3:000 Introduction

3:100 Practicality of Requiring a Medical Assessment - Page 33

3:200 Issues Regarding the Adequacy of Medical Assessments - Page 34



This chapter considers the difficulties in both obtaining and then relying on medical certificates.



For the most part, arbitrators have attempted to find a suitable balance between the employer’s need for appropriate disclosure of an employee’s medical condition (with the concomitant employee privacy concerns),52 the practical need to give effect to medical certificates, and the reality that medical certificates often are issued primarily or solely on the basis of the employee’s stated symptoms (without an appropriate medical examination), and at times without full (or any) employee disclosure of relevant medical or employment-related factors.

Although arbitrators consistently have found that an employee must do more than merely assert she was ill in order to justify her absence on that basis, the requirement to produce a corroborative or explanatory medical certificate can be problematic:53


It is not uncommon for a collective agreement to require the production of a medical certificate for all but the shortest illnesses. This practice poses, in my view, the danger of a gross abuse of the medical services which are provided as a part of the social legislation of this Province. It would appear inevitable that medical practitioners will be deluged with requests from employees, not for medical services but for proof of illness. Many short-term illnesses, as any mortal human being knows well, are not amenable to medical treatment. Were the requirements of many collective agreements enforced to the letter, employees with common colds who ought to be home in bed with a warm drink would be forced to attend at their doctors’ offices, and physicians who ought to be meeting the treatable medical needs of their patients would, to satisfy some employer, be certifying the existence of cold symptoms which can be best cured by the body’s own defences.


However, problems associated with obtaining medical certificates do not obviate the need for, or relieve employees from, having to obtain such certificates. Obstacles to obtaining a medical certificate are not insurmountable, and an employee who fails to obtain one when required does so at her own risk.54




52 The issue of balancing the employee’s desire to limit disclosure of private medical information and the employer’s legitimate need to obtain information about an employee’s health or medical condition has been canvassed in Chapter 1.

53 St. Jean de Brebeuf Hospital (1977), 16 L.A.C. (2d) 199 (Swan)

54 See the excerpt from Dashwood Industries Ltd (1998), 73 L.A.C. (4th) 395 (Rose), referenced at p. 110 of this manual.



3:200 Issues Regarding the Adequacy of Medical Assessments



Employers and unions look to physicians to provide accurate and objective medical information. The failure of some physicians to meet that standard is central to much of the grievance-related litigation common to this area.

The failure of some physicians to provide a proper medical certificate may be attributable to one or more of the following factors:


    1. Physicians are busy professionals. Medical conclusions rendered with respect to minor or medically insignificant issues often are based solely on subjective information provided by the employee. The physician’s failure to stipulate whether she is relying primarily on an oral history rather than clinical signs of illness may lead to questions regarding the validity or usefulness of such certificates.

    2. There is always the possibility that a particular employer, union, or employee will attempt to massage information to achieve a specific outcome or a preferred resolution of a workplace issue. While most physicians do not have the time or inclination to probe the truth or accuracy of information that has been provided, they should, where possible, disclose the essential facts on which they have based their medical opinion. Failure to do so may justify an employer’s or a union’s efforts to seek clarification or additional information.

    3. Physicians may adopt an inappropriate advocacy role on behalf of their patients and thereby unwittingly contribute to, or, in fact, create litigious issues in the workplace.

    4. Physicians may contribute further to workplace litigation by making recommendations based on inadequate knowledge of either the employee’s position or alternate work that might be provided to the employee as part of a return-to-work arrangement. While some of the responsibility for this can be attributed to inadequate or untruthful information provided by a particular employee, the ultimate responsibility must be borne, at least partly, by the employer. Employers need to ensure that the physician has the required information before making her recommendation. Where it is suspected that a recommendation was made without a full understanding of the workplace situation, then the employer should provide the physician with the necessary information along with a request for a supplementary certificate or report.

    5. Physicians generally have no knowledge of the terms of the collective agreement or any associated benefit plan. A mere statement that an employee was “absent due to illness” must be considered in that context.


Arbitrators have acknowledged that patients can be manipulative when seeking a medical certificate to serve a particular end:55


Theoretically, a patient will be truthful, non-manipulative, and sincerely interested in as quick a genuine recovery as reasonably possible. Such a recovery would enable a return to work without an excessive absence or an overreaching claim for WI or Workers’ Compensation benefits. However, theory and reality may diverge. One employee may be motivated to overextend his/her absence; another may be motivated to return to work before really being ready. There is no obligation upon the physician to accept that the patient is being truthful; and there is no absolute obligation upon an employer to accept a doctor’s note at face value.



55 Ocean Construction Supplies Ltd. (2005), 140 L.A.C. (4th) 257 (Blasina); see also the comments of arbitrator MacDowell in Brampton (City) (2008), 174 L.A.C. (4th) 140 (MacDowell), discussed on p. 143 of this manual.



3:200 Issues Regarding the Adequacy of Medical Assessments



Arbitrators also have recognized that a physician may not be completely objective, or may not be competent, or have the necessary knowledge, to make an informed decision to certify the employee as being unable to work.


The real world is not an ideal one. In the ideal world doctors would have perfect knowledge of the relevant medical matters, their patients and their patients’ workplaces, and would be completely objective. If that were so, a doctor’s simple statement certifying that an employee was ill and unable to work for some specified period of time, and specifying restrictions for return to work and accommodation purposes when and as appropriate, would be good enough for all purposes and nothing further, including any diagnoses or even a statement of the nature of the illness or injury would be required. But that is not the real world, or at least not the one I am familiar with. Medical health professionals are also human beings. The fact is they are not always entirely objective. It is quite appropriate for medical health professionals to act as advocates[56] for their patients in medical matters within their competence, but not when the advocacy extends beyond their medical expertise or matters of which they have direct knowledge, such as when they have little or no knowledge of the workplace or their patient’s job or employment situation other than what their patient decides to tell them.57


In accepting the opinion of the employer’s expert witness over that of the employee’s treating psychiatrist, arbitrator Smith, in Canada Safeway Ltd. [2000],58 stated:


First, it must be noted that while I have no doubts about the sincerity of [the treating psychiatrist’s] views, he is the treating psychiatrist who must have as his primary focus the successful treatment of the Grievor and not the truth or accuracy of her recitation of the events. From his perspective the needs of the patient and her requirements are paramount and not the needs of the Employer. To that extent, some of his responses during cross- examination revealed that he was acting more as an advocate than an objective observer. Such detracts from the strength of his evidence. A similar conclusion was reached by Arbitrator Tettensor in the Mauro grievance case [Canada Safeway Ltd. (1996), 42 C.L.A.S. 264]. That [the treating psychiatrist] omitted from his report a material and significant fact, namely the Grievor’s previous conviction for theft underscores this point …”


In Brampton (City) [2008],59 arbitrator MacDowell commented on the difficulty an employer can encounter in having to evaluate the validity of information provided by health-care professionals:


In the “real world”, a busy family physician may not be fully informed about the employment context and may not probe the truth or completeness of what s/he is being told by the patient; nor may s/he be inclined to express an opinion that is contrary to that patient’s wishes. Accordingly, [the witness’s] job includes sifting through the material that doctors provide, in order to see whether it fairly illuminates the worker’s medical situation and fairly supports the employee’s preferred resolution of a workplace issue. From her perspective, it is a problem solving exercise that requires accurate and objective medical information; because



56 An example of the physician as advocate can be found in DuPont Canada Inc. (1994), 42 L.A.C. (4th) 22 (Starkman), where the physician acknowledged that, with no material change in the employee’s condition, he had altered his opinion because he thought that to do otherwise might have an impact on the employee’s claim to Workers’ Compensation benefits. See, also, Peel Regional Police Services Board (2011), 204 L.A.C. (4th) 65 (Trachuk), where the physician’s advocacy on behalf of the employee was a critical factor in the arbitrator directing the employee to submit to an independent medical examination.

57 S.E.I.U., Loc. 1 Canada (2008), 174 L.A.C. (4th) 210 (Surdykowski)

58 Canada Safeway Ltd. (2000), 94 L.A.C. (4th) 86 (Smith)

59 Brampton (City) (2008), 174 L.A.C. (4th) 140 (MacDowell). This case is reviewed further, commencing at p. 143 of this manual.



3:200 Issues Regarding the Adequacy of Medical Assessments



what the employee wants or thinks s/he is “entitled to” may not be appropriate to the work setting; and the medical evidence tendered by the employee may not be sufficient or complete. In [the witness’s] experience, these cases call for a careful assessment of what the information means for the workplace problem under review – a process that is influenced, but not always governed, by what the employee wants or what his/her doctor has recommended. For as Arbitrator Surdykowski has noted, the doctor may be neither objective nor fully informed.


Physicians generally have no knowledge of the terms of either the collective agreement or any associated benefit plan. A mere statement that an employee was “absent due to illness” must be considered in that context.60

In Providence Care, Mental Health Services [2011],61 arbitrator Surdykowski commented extensively on issues related to medical assessments and mis-use of sick leave. Not all people are “objective, honest, ethical, candid and truthful.” Many physicians have taken on an inappropriate advocacy role in the unionized workplace. He stated:


[While advocacy within the health care system may be appropriate], such advocacy may be misplaced when it enters the employment or legal world. Particularly in the unionized work world there is a very limited place for medical health professionals as advocates. There the role of the medical health professional is to provide the necessary medical facts and expert opinions as required, and to leave advocacy in the collective agreement benefits administration process, or the grievance arbitration process, to the union which is charged with the duty and responsibility of representing employee interests in that respect.


The need for objectivity in providing medical information is a matter that has been dealt with by some of the provincial colleges of physicians and surgeons. For instance, the following portion of the Medical Certificates section of the Policy Manual published by the British Columbia College of Physicians and Surgeons was referenced in Ocean Construction Supplies Ltd. [2005]:62


A physician may be pressured by the employee to provide information to the employer which meets the employee’s objectives. However, physicians must recognize that employers and their insurers will be relying on the information provided to them by the physician in making a number of decisions concerning questions such as those raised above. A physician may be required to testify in proceedings involving a dispute between an employer and an employee. These proceedings could be before courts, boards of arbitration under collective agreements, boards of inquiry in human rights disputes, the Workers’ Compensation Appeals Tribunal or a Workers’ Compensation Board Reinstatement Officer. In such proceedings, the physician may be subpoenaed as a witness, required to produce clinical notes and examined and cross- examined under oath about the information already provided by the physician to the employer or the employer’s insurer. Employers and insurers do indeed rely on representations made by physicians concerning the matters referred to above and in so doing they may incur financial liability for sick leave or disability pay. As well, the employer will be relying on representations that the employee is fit to return to work. Physicians should recognize that if they provide misinformation or erroneous or unfounded opinions concerning such matters employers and insurers who have relied on such representations may have claims for damages against the physician.



60 See Grace Hospital (1984), 16 L.A.C. (3d) 263 (MacIntyre) and Kawneer Company Canada Ltd. (2001), 100 L.A.C. (4th) 129 (Luborsky), discussed on p.138 and 139 of this manual.

61 Providence Care, Mental Health Services (2011), 204 L.A.C. (4th) 345 (Surdykowski)

62 Ocean Construction Supplies Ltd. (2005), 140 L.A.C. (4th) 257 (Blasina)



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Similarly, a Statement issued by the College of Physicians and Surgeons of Manitoba was considered by arbitrator Peltz in St. James-Assiniboia School Division No. 2 [2004].63 An excerpt from that statement follows:


Unlike Guidelines which are also published by the College as general clinical advice for the profession, Statements are formal requirements which doctors must follow … The intent of Statement 139 on Sickness Certificates is to allow employers enough information so they can assess the basis for the medical opinion being given, while at the same time not divulging so much personal information that patient privacy is being undermined. In a background comment, the College notes that employers and insurers rely upon physician certificates and may incur financial liabilities for sick leave and disability coverage.

The operative text of that Statement (college website version) states: Obligations

When providing a certification, a physician must:

Ensure there is consent from the patient to provide information to a third party. Limit the information provided to that covered by the patient’s consent.

Limit information to that specifically required by the third party within the scope of the patient’s consent.

Ensure that all statements made are accurate and based upon current clinical information about the patient.

Limit the statements to the time period with respect to which the physician has personal knowledge. A physician must not state that the patient has been under the physician’s care for a particular time period unless that is a fact.

When providing a sickness certificate, avoid diagnostic terms. Information provided may indicate:

-Prognosis relative to the work situation

-Activity limits and ability limits

-Risk factors (to the patient and others)


When providing a sickness certificate on the basis of a history provided by telephone or following an office visit where clinical evidence of the illness does not continue to be evident, specifically say so in the sickness certificate.

A physician must not imply that the physician has evidence of an actual diagnosis if the information is restricted to history or examination that is non-contributory.

When providing a sickness certificate, have accurate information about the requirements of the patient’s job before giving an opinion on fitness to work.

A physician who gives a certification containing a statement which the physician knows or ought to know is untrue, misleading or otherwise improper, commits an act of professional misconduct.



63 St. James-Assiniboia School Division No. 2 (2004), 131 L.A.C. (4th) 313 (Peltz)



3:200 Issues Regarding the Adequacy of Medical Assessments



Concerns related to the adequacy and sufficiency of medical certificates are discussed in Chapter 7, Medical Certificates.