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Expanded Case Details

Teck Coal Limited, 2012 Can LII 71111 (AB GAA) (Lucas)

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:

  1. Adverse cardiovascular effects including strokes, heart attacks, dyslipidemia, peripheral vascular disease.
  2. On going chronic and/or acute on chronic mechanical back pain with further discogenic abnormalities and potential for neurologic compromise including lumbosacral radiculopathy, limitation of mobility and activities tolerance including sitting and negotiating stairs, bending, twisting. Due to limitation of sustained activities maintenance sleeping and sitting are part of said vocational and avocational restrictions.

[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:

  1. The employee would comply with the specialist’s recommendations by reducing his weight by 85 pounds over an eight month period by commencing and maintaining an active rehabilitation program that has certain stated components.
  2. The employee would refrain from engaging in certain activities outside of work which increase back pain due to jarring movement until such time as his weight has been reduced by at least 45 pounds and he has engaged in the rehabilitation program for a period of eight consecutive months.
  3. The employee would provide a copy of the specialist’s report to his family doctor and request he be referred to an internal medical specialist and/or cardiologist for assessing further cardiovascular risk factors and their control.
  4. The employee would become involved and fully participate in a weight loss self-help/support program that exists in his home community.
  5. For a period of eight months from the date of the plan, the employee will report to the Employer’s Occupational Health and Safety Nurse monthly regarding his compliance with the conditions set out in the Plan.
  6. Upon completion of eight weeks of the rehabilitation program the Employer will consider the employee’s gradual return to work taking into account the progress he has made in addressing the issues which have prevented him from returning to work safely.

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.”

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