In Teck Coal Limited, 2012 Can LII 71111 (AB GAA) (Lucas), the physician who conducted the Independent Medical Examination (at the direction of the arbitrator), accepted that the employee had a “predisposition due to obesity to recurrence of nonspecific lower back pain in performance of work duties when exposed to bouncing and jarring.” She set out her impressions of the employee “which included the following diagnostic conclusions within her area of expertise, namely his significant abdominal obesity, evidence of mechanical nonspecific lower back pain, and self-admitted uncontrolled high blood pressure” The physician advanced the following recommendations;
[The employee] is at greater risk for the following conditions:
[The employee’s] difficulties are long standing and put him in peril of significant and even life threatening events. As a result, attention is urged to control of his underlying obesity with ongoing control of his blood pressure and cholesterol level, improvement of fitness and conditioning levels and weight loss. First and foremost, the patient would be advised to see a dietician where appropriate lifestyle modifications can be prescribed, discussed, and taught. Those are to include, but are not limited to appropriate diet.
The accommodation plan that the employer drafted provided that:
The union took the position that the plan was not acceptable and that the employee should be accommodated in the workplace. It requested that a hearing be held to deal with this issue.
The arbitrator characterized the issue as being whether the proposed accommodation plan satisfied the employer’s duty to reasonably accommodate the employee’s disability, short of undue hardship, so as to enable the employee to return to work at the mine.
After considering the evidence, the arbitrator concluded that the employee was not fit to be unconditionally re-instated as a rock truck driver. He stated that
If he wishes to pursue reinstatement he will need to accept the conditions outlined in the Plan and adhere to its requirements. In that regard he has 30 days to decide if he wishes to comply with the Plan and inform the Employer. Should he fail to inform the Employer within that time of his acceptance of the Plan he will be deemed to have abandoned his employment with the Employer.
In light of suggestions made by the union that not all positions had been fully considered, the arbitrator directed the parties to meet within 30 days to determine if there was a position that would permit the employee’s gradual return, and if so, whether the accommodation plan could be modified “after a completion in the rehabilitation program of something short of the 8 weeks presently described. If the parties are unable to reach agreement and assuming [the employee] has failed to inform the Employer of his acceptance of the Plan, a declaration that the Employer has fulfilled its duty to accommodate will issue and the Union’s grievance will be dismissed.”