she did not especially notice that reference. Furthermore, she was of the view that it meant machinery with serious vibrations that might cause problems for her back, neck and right shoulder. More particularly, her evidence was that she did not think it applied to machinery with lesser vibrations such as the Toro 5400 that she “used throughout 2009 or the Triplex machine I used in the latter half of 2008 without any problem from either of them”.

32Notwithstanding that evidence, she acknowledged that she called Ms. McLay, the Employer’s nurse, and requested a Functional Abilities Form so that she might have it completed by one of her doctors. In fact, a Functional Abilities Form was completed by Dr. Nash on March 3, 2010 and indicated that an assessment was performed with Ms. Andrew on that day. The report was similar but not identical to that she had completed on January 16, 2009 referred to earlier in this award and which cautioned against the use of vibrating equipment. That report prepared before the beginning of the 2009 golf season followed the FAF prepared by Dr. Fraser the orthopedic surgeon who had seen Ms. Andrew on September 25, 2008 near the end of the fall season. Again as indicated earlier in this award, Dr. Fraser had indicated a restriction for Ms. Andrew from exposure to vibration with respect to her whole body.

33In any event, the March 3, 2010 FAF by Dr. Nash reiterated the restriction regarding exposure to vibration for Ms. Andrew’s full body and added a similar restriction with respect to her feet. In a handwritten note she added that “patient has degenerative spinal disease neck and lumbar spine. The symptoms vary and they do recur. This will be ongoing.”

34Ms. McLay contacted the Grievor on or about March 12th and asked if she had an FAF filled out and requested a copy for the Employer. Ms. Andrew in her evidence agreed that she did not produce a copy of the March 3rd FAF for the Employer although she shared it with a union representative. She also acknowledged that she did not produce it for the Employer since she planned to take it back to her physician to have it modified to recognize that she could continue to operate some of the equipment with lesser vibrations. Clearly she did not agree with the outright restriction and felt she was nonetheless capable of operating mowers with less vibration such as that Toro 5400 mower which she had tolerated through the 2009 season. As it happened, Ms. Andrew was unable to secure from Dr. Nash a revised FAF to meet her wishes. Furthermore, Dr. Fraser the orthopedic surgeon was unavailable due to medical issues of his own. She was unable to secure and therefore, has not produced, even to the date of these proceedings a FAF to support her view of the vibration restriction. However it appears that she ultimately secured from Dr. Fraser a note dated April 19, 2010 identifying her original injury from 2003. That note included the following final paragraph:

Since the original injury, the machine involved, Tri-King, has been retired and she no longer uses this source of vibration. She has been able to do her job with equipment with a different vibration frequency without aggravation of her problems since 2007.

35Ms. Andrew could not recall whether or not she was seen by Dr. Fraser or if he performed any examination whatsoever at the time she received this letter. It was forwarded by the Union to the Employer on or about April 23, 2010. However, much had transpired before that date.

36On March 16, 2010 Ms. Sharon Gibbons the Return to Work Specialist from the WSIB conducted a meeting at the Employer’s premises. According to her own memo of the meeting the goal was to find work comparable in nature and earnings for Ms. Andrew at or before April 12th, the date the golf course planned to reopen for the new season. Present at the meeting besides Ms. Gibbons and Ms. Andrew were Ms. McLay, Mr. Bill Rudd, the Local Union President, and members of management including Mr. Moore, the Director of Niagara Parks Golf Course and Mr. McQuillan.

37Ms. Gibbons “intervention memo” of the meeting is set up with a number of columns the first being the return to work obstacle, the second being the solution, the third being the identity of who was to provide or seek the solution and the fourth to be a target date. Ms. Gibbons identified the initial obstacle in the following terms “worker is to be rated for a permanent impairment for her shoulders, neck and back on 29 March 2010 (this was the date arranged by WSIB itself to have its physician examine and rate the extent of the impairment). Worker is a seasonal worker and has not recovered to her pre-accident level. Worker’s ability to perform the labouring duties has gradually declined since date of injury. Worker is unable to use any tools which have motion/vibrate as this causes an increase in symptoms”. That is the initial statement of issue or obstacle to recovery identified by Ms. Gibbons. Adjacent to that in the solution column is the Employer’s position regarding that issue.

38The Employer’s position was that Ms. Andrew would be unable to return to her 2009 job as a Golf Course Technician/Labourer. NPC undertook to review available positions which might meet Ms. Andrew’s restrictions and to present those alternatives to her at a subsequent meeting on March 24th.

39Again under the obstacle column, Ms. Andrew expressed her position, contrary to Ms. Gibbons’ view, that “she can use some equipment but not all”. In response to that Ms. Gibbons recorded the Employer’s response as follows:

Employer is not in agreement with this given the letter of January 28/2010 from Case Manager indicating no use of vibratory equipment.

40Again in the solution column Ms. Gibbons noted “restrictions from Case Manager preclude use of equipment and essential duties of the job require use of the equipment. Employer to review for a different position”. The target date of March 24th was repeated.

41In addition to the foregoing, the parties discussed the Labour Market Review (LMR) process in the event a suitable position with the Employer could not be found. A target date of April 12th was set for a referral to LMR in the event that was necessary.

42Ms. McLay the Reintegration Coordinator for NPC also prepared a summary of that meeting as follows:

Yvonne is a seasonal Golf Course Technician. WSIB has determined that Yvonne has permanent restrictions for her back, neck and right shoulder to avoid the use of vibrating machinery. The job tasks were discussed, and it was determined that because Yvonne is unable to work with any vibrating equipment, she is unable to perform the essential duties of the position as a Seasonal Golf Course Technician.

Where Do We Go From Here

Two options will be further examined.

1. HR will compile a list of all available seasonal positions, and this will be reviewed for suitability

2. Labour market re-entry.

A meeting will be set for one week from today to review the above options.

Sharon Gibbons made it very clear that if there has not been a determination by 5/Apr/10, that WSIB would be moving forward with LMR.

43On March 24th the second meeting was held as scheduled to pursue the matters which were listed for continuation on March 16th, that is, positions with NPC as alternatives to the Golf Course Technician position and for which it was believed Ms. Andrew would be capable. The WSIB representative was not present at this meeting. Aside from Ms. McLay there were members of management present and, together with Ms. Andrew, two union representatives, Mr. Bill Rudd the President of the Local who had attended the March 16th meeting as well as Ms. Judy Robertson, an OPSEU staff representative.

44Among the positions which NPC was looking to fill were two supervisory positions in food services, a cook in that department as well as four to five seasonal gardener positions within the Parks Department. There was no dispute that Ms. Andrew was not qualified for the food services positions. On the other hand NPC expressed the view that it would like to accommodate Ms. Andrew in one of the seasonal gardener positions by removing two of the tasks from the job description which would eliminate the use of vibratory machinery from her job tasks. Ms. Robertson, the OPSEU representative, who had not participated in the March 16th meeting sought to have NPC consider Ms. Andrew’s return to the Golf Course Technician position. NPC representatives made it clear that they had discussed that issue in detail at the March 16th meeting. Simply put in Ms. McLay’s notes of the April 24th meeting “NPC is not willing to risk the health of Yvonne by putting her back on a piece of vibratory equipment when we have WSIB medical restrictions against it”.

45Ms. Robertson then addressed the gardener position and suggested that it too was against Ms. Andrew’s limitations. It then became apparent that Ms. Andrew had obtained another FAF from a physician which identified other limitations which would put the gardener position beyond her physical abilities. As it later turned out, the other FAF not yet shared with the employer was the March 3, 2010 report prepared by Dr. Nash. Although there had been indications of other limitations or restrictions on Ms. Andrew’s abilities in earlier medical reports, those limitations had not recently and specifically been identified as permanent as in the case of vibrating machinery. The Employer had not been provided with a copy of the most recent FAF concerning which Ms. Robertson had spoken. In the circumstances the gardener position was left open for her with those modifications suggested to accommodate her vibration restrictions.

46A third meeting was held on April 14th, 2010 concerning which Ms. McLay again made meeting notes which covered most of the exchange until her early departure at approximately 3:30 p.m. Since the second meeting in March when it became apparent that a current FAF was available for Ms. Andrew, which she refused to provide to the employer, Ms. McLay contacted the WSIB and was able to secure a copy from there on or about March 31, 2010. I have provided some of the detail from that FAF earlier in this award. It was that FAF prepared by Dr. Nash dated March 3, 2010 and which Ms. Andrew sought to have revised. However, it was restrictions outlined in that document, aside from the restriction with respect to exposure to vibration, which related to lifting, bending/twisting, as well as pushing and pulling which would interfere with Ms. Andrew’s ability to perform the essential duties of the gardener position. In the circumstances, the Employer believed there was no alternative and sought to discuss the letter provided by WSIB with respect to Labour Market Review which would explore positions outside the Niagara Parks Commission.

47Ms. Andrew and Ms. Robertson challenged that proposition and insisted that the Employer accept Ms. Andrew’s view that she could without risk, be exposed to some vibration in the performance of her duties. Furthermore, they explained that the March 3rd FAF from Dr. Nash was not provided since Ms. Andrew was seeking to have it modified to confirm that she could operate some vibrating equipment of lower frequency than the Tri-King which had started the problem in 2007. As pointed out previously, no FAF authorizing vibrations of a lower frequency for Ms. Andrew has been provided up to the date of these proceedings.

48Earlier in this award I referred to and quoted in part the note from Dr. Fraser dated April 19, 2010 which was faxed to Ms. McLay on or about April 23, 2010. As indicated earlier, that was not an FAF nor was the Grievor was able to provide a revised FAF from her personal physician, Dr. Nash, who had prepared the March 3rd current document. In the meantime, the WSIB had progressed with the process involving a non-economic loss evaluation for Ms. Andrew. On July 9th, 2010 an evaluation prepared by a Registered Nurse on behalf of the WSIB rated Ms. Yvonne Andrew “45% whole person impairment”. In preparing that evaluation the nurse reviewed a medical assessment of the Grievor performed on March 29, 2010 by a physician retained by the WSIB for this purpose. Included in his assessment and in the ultimate evaluation were the historic medical documents on file with the WSIB in addition to this physician’s personal examination and assessment of the Grievor’s difficulties. That assessment confirmed the permanent impairment relied on by WSIB to rate Ms. Andrew at 45% whole person impairment.

49Finally, in July and August of 2011 Ms. Andrew had occasion again to seek the services of Dr. Fulton. By this point in time Ms. Andrew had not worked with Niagara Parks Commission since the fall of 2009. Dr. Fulton reported to the Grievor’s personal physician, Dr. Nash, that Ms. Andrew had experienced some measure of easement in her discomfort, most significantly in her shoulder. On the other hand, having completed his assessment with her together with some level of intervention Dr. Fulton went on to make the following comment concerning vibration:

I discussed vibration and told Ms. Andrew that she should not, under any circumstances, become involved in a workplace situation that presents her with repetitive vibration- vibration that would influence her shoulder or vibration that would influence the right foot and ankle. WSIB should be cognizant of this restriction.

50The foregoing constitutes a relatively detailed review of the evidence concerning Ms. Andrew and her status as at the beginning of the 2010 golf season and again after 1 ½ years without golf course work in the summer of 2011.

51In addition to that evidence concerning her duties and medical status, there was evidence relevant to the assertion that the Employer had discriminated against her on the basis of gender. In particular, it was suggested that a male employee in the same classification as Ms. Andrew had received better or more accommodating treatment than Ms. Andrew. Furthermore, it was asserted on behalf of Ms. Andrew that the Employer had hired no permanent female workers to the golf course in recent years. On the basis of those assertions it was the Union’s position that the Employer had discriminated against Ms. Andrew as a female worker.

52I have considered these latter assertions but I am not satisfied that there was sufficient evidence to support either of them. With respect to the differential treatment of the male worker, Ms. Andrew did not know the specific nature of his restrictions. She did not know that his only restriction had to do with his shoulder whereas that for Ms. Andrew related to her whole body as well as one regarding her feet. Notwithstanding that there was a restriction with respect to vibration concerning the male employee, he was able to perform most of the tasks or duties on the golf course including operating most of the equipment with some instructions as to how to perform those tasks and for how long. Since his restriction was related to one shoulder only as opposed to his whole body there were only a few tasks and pieces of equipment that he could not perform or operate. On the other hand, the duties or tasks which Ms. Andrew herself felt capable of performing limited her work to only a couple of pieces of mowing equipment. Accordingly, I was not satisfied that the comparison was gender based as opposed to medically based.

53With respect to the assertion that the Employer discriminated against the hiring of female workers for the golf course, the evidence did not support that allegation. Rather, although Ms. Andrew might have been the only permanent female Golf Course Technician during 2007 and 2008, another female had been a permanent employee until at least 2006. Furthermore, in recent years the golf course had reduced its permanent staff dramatically to the extent that no new permanent staff, male or female, were brought on to that course until sometime after the 2010 golf season. More importantly, the golf course did employ seasonal part-time students during the summer months while the Grievor was on staff and these included usually two or three females each summer. Again the evidence did not support the assertion or allegation that the Employer discriminated against female workers and, in particular, against Ms. Andrew herself on the basis of gender.

THE DECISION

54Notwithstanding that Ms. Andrew must be given credit for continuing to work for several years through her pain and discomfort at what is undoubtedly an outdoor labour intensive occupation, I am unable to find that the Employer failed to respond adequately to accommodate her difficulties on the golf course through the several seasons leading up to 2010. Additionally, while Ms. Andrew was no doubt dismayed when the Employer decided that she would not be reassigned to the Golf Course Technician position for the 2010 season, it is my finding that, given the nature of her various restrictions and, in particular, that respecting vibration, she was no longer capable of performing the essential duties of the Golf Course Technician position without continued pain and discomfort and risk to her state of health.

55I am especially satisfied and find that the restriction with respect to vibrating equipment on the golf course did not distinguish between machines of greater and lesser vibration. The physician’s assessing the grievor medically and the WSIB personnel were well aware of the extent of Ms. Andrew’s impairments, the nature of the equipment on the course and the risks that operating the equipment posed to her health. There was no reliable medical opinion to the contrary.

56No doubt Ms. Andrew was upset at this determination by her employer. She had put in several seasons of work on the golf course without any significant lost time from her duties as a result of her discomfort. She enjoyed her work on the course and performed the duties she undertook in a more than satisfactory manner such that her supervisor, Mr. McQuillan, recommended her for re-employment in the 2010 season. It was not surprising that she felt shock and disappointment when that did not come to pass. Be that as it may, I am satisfied for the reasons which follow that the risk to her health was so significant as to militate against her continuation in the Golf Course Technician position notwithstanding that she was prepared to carry on with those duties with and through her discomfort.

57The original injury in 2003 was attributed by the WSIB to working duties. It occurred while the Grievor was working as a gardener for Niagara Parks Commission (NPC) before she transferred in the 2006 season to her position at the golf course as a Golf Course Technician/Labourer. It was the use of a backpack sprayer at that time which caused Ms. Andrew to develop pain in her back, neck and shoulders. Thereafter, aside from limits on her use of the backpack spray unit, there were no formal restrictions on her work activities.

58It was as early as 2007 during her second golf season at the Whirlpool Course that vibrating mowing equipment aggravated her existing injuries in particular causing numbness and pain in her wrist, hand and fingers. There was no lost time perhaps due to the Employer’s efforts to accommodate Ms. Andrew first by providing anti-vibration gloves after the June complaint and later by removing Ms. Andrew from the operation of the Tri-King mowers later in the season. Thereafter, she was never assigned to that equipment although there was no medical report or Functional Abilities Form detailing that restriction. However, Ms. Andrew agreed with the Employer that she would no longer be assigned to that equipment but could continue using Triplex mowers which were operated on greens, approaches to greens and aprons. Although there was no lost time as a result of the vibration incident, a report reflecting the incident and the agreement was completed by the Grievor and Ms. McLay and filed with the WSIB. This was the first documented concern regarding vibration raised by Ms. Andrew and accommodated by the Employer with respect to the specific machine in question. The Employer did not request nor did it receive any medical report at that time respecting restrictions on the Grievor’s abilities.

59However, that was not the end of Ms. Andrew’s discomfort with respect to her injuries and her ability to perform her job. In fact, she continued to attend on several medical practitioners for physiotherapy, manipulation and the like. While medical reports were generated in 2008 and provided to the Grievor’s personal physician, Dr. Nash, none of these reached the Employer until the fall, that is September of 2008. At that time Ms. Andrew had sought a continuation of her WSIB claim in order to receive coverage for the physiotherapy she had been receiving and/or sought to receive. Continuity reports prepared by Ms. Andrew and Ms. McLay, the Employer’s nurse, were filed with the WSIB. The request instigated a process which resulted in the preparation of a Functional Abilities Form by Dr. Fraser, the orthopedic surgeon who had, following Dr. Fulton’s report, assessed the Grievor in February of 2008 and provided Dr. Nash with a diagnosis at that time . That February 2008 Report did not reach the Employer, however, the FAF (Functional Abilities Form) by Dr. Fraser of September 25, 2008, did. It was that document which triggered the Employer’s concern about the Grievor’s ongoing physical difficulties and the erosion of her ability to perform numerous tasks of her job. That FAF addressed the Grievor’s abilities and restrictions as reported by Dr. Fraser. Among numerous restrictions on her abilities with respect to walking, lifting, working above shoulder level and some limitations on the use of her hands, Dr. Fraser specifically identified a risk to Ms. Andrew’s “full body” with respect to “exposure to vibration”. That FAF did not distinguish among different levels of vibration or pieces of equipment. Further, this was the first medical assessment received by the Employer and identifying vibration as a specific restriction.

60The receipt of that report prompted Mr. Brian Moore, the Director of Golf Operations for the Employer, to ask Mr. McQuillan, the Grievor’s supervisor to provide a brief list of the duties normally assigned to persons in that classification and his personal assessment of Ms. Andrew’s expressed experience and/or complaints in performing those tasks together with a cross reference to the restrictions set out in that FAF from Dr. Fraser. Almost coincidentally Ms. Andrew complained of vibration while operating the Sand-Pro machine which was operated in a seated position and used to groom the sand traps on the course. While Ms. Andrew felt she could carry on with less discomfort using anti-vibration gloves, Mr. McQuillan removed her from the task and prepared a Workplace Incident Report. When he prepared the list for Mr. Moore, of the several mowers and other seated equipment she had used in the past, there were none which had not caused her some difficulty in performing either due to vibration or one of her other physical problems. Further, Mr. McQuillan no longer assigned her to perform several of the manual tasks with which she had expressed difficulty in the past. Finally, there were a number of other tasks to which Mr. McQuillan did not regularly assign her due to the nature of the physical demands or vibration which he believed would be most likely to cause her difficulty. In brief, by the time Mr. McQuillan prepared that report for Mr. Moore, he had stopped assigning her to many of the usual tasks of a Golf Course Technician.

61The key pieces of equipment relevant to the matter before me, are the Toro 5400 used primarily for fairway mowing and the Triplex mowers used to cut tees, greens, collars and approaches. As to the Triplex mowers, the seat on one of the two machines created too much vibration so she was assigned to operate the other with less difficulty. However, I am satisfied and find that even this was problematic for Ms. Andrew when cutting approaches and collars. Furthermore, although she could cut greens on this machine with less vibration problems, she was unable to empty a full bin because of pain in her arm and shoulder. Mr. McQuillan took her completely off this equipment near the start of the 2009 season.

62With respect to the Toro 5400 machines used for mowing fairways, Ms. Andrew had complained from time to time about vibration from those machines through her feet and into her legs. Notwithstanding that, it was one of these machines that Ms. Andrew had continued to operate previously and throughout the 2009 golf season. Further, it was this piece of equipment that Ms. Andrew felt she ought to have been allowed to continue to operate in 2010 notwithstanding her various restrictions including vibration.

63Mr. Brewin counsel for the Union took issue with Mr. Moore’s email to Ms. McLay asking for guidance given the concerns that were raised about her ability to perform the various duties. In particular Mr. Brewin was concerned that the Employer had, in that email as early as October 2008, pre-determined that Ms. Andrew could no longer do the job as evidenced by the following comment:

This chart makes it quite obvious she is not capable of regularly doing the work normally assigned to a Labourer 3/4.

64However, that comment must be read in context of the entire message and, in particular, the final paragraph which reads as follows:

I hope this helps...Andrew does need some direction on this…as you can see, we are running out of work for her…he will do his best to keep her busy…but we will need to meet at some point very soon to discuss her abilities and get some direction and agreement as to what she can be assigned to do.”

65I do not see anything untoward in Mr. Moore’s expression of concern. Indeed, rather than taking action to suspend Ms. Andrew from those duties she seemed able to do albeit with some difficulty, the Employer kept her occupied throughout the entire 2009 season.

66In the meantime, in accordance with Mr. Moore’s concerns, Ms. McLay the NPC nurse pursued the issue further with the Workplace Safety and Insurance Board. She started that process in a meeting with Ms. Gibbons a Return to Work Specialist with the WSIB. The meeting took place on October 29th, 2008. Ms. Gibbons report to her claims department in reference to the original 2003. The purpose of the meeting was reported as the Employer asking for guidance with respect to Ms. Andrew and restrictions on her ability to perform the normal duties of the job of Labourer 3/4. Ms. Gibbons noted that the file or claim was not currently active nor had any ongoing entitlement been awarded. However there were numerous reports on file including that from Dr. Fulton in 2008 as well as Dr. Fraser’s FAF form from 25 September 2008. Ms. Gibbons then instigated a WSIB investigation which could not begin until the golf course was up and running in 2009.

67The WSIB continued its investigation in 2009 including interviews at the golf course, preparing internal reports and obtaining additional medical reports from several of Ms. Andrew’s doctors. Included was a January 16, 2009 report from the Grievor’s personal physician, Dr. Nash, which reinforced the FAF by Dr. Fraser from September 25, 2008. In it Dr. Nash added her own comment: “Symptoms vary. They do flare up repeatedly. Patient cannot use vibrating equipment - symptoms always recur”. The Employer, however, did not receive that Report. In fact, it received no further medical report following Dr. Fraser’s FAF in 2008 until the WSIB completed its reporting letter dated January 28, 2010.

68Notwithstanding Dr. Fraser’s FAF respecting the risks and restrictions regarding vibrations throughout the 2009 season, Mr. McQuillan and the Grievor continued to address vibration issues on a machine by machine basis rather than considering that the restriction might be meant to apply to all vibrating equipment on the course regardless of the nature or degree of the vibration.

69In the circumstances, at the inception of the 2009 golf season Ms. Andrew continued to be assigned work on the Triplex mowing machines to cut tees, greens etc. as well as the Toro 5400 equipment to mow fairways. She believed in retrospect that she had no difficulty whatsoever in performing those duties. She was mistaken in her belief. Although she disagreed somewhat with the details provided by Mr. McQuillan, she acknowledged that at the beginning of the golf season she had been assigned to the Triplex mowers but had soon been taken off those machines so that the balance of the season she operated only the Toro 5400. It was Mr. McQuillan’s evidence that Ms. Andrew had complained that the vibration she had experienced using the Triplex mowers to cut uneven terrain caused her discomfort. Further, because she was having difficulty in emptying the collected grass clippings from the bins, Mr. McQuillan had finally removed her entirely from those duties. It is my view that Mr. McQuillan’s evidence on this matter must be preferred to that of the Grievor. As in the situation involving the Sand-Pro machine in 2008, it is more probable that Ms. Andrew complained of the vibration but was prepared to carry on working the Triplex mowers and tolerate the discomfort. Mr. McQuillan, on the other hand, was reluctant to allow her to carry on in those circumstances and removed her from that equipment.

70With respect to the Toro 5400, Mr. McQuillan reported that Ms. Andrew had suffered foot vibrations through the pedals of that equipment. Earlier efforts had been made to reduce that vibration by applying foam inserts over the pedals, however, one of the machines continued to give Ms. Andrew difficulty in that respect. Accordingly, early in the 2009 golf season Mr. McQuillan ensured that the Grievor was assigned to only that Toro 5400 which provided the least vibration of the two. It was on this machine that Ms. Andrew completed the 2009 golf season acknowledging that there were few if any other duties to which she was assigned throughout the balance that year on the golf course. It was clear in my view, and I find that by the end of the 2009 golf season, Ms. Andrew had suffered on occasion the effects of vibration from every type of machine she operated on the course. At best, she felt she could tolerate the vibration from a couple of individual machines.

71In addition to the foregoing there were three incident reports involving Ms. Andrew during the 2009 season. Two of those did not relate in any way to the disabilities or restrictions Ms. Andrew had been suffering. However, in October Ms. Andrew had been assigned to perform a Dew Whipping function on greens. The activity almost immediately on the first green caused pain in the Grievor’s right shoulder. She was removed from the task and offered access to a medical clinic or hospital. Ms. Andrew refused the offer of medical attention according to Mr. McQuillan’s report “on belief that they could do nothing to alleviate pain”.

72It was Ms. Andrew’s position and that of the Union based on her experience during the 2009 season that she could have continued in 2010 to operate the Toro 5400 machine as she had done throughout 2009 without any lost time and without medical issues. It was Mr. Brewin’s contention that given the Grievor’s experience in 2009 that there was an onus on the Employer to show conclusively that the Grievor was unable to carry on with those duties in 2010 when there was adequate work to perform on the Toro 5400 equipment. Indeed, it was Ms. Andrew’s own view that the medicals cautioning and restricting her activities with respect to vibrating equipment were directed only to the Tri-King mower which she had not operated since the 2007 golf season.

73I have considered those positions in the context of the evidence taken as a whole up to the end of the 2009 golf season. It would appear that both Ms. Andrew herself and the Employer were operating on the assumption that the vibration issue was neither permanent nor broadly restrictive. Mr. McQuillan continued to assign her to mowing and other equipment which he knew to not only generate its own vibration but to be subject to additional vibration due to the uneven and rough terrain on the golf course. Mr. McQuillan attempted to accommodate Ms. Andrew on a piece by piece basis whereas Ms. Andrew was prepared to carry on operating vibrating equipment so long as it did not surpass her pain tolerance or discomfort level. Indeed, the Employer had accommodated Ms. Andrew based only upon her complaints until the FAF from Dr. Fraser was received in the latter part of the 2008 golf season. Thereafter, rather than acting precipitously Mr. McQuillan continued to accommodate Ms. Andrew on a machine by machine basis while the WSIB conducted what turned out to be a lengthy and extensive investigation. It was not until January of 2010 when the Employer received a copy of the WSIB Report to Ms. Andrew concerning her non-economic loss investigation that her impairments were confirmed as permanent along with the restriction respecting her “use of vibrating machinery”. There was nothing in that letter that admitted of degrees of vibration. The Case Manager at the Board, Ms. McIlvean had at her disposal a description of the equipment and its functions on the golf course as well as medical information from the Grievor’s own doctors together with anecdotal information from Ms. Andrew’s co-workers and supervisor. More importantly, the Board had the opinion of its own medical staff that had reviewed the available evidence before it made the determination concerning Ms. Andrew’s impairments and the restriction regarding vibrating machinery. In the circumstances, I find that the restriction related to vibration from all equipment in use on the golf course.

74Mr. Brewin argued that since there existed here a conflict between the Grievor’s experience operating some vibrating machinery, in particular, the Toro 5400 during the 2009 season against the report from the WSIB, it was incumbent upon the Employer to give more weight to the worker’s preferences or minimally to seek clarification of the degree of vibration which the worker could tolerate or experience without further aggravation or exacerbation of her impairments.

75While there is arbitral jurisprudence endorsing the proposition that an employer may and perhaps should seek clarification of medical opinions where those medical opinions are conflicting, in this case, there is no conflicting medical information concerning the nature of Ms. Andrew’s impairments nor medical equivocation or conflict respecting the restriction on her use of vibrating equipment. The only comprehensive medical opinion in the hands of the Employer prior to receiving the January 28th, 2010 letter from the WSIB was the September 25, 2008 FAF of Dr. Fraser, the orthopedic surgeon. Although the original vibration issue might have surfaced while the Grievor was operating a Tri-King mower, the restriction identified by Dr. Fraser was with respect to vibration and its effect upon Ms. Andrew’s whole body. He clarified that she should not be operating vibrating equipment and did not differentiate with respect to the degree of vibration emanating from that equipment. Similarly, the January 28th, 2010 letter from the WSIB did not differentiate between different pieces of vibrating equipment notwithstanding the information it had available to it respecting numerous machines to which Ms. Andrew might be assigned.

76In the circumstances, there was no disparity in the available medical evidence which would place an onus on the Employer to seek the kind of clarification suggested by Mr. Brewin and desired by Ms. Andrew. Indeed, the 2008 and 2009 working experience, rather than indicating Ms. Andrew could operate all manner of vibrating equipment or even the Toro 5400 without risk confirmed that the opposite was true. There was no piece of equipment operated from a seated position which did not create sufficient vibration in certain circumstances to cause the Grievor significant discomfort. That she was prepared to tolerate some level of discomfort in order to continue in her job was demonstrated in her resistance to medical attention on at least that occasion when she experienced a problem with the Sand-Pro machine in 2008 and again in 2009 when she had to stop dew-whipping because of the pain it caused. In consequence, she was removed from various assignments due to her complaints but her tenacity with respect to her job with the Employer had her grasping to continue with those duties which involved levels of discomfort from vibration which she found tolerable. However, notwithstanding her wishes, there was no equivocation in the medical report by Dr. Fraser in 2008 or indeed that by her own physician Dr. Nash in January of 2009 which mirrored the restriction identified by Dr. Fraser with respect to any vibrating equipment.

77In the circumstances, I am satisfied that the Employer did not err in 2010 when it took the position in March with the support of the representative of the WSIB that Ms. Andrew’s medical restrictions and the risks to her health were such that she was unable to perform the essential duties of the position and that, given the nature of the job and her restrictions, she could not be accommodated to the extent necessary to carry on in that position. The standard to be applied in these situations is an objective one. It would not be appropriate for the Employer against existing and consistent medical information to continue to assign an employee to tasks which he or she wished to perform notwithstanding documented information that such activity puts his/her health at risk. The employee’s subjective preferences ought not to govern in these circumstances.

78Any doubt concerning the extent of the restriction on the Grievor’s capacity was put to rest with the FAF of March 3rd, 2010 prepared by Dr. Nash. Indeed, Ms. Andrew certainly recognized at that time that the restriction respecting vibration was of general application and did not relate only to her operation of the Tri-King machine. She knew that was the case at the time Dr. Nash provided that Report. For that reason she withheld it from the employer and sought to have the FAF revised by her physician to support her subjective view that there was equipment with lower vibration levels which she could operate without issue or risk. Perhaps as important as that report from Dr. Nash was the fact that Ms. Andrew was not thereafter able to produce a revised opinion from Dr. Nash, her personal physician, which supported Ms. Andrew’s subjective opinion concerning her restrictions. Furthermore, Dr. Nash would be in the best position to make that determination since all specialists reported to her.

79The only contrary view appeared in a letter written by Dr. Fraser in April of 2010 wherein he states the following:

Since the original injury the machine involved Tri-King has been retired and she no longer uses this source of vibration. She has been able to do her job with equipment with a different vibration frequency without aggravation of her problems since 2007.

80There are several concerns with that letter. The most glaring of those is the premise upon which it rests, that is, that Ms. Andrew had no difficulty or aggravation with equipment of a different vibration frequency since 2007. As recited throughout this award, Ms. Andrew had difficulty with vibration of all manner of equipment other than the Tri-King machine. Furthermore, Dr. Fraser himself performed a physical examination on Ms. Andrew on two separate occasions the first on February 19th, 2008 and the second on March 11th, 2009. While the two letters to the Grievor’s physician Dr. Nash appear at first blush to be identical, in fact, Dr. Fraser identified in the second review several orthopedic issues which were not present in the 2008 assessment. There was in fact some deterioration from 2008 to 2009. Additionally, there was no indication in the 2010 letter that Dr. Fraser had performed any examination whatsoever but relied solely on the information provided by Ms. Andrew with respect to her subjective view of her experience since 2007 with the Employer. As indicated earlier, that subjective view of Ms. Andrew is at odds with the objective evidence and her experience on the job. Finally, the form of the letter is such that it can not be construed as a medical opinion. There are no examination results nor statement of impairment nor, more importantly, is there any reference to physical restrictions whatsoever. Simply put, the letter is unreliable.

81Finally, aside from the March 3rd, 2010 FAF provided by Dr. Nash who identified amongst other things a restriction for the Grievor with respect to environmental exposure to vibration from equipment as well as risks to both her whole body and feet from such vibration, Dr. Nash cautioned that “Patient has degenerative spinal disease, neck and lumbar spine. Her symptoms vary and they do recur. This will be ongoing”. There was also produced from the WSIB a letter by Dr. Fulton to the Grievor’s physician Dr. Nash regarding a reassessment on July 26th, 2011. By this time Ms. Andrew had not worked on the golf course since the latter part of 2009. Dr. Fulton identified several physical areas of progress and improvement with respect to the Grievor’s impairments. More importantly to this matter is his comment as follows:

I discussed vibration and told Ms. Andrew that she should not, under any circumstances, become involved in a workplace situation that presents her with repetitive vibration – vibration that would influence her shoulder or vibration that would influence the right foot and ankle. WSIB should be cognizant of this permanent restriction.

82In summary, I conclude that the consistent and reliable evidence in this matter confirms that Ms. Andrew was medically restricted from operating all vibrating machinery customarily used in the maintenance of the Whirlpool Golf Course. That restriction together with others were such that as at January of 2010 she was unable to perform the essential duties of the Labourer 3/4, Golf Course Technician position.

83Furthermore as indicated earlier in this award I was unable to find sufficient evidence to determine that the Niagara Parks Commission and, in particular, the Golf Course Administration had discriminated against her on the basis of gender.

84In view of these findings, I was unable to find a violation of her rights either pursuant to the collective agreement, the Ontario Human Rights Code or any other applicable legislation.

85In the circumstances the grievance is dismissed.