(hereinafter referred to as the “Railway”)
(hereinafter referred to as the “Union”)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: J.E. Dorsey, Esq.
Counsel for the Union: T.L. Robertson, Esq.
Place of Hearing: Vancouver, B.C.
Date of Hearing: October 10 and 14, 1986
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The grievor in this dispute, Veljko Surlan, is an employee of the Railway and, at the material time, was employed as a heavy duty machine operator. He injured his back at work on December 9, 1985 and was placed on disability leave. He know (sic) seeks to be returned to his position as a machine operator. The Railway’s position is that he has not demonstrated that he is physically fit to perform the duties of the position. The Railway has offered to employ the grievor in another capacity consistent with its assessment of his physical condition but the grievor insists that he is capable of returning to his former position.
The Railway conceded that its initiative amounts to a demotion of the grievor in the sense that the only alternative position found to be available that the Railway deems to be within his physical capabilities is a position as a security guard outside of the bargaining unit at a lesser rate of pay. Aside from the Railway’s concession, it could be argued that the removal from the bargaining unit is tantamount to a dismissal. In any event, the Railway accepted that it must establish just cause for its initiative. The parties agreed that the following question summarizes the dispute:
Did the Railway breach the Collective Agreement and the rights of the Grievor, Vic Surlan, in refusing to allow him to return to work and exercise his seniority as a machine operator on the basis that he was medically unfit?
The grievor has been employed by the Railway since January 11, 1972. He has been a machine operator throughout his working career, operating various types of cranes, bulldozers, heavy duty loaders and other equipment. He has had recurring back problems since October 11, 1977 when he injured his back which servicing a machine. In total he has had six time-loss back injuries, including the injury giving rise to this dispute.
The Railway takes the position that the grievor’s accident record, coupled with a medical opinion of its chief medical officer that he is unfit to perform the duties of a machine operator, is sufficient justification for its refusal to return him to a job in that classification. The Union position is that the grievor’s attending physicians, including a qualified specialist, have certified him as fit to resume his duties as a machine operator and that the Railway has failed to establish a basis for refusing to reinstate him to his former employment. On that articulation of the issues I turn to the material facts.
In the incident giving rise to this dispute, the grievor was injured on December 9, 1985 while operating a heavy duty loader at a work site on the rail line near Lillooet. In particular, he was removing rock from the line and one flat boulder, weighing approximately 150 pounds, was lying in a position where it could not be removed with the loader bucket. The grievor dismounted from the machine and lifted the boulder, causing it to slide over the embankment. That act caused him to injure his back.
The grievor continued working for the rest of that day with increasing discomfort in his back. He reported for work the next day, December 10 but, after approximately one hour of work, he collapsed while walking, having lost control of his leg muscles. He was transported by speeder to the hospital at Lillooet where he remained for five days, from December 10 to December 14, 1985, when he was transferred to St. Paul’s Hospital in Vancouver.
The grievor, as indicated, has a rather protracted medical history with respect to injuries to his back. In this dispute the evidence of the history consisted to a large extent of documentary evidence in the form of letters of opinion, Worker’s compensation Board (W.C.B.) reports, and various other medical reports. The documents span a period from August 20, 1982 to September 12, 1986. It is clear from that documentary evidence that there was a substantial history prior to August of 1982, dating back to October of 1977. However, no detailed history of the incidents prior to 1982 was given.
In this hearing the evidence adduced viva voce with respect to the medical condition of the grievor was limited to the evidence of the Railway’s chief medical officer, Dr. Eric Jeffries, and Dr. Petar Kokan, the orthopedic surgeon who treated the grievor with respect to the injury giving rise to this dispute. Hence, when findings are made in this award as to the relevant medical facts, those findings were made from the viva voce evidence and form facts extracted from the large volume of documents and reports filed in evidence.
Turning back to the facts, when the grievor was brought to the Lillooet District Hospital on December 10, he was treated by Dr. R.F. Carlson. An x-ray examination of the grievor displayed objective findings of a back injury. In addition, Dr. Carlson made physical observations indicating that the grievor had been injured. It appeared from the documents that Dr. Carlson took a medical history of the grievor’s prior back injuries. From That information he attempted to contact various specialists who had treated or examined the grievor over the years.
The only specialist Dr. Carlson succeeded in contacting was an orthopedic surgeon in Vancouver who had seen the grievor once in August of 1982 and who had concluded that the grievor’s symptoms were psychosomatic in origin. That specialist, presumably after having had the circumstances related to him by Dr. Carlson over the telephone, and based upon his three-year-old records, advised Dr. Carlson that, “this man’s [current] discomfort [is] likely psychosomatic in origin”.
I pause to note that the weight of the medical evidence confirms that the grievor did not suffer from a psychosomatic condition and that he was not malingering, a fact that was conceded by the Railway in the hearing. In fact the Railway not only took the position that the grievor was not malingering, its position was that the grievor is extremely vulnerable to injuries to his back and, for that reason, is not physically fit to perform the duties of a machine operator.
However, the 1982 opinion that the grievor’s symptoms were psychosomatic and the reiteration of that opinion in the 1985 telephone diagnosis becomes relevant in this dispute because it appears to have affected the view taken of the grievor’s claim by officials of the Railway. In particular, officials in the safety department of the Railway, called the System Safety Department, were clearly of the opinion that the grievor was malingering. One member of that department went so far as to try to persuade the Railway’s chief medical officer to use his influence to obtain sub rosa medical information aimed at compromising the claim of the grievor. I will refer to those facts later in this dispute. At this stage I make reference to them only to keep the narration of the relevant facts in context.
On December 10, 1985, coincidental with the grievor’s admission to the Lillooet District Hospital, G.R. Merry, the manager of the System Safety Department, filed a report on the accident with the W.C.B. on what is referred to as a “Form 7”. It was indicated on the Form 7 that the Railway intended to protest the claim. The Form 7 was forwarded to the W.C.B. with a covering letter on December 11 by an official of the Railway’s Benefits Department. In that letter it was confirmed that the Railway would protest the claim.
The basis of the protest outlined in the letter was the history of back injuries sustained by the grievor and the interpretation of that history by the Benefits Department. The summary of the Railway’s interpretation is contained in the following extract from the letter:
It should be noted that the orthopedic specialist who saw Mr. Surlan in August of 1982 concluded that there was no obvious abnormality in the patient and that the patient had a psychosomatic problem with no organic disease that the orthopod could detect.
Thereafter, there were two branches to the progress of the claim of the grievor and his continuing status as an employee. The one branch involved the W.C.B. claim and the contest between the Railway and the union with respect to its validity. The other was the Railway’s assessment of the treatment of the grievor’s injury and his potential as an employee to return to work. The union stressed that there was an inconsistency that emerged in that regard. That inconsistency was that while the Railway continued to prosecute its protest of the W.C.B. claim and to insist that the claim was spurious, its position with respect to the grievor’s return to work was that he was physically unfit to work as a machine operator because of his back condition.
I emphasize that I am not concerned in this dispute with the W.C. B. claim except to the extent that it assists in understanding the position of the parties on the return-to-work dispute. In that limited context, I note that the W.C.B. claim of the grievor was processed subject to the protest of the Railway. In due course the claim was accepted an the grievor received W.C.B. benefits. These benefits were terminated on February 14, 1886. At that time the grievor was denied further benefits on the basis that, in the view of the W.C.B., he was fit to return to work. The Railway was advised of the fact on February 17, 1986. In particular, the Railway was advised as follows:
Mr. Surlan has been cleared for a return to work. As indicated to him in my letter of 17 February 1986, he had been cleared as of 12 February 1986, but I allowed him two further days of wage loss so that he could make arrangements with you with respect to his return to work.
The grievor advised the W.C.B. in response to that initiative that he was unwilling to return to work until he had been cleared as fit to do so by Dr. Kokan. Hence, by February 14, 1986, the grievor had been cleared to return to work by the W.C.B. That determination followed a review of his condition by the medical staff of the W.C.B., including an examination on January 2, 1986 by Dr. Wm. P. Hrudey, the director of the W.C.B. back evaluation and education program. That initiative on the part of the W.C.B. had no apparent effect on the return-to–work dispute, other than as an indication that the grievor was cleared by the W.C.B. as medically fit to return to work as of February 12, 1986.
I turn back now to the transfer of the grievor from the Lillooet District Hospital to St. Paul’s Hospital and his treatment and diagnosis by his own physicians, being Dr. Killick, his family doctor, and Dr. Kokan, a specialist in orthopedic surgery. Dr. Carlson contacted Dr. Killick and, in accordance with his instructions, arranged to have the grievor transferred by ambulance to St. Paul’s Hospital on December 14, 1985. He was examined on that day in St. Paul’s by Dr. Kokan.
As stated, Dr. Kokan gave evidence. He is an orthopedic surgeon in private practice in Vancouver and is an assistant professor of medicine at the University of British Columbia, teaching in his field of expertise. The major part of his practice and his teaching has to do with the treatment of back conditions, including injuries.
On December 17, Dr. Kokan completed a report following his examination of x-rays of the grievor. His conclusion reads as follows:
There is probably extruded disc material within both sides of the canal at the level of L.5. A myelogram would be helpful in confirming this.
Dr. Kokan next completed a report to Dr. Killick on January 17, 1986.
In that report he confirmed his earlier findings but concluded that the grievor was responding to conservative treatment and recommended that no surgical procedures or intrusive testing be initiated. He expressed himself in his conclusion as follows:
I think this patient sustained substantial back injury at work, he subsequently developed acute back and leg symptoms. He presented initially with a picture of central herniation of the lumbar disc. He had a CT scan done which is suggestive of extruded disc at the level of the 5th lumbar vertabra. The patient however is improving, right now he doesn’t have any neurological deficit. He however still does have back ache and leg pain. I advised him to continue to rest at home and he should commence physiotherapy treatments. He should try to lose some weight. If his symptoms don’t improve or should get worse again he then would require further studies of the lumbar canal, probably lumbar myelogram and/or CT scan at this time augmented with Metrizamide. However as long as he is improving there is no need to carry out the above studies. In retrospect I think it is quite likely that he extruded disc material following that injury, the symptoms initially were localized more on the right side.
been discharged from St. Paul’s Hospital and returned home on December 24, 1985. Thereafter the grievor attended physiotherapy sessions and engaged in and exercise program designed to reduce his weight and strengthen his back muscles. However, during the course of exercising in February, he strained his back through over-exertion and was set back in his recovery program.
During his period of recovery he continued to see Dr.
Kokan to have his progress monitored. Dr. Kokan made various reports with respect to his examinations of the grievor, including reports to the W.C.B. both before and after the grievor’s benefits were terminated. The relapse experienced by the grievor by reason of his excessive exercise was recorded by Dr. Kokan in a report to the W.C.B. dated March 7, 1986. In addition, Dr. Kokan gave evidence about that episode in this hearing. The Union saw that fact as having significance in terms of the opinion formed by the Railway’s chief medical officer, Dr. Jeffries. I will return to that aspect of the dispute later.
The grievor remained off work until March 17, 1986
when he obtained the following medical slip from Dr. Kokan:
The above mentioned will be able to return to his previous heavy type of work in three weeks time (no work restriction).
On April 1, 1986 Dr. Kokan prepared a medical report
for the Union in which he elaborated upon his opinion that the grievor was fit to return to work. I will return to that report later. On April 3, 1986 the grievor’s family physician, Dr. Killick gave him the following medical slip:
Mr. Surlan is cleared for work April 7/86 with no restrictions. (Underlining included in original text).
Hence, by April 1, 1986, the W.C.B. and both of the grievor’s physicians had concluded that he was fit to return to work.
However, coincidental with these developments, Dr.
Jeffries, the Railway’s chief medical officer, had expressed the opinion to the Railway that the grievor was not fit to perform the duties of a machine operator. His opinion was based on an examination of the grievor on March 6, 1986 and a review of his medical records. His opinion was dated March 9, 1986 and it reads as follows:
This man has signed a medical release to obtain relevant medical information regarding his current disability. When I saw him he informed me that a minor happening on 24 February [the excessive exercising] had caused recurrence of symptoms and his history indicates that similar problems have occurred before. It would appear therefore that he is very vulnerable to minor incidents on or off the job. From a medical point of view this man appears to be unsuitable for his occupation as Heavy Duty Machine Operator.
Dr. Jeffries had replaced Dr. T.R. Osler as the Railway’s
chief medical officer in 1984. At that time he received all of the medical files of employees in the possession of Dr. Osler, who is now deceased. Included was a medical file on the grievor. Dr. Jeffries first reviewed that file after the grievor was injured in the incident giving rise to this dispute. His recollection was that he received a telephone call from the System Safety Department on December 14 or 15, 1985 and he reviewed the file on response to that telephone call.
Dr. Jeffries examination of the grievor on March 6, 1986
was arranged by the Benefits Department. The Union submitted that the opinion of Dr. Jeffries should be seen as flawed by the prejudice against the grievor engendered by the opinion of the System safety Department and the Benefits Department that the grievor was malingering and the steps taken by those departments to frustrate the grievor’s claim. In that context Dr. Jeffries agreed in cross-examination that in his initial contact from the Railway he was asked by the System Safety Department to use contacts at St. Paul’s Hospital in order to obtain information that would confirm the suspicion that the grievor was a malingerer and was faking his injury in order to avoid being placed on layoff.
Dr. Jeffries agreed with the Union that he was probably
told by an official of the System Safety Department something to the effect that the Railway wanted to get rid of the grievor but that he, Dr. Jeffries, refused to go along with that objective. In particular, he said he declined the request to use his influence at St. Paul’s Hospital to obtain information that would compromise the grievor.
On the evidence there is no doubt that the System
Safety Department and the Benefits Department of the Railway were of the view that the grievor was faking his injury and was a malingerer. Equally, there is no doubt on the evidence and the concession of the Railway that the injuries of the grievor were genuine that he was not malingering. There may be some question remaining as to the subjective issue of the level of tolerance for pain experienced by the grievor and the extent to which his injuries disabled him in circumstances where an employee with a higher tolerance would continue working, but there is no doubt on the evidence before me that his injury and the consequent pain he experienced were genuine.
In particular, it is abundantly clear on the evidence
That the grievor had a serious back injury and that it disabled him. That was the opinion of Dr. Kokan, the only qualified orthopedic specialist who was called to give evidence. Dr. Kokan refuted the proposition that the grievor might be malingering and stated that he had a serious back injury. He conceded that his findings were based on a physical examination and x-rays and that there were other tests that could be conducted which would confirm the condition of the grievor’s back. However, he said he did not feel that the tests were warranted or that they were necessary to permit him to form an opinion on the grievor’s condition.
He gave that evidence in the context of suggestions by
the Railway that the grievor’s condition could be more serious than Dr. Kokan anticipated. Dr. Kokan said that he gave no consideration to initiating the tests because the grievor’s condition was responding to conservative treatment. He said the tests were intrusive and should only be undertaken if they were necessary as a diagnostic aid.
Dr. Kokan did not consider that the condition of the
grievor justified the tests. He said he was satisfied that the grievor was physically fit to return to his duties. The Railway was of a different opinion. I propose now to review the evidence developed in the hearing on the question of the grievor’s physical ability to work as a machine operator.
Dr. Kokan conceded in his evidence that the grievor did
not have a “healthy back”. His evidence was that the grievor’s history of back injury coupled with the objective and subjective findings as to the probable nature of his injury left him vulnerable to further injury. I will return to his evidence shortly. I note first that the Railway relies upon a statement he made in a report to the Union on April 1, 1986. In that opinion he said:
In answer to your questions about the relationship of Mr. Surlan’s symptoms and the back injuries, I think that Mr. Surlan’s numerous back injuries at work have contributed to the degenerative changes of the lumbar discs. I feel that the previous injuries prior to 1982 have contributed to the bulging of t eL4-5 disc, and most likely the injury in December of 1985 has caused a rupture of the L4-5 disc, with extrusion of disc material at that level. The patient’s symptoms have been improving, and he is now ready to return back to work. His back, however, will remain always more vulnerable to re-injuries. In all fairness, it should be stated that Mr. Surlan could have similar symptoms, and could have developed degeneration and a ruptured lumbar disc even in the absence of the back injuries. However, the numerous back injuries and heavy type of work have greatly contributed to the further degeneration of the lumbar discs and the subsequent bulging and rupture of theL4-5 disc. (emphasis added)
That opinion was based upon the examination of the
grievor by Dr. Kokan on either March 5 or 6, 1986. In that report Dr. Kokan summarized the status of the grievor as follows:
I advised Mr. Surlan to continue exercising, and start swimming, and to continue to lose weight. He was told that he could return back to work within a month or so.
As noted previously, Dr. Kokan prepared a medical slip
on March 17, some twelve days later, advising that the grievor, “will be able to return to his previous heavy type of work in three weeks time (no work restriction)”, and that Dr. Killick wrote a similar slip on April 3, 1986, advising that Mr. Surlan was cleared for work as of April 7 with no restrictions. It is not clear whether the slip prepared by Dr. Kokan was presented to the Railway, but it is clear that Dr. Killick’s slip was received by the Benefits Department.
In fact, the implication is that it was delivery of Dr.
Killick’s slip that caused the Benefits Department to contact Dr. Jeffries a second time. In his evidence, Dr. Jeffries said that he was not aware of the medical slip prepared by Dr. Kokan on March 17 and that he had not received a copy of the slip prepared by Dr. Killick on April 3, but that the latter slip had been read to him by an official of the Benefits Department. In response to the telephone enquiry, he contacted Dr. Killick and spoke with him briefly. His purpose was to review whether there were facts which would cause him to revise the contrary opinion he had expressed to the Railway on March 9.
It was not clear from his evidence whether Dr. Jeffries
advised Dr. Killick that he disagreed with his opinion with respect to the fitness of the grievor to return to work or that he advised him that he had expressed a contrary opinion to the Railway in March. Dr. Jeffries said that in his brief discussion with Dr. Killick, Dr. Killick used the term “fairly well satisfied”, in expressing his opinion that the grievor was fit to return to work. The implication was that he construed Dr. Killick’s opinion as equivocal and thus found no reason in his discussion with Dr. Killick to change his own opinion as to the grievor’s fitness.
Dr. Jeffries said also that he attempted to contact Dr. Kokan
Coincidental with his discussion with Dr. Killick, but spoke instead with the receptionist at his office. He said that he learned that Dr. Kokan had not seen the grievor since March 5 and hence he did not consider it necessary to speak with Dr. Kokan further before confirming his own contrary opinion that the grievor was not fit to resume work as a machine operator. Hence, he never had an opportunity to learn the basis of Dr. Kokan’s opinion that the grievor was fit.
Dr. Jeffries conclusion that he did not need to discuss
the matter with Dr. Kokan, as I understand it, was based on the fact that he, Dr. Jeffries had examined the grievor on March 6, after the grievor had last been seen by Dr. Kokan, and thus, Dr. Kokan’s views could not assist him. In that context, Dr. Jeffries did not imply that his examination of the grievor was the basis upon which he formed his contrary opinion. He conceded that he had no expertise as an orthopedic specialist and that his opinion was formed from the grievor’s medical history and his interview with him. Rather, he concluded that no new medical facts existed after his March 6 examination and interview of the grievor.
On another point, Dr. Jeffries said he learned in that
telephone call that Dr. Kokan had prepared a medical-legal report for the Union dated April 1, 1986. I made reference to that report earlier. Dr. Jeffries said that he did not seek to obtain the report or to advise the Railway of its existence. He explained that he did not feel the release form the grievor had signed giving Dr. Jeffries’ access to the grievor’s medical records and the freedom to discuss the grievor’s condition with his doctors encompassed the medial-legal report. In any event, I repeat that he did not discuss the grievor’s condition with Dr. Kokan or review his findings with him before confirming his own opinion to the Railway that the grievor was not fit to resume work as a machine operator.
Dr. Jeffries was tendered as an expert in the field of
occupational medicine. He agreed, as stated, that he had no expertise in orthopedic medicine and that his opinion with respect to the fitness of the grievor to return to work consisted of his assessment of the medical information available to him and its application to the type of work the grievor was to perform as a machine operator.
He explained that one aspect of occupational medicine is
training in the capacity to take data, including medical data and apply it to the work place in terms of fitness to perform particular tasks. He said he familiarized himself with the work of a machine operator in a physical inspection of the rail line in September of 1984. On that occasion he toured the line from one end to the other on a trip that occupied several days. He did not apply himself specifically to a consideration of the nature of the duties performed by a machine operator on that trip. Rather, he was there to familiarize himself with the operation of the Railway generally and his observations with respect to the duties performed by a machine operator were acquired in that context.
There is no evidence to indicate that either Dr. Killick or
Dr. Kokan had any direct familiarity with the work of a machine operator. But Dr. Kokan acquired familiarity with those duties as a result of his discussions with the grievor. In addition, he was provided with a detailed memorandum setting out the duties of a machine operator on September 12, 1986 and was invited to review his opinion in terms of that memorandum. The memorandum was prepared by counsel for the Union in consultation with the grievor. Dr. Kokan, in the context of that detailed listing of a machine operator’s duties, confirmed his opinion that the grievor was fit tot return to work.
The Railway called evidence about the nature of the
duties of a machine operator from Wayne Carker, a former machine operator with several years experience on the Railway who is now an official in its Labour Relations Department. The evidence of Mr. Carker particularized the nature of the duties beyond the details set forth in the memorandum, but his evidence did not extend those duties beyond what was anticipated by Dr. Kokan in the expression of his opinion. Mr. Carkner’s evidence confirmed that a machine operator’s can and sometimes does involve a component of relatively heavy labour, but Dr. Kokan indicated that he had assumed that potential in forming his opinion.
From the evidence of Mr. Carkner, I conclude that the
job of a machine operator is largely sedentary but involves physical labour of a kind that would place strain upon a person vulnerable to back injury. On that evidence it is clear that the grievor faces a greater possibility of back injury than an employee with no history of back injury. That fact was confirmed by Dr. Kokan in his April 1 report to he Union and his evidence.
There was some dispute between the parties as to the
significance of the prior injuries sustained by the grievor. The Union urged that in most cases the grievor, when he became injured, was engaged in tasks which were not normally part of the duties of a machine operator. That evidence was placed in contest by the evidence of Mr. Carkner who said that the tasks engaged in by the grievor at the time of his various injuries fell within a spectrum of tasks which were encountered by machine operators, albeit infrequently. It is safe to assume that the grievor, upon his return to the machine operator’s classification, could face work tasks that would place a strain upon his back.
However, the evidence does not go nearly so far as to
support a finding that it is probable that the grievor will reinjure his back if he resumes work as a machine operator. Certainly the possibility exists, and it exists to a higher degree than it would with an employee with a completely healthy back. But Dr. Kokan was optimistic that the grievor, having taken some aggressive steps to minimize the risk of reinjury, and having developed some positive attitudes towards the problem, could continue to function without reinjury.
The grievor gave evidence that he had maintained his
exercise and weight loss program after his setback in February. He had succeeded in losing twenty pounds and in greatly strengthening his back through exercise. He said that he had quit smoking and drinking and exercised daily. The grievor’s self-appraisal was confirmed by Dr. Kokan in his examination on March 5 and in a later examination on August 20 of 1986. His report to Dr. Killick with respect to the later examination is dated August 22. It is a short report and it is convenient to set out in full:
I reassessed Mr. Surlan on August 20th of this year regarding his back problem. As you are aware he was treated at St. Paul’s Hospital last year regarding a herniated lumber (sic) disc. He recovered on a conservative regime and when last seen on August 20th, he was functioning well. He had no pain in his back or legs and he has been doing exercises and is quite active.
ON EXAMINATION: He has excellent lumbar movements, fingertips reaching the ankle joints and there is no pain on moving his back and he has no tenderness. Straight leg raising on both sides is normal. I think that Mr. Surlan has well recovered from his back injury and herniated lumbar disc. He is functioning well now. He is ready to return to his work. I think that he is capable of doing his work at this time. He was advised to keep his weight down and to continue exercises of his trunk muscles. I do not think that any further tests are required since he has recovered. It was suggested in the past that CT scan augmented with Metrizamide be done. This would be to confirm the herniated lumbar disc. I told Mr. Surlan that since he has recovered from the injury that I would not order such an invasive test at this time. This would be done only if surgery were contemplated.
Dr. Kokan is the last physician to have seen and treated
the grievor in proximity to the hearing and is the only orthopedic surgeon who has seen or treated the grievor in connection with the injury giving rise to this dispute. In addition, he is the only orthopedic specialist to appear to give evidence. The only opinion contrary to the one expressed by Dr. Kokan is the opinion of Dr. Jeffries, to which previous reference was made. His opinion, was based upon an examination conducted on March 6. His opinion was repeated in April, but not on the basis of any further data. A tentative appointment for a further examination of the grievor was made, but Dr. Jeffries did not consider it a necessary prelude to a confirmation of his earlier opinion.
The opinion of Dr. Jeffries was not based upon any
expertise in orthopedic medicine. Dr. Jeffries, for instance, did not appear to suggest that his examination of the grievor led him to disagree with the findings and opinion of Dr. Kokan as to the grievor’s condition. As I understand the evidence of Dr. Jeffries, his expertise consists of applying medical data rather than generating it himself. As stated, he did not rely on his examination to support his opinion to any significant degree insofar as it relates to the condition of the grievor.
Dr. Jeffries did do a history of the grievor’s back
injuries that he prepared in an interview with the grievor, but that interview contained a significant misunderstanding between the grievor and the Dr. Jeffries. In particular, Dr. Jeffries concluded from the interview that the grievor had injured himself while on vacation in Yugoslavia while engaged in the simple act of lifting his infant child. It transpired in the hearing, however, that the grievor had been required by emergent circumstances to grab his falling child with a resulting heavy and unexpected strain on his back.
A further misunderstanding arose between the grievor
and Dr. Jeffries to which earlier reference was made. That misunderstanding related to the setback experienced by the grievor in February by reason of his aggressive approach to his exercise program. Dr. Jeffries concluded that it was a minor incident, whereas it appears that it occurred as a result of the strenuous nature of the exercises that the grievor had embarked upon in response to the advice of Dr. Kokan.
Those misunderstandings caused Dr. Jeffries to
conclude that the grievor was susceptible to injury in “minor incidents”. A portion of his opinion as stated in his report of March 9 is repeated here for convenience, as follows:
When I saw him he informed me that a minor happening on 24 February had caused recurrence of symptoms and his history indicates that similar problems have occurred before. It would appear therefore that he is very vulnerable to minor incidents on or off the job. (emphasis added)
On the evidence, it is clear that the incidents upon
which Dr. Jeffries based his opinion that the grievor is “very vulnerable to minor incidents” were much more serious than he anticipated. In any event, his opinion was not shared by Dr. Kokan, who had two advantages in the formation of his opinion. Firstly Dr. Kokan has expertise in orthopedic medicine. Secondly, he had a continuing opportunity to monitor the condition of the grievor and the progress of his recovery. Dr. Kokan, as indicated, did not agree with that assessment of the grievor’s condition. In addition, the facts upon which the opinion was based were exaggerated by reason of the misunderstandings. Dr. Kokan did agree that the grievor is vulnerable to reinjury more so than a person with a healthy back and that he will be required to exercise caution in the future to avoid reinjury. But he did not agree with Dr. Jeffries that the grievor was vulnerable to injury in minor incidents.
Before turning to resolution of the dispute, it is
convenient to consider the legal framework within which the issues should be addressed. The Railway, as stated, concedes that it bears the onus of establishing that it had just cause to refuse to reinstate the griever to his classification as a machine operator. That is so despite the fact that the Railway expressed itself as willing to place the grievor in any available alternate employment that was consistent with what the Railway saw as his continuing disability with respect to his back.
As stated, the only available job offered by the Railway
involved a substantial reduction in wages and required the grievor to leave the bargaining unit and the protection of the collective agreement. I repeat my view that such a result is tantamount to a dismissal. However, for purposes of this dispute, it is sufficient for me to accept the Railway’s characterization of the event as one of a demotion imposed in response to its assessment that the grievor was not fit to perform the duties of a machine operator.
It is important to acknowledge that I am not
confronted with a case in which an employer has responded to persistent absenteeism by demoting or dismissing the employee. Here the employee seeks to return from disability leave and the employer refuses to reinstate him based upon its perception that he is not fit to resume his duties. The issues thus raised, while probably not unique, are unusual and the parties did not direct my attention to any arbitral authority that deals with that precise issue. The authorities relied on by the parties were those dealing with circumstances where an employer reacts to a pattern of absenteeism by dismissing the employee and additional authorities where the employer imposes a disciplinary demotion in response to a poor accident record.
Here the question is, what are the rights of the parties
Where an employee seeks to reclaim his employment following an absence on disability leave and where the employer is not satisfied that the grievor is fit to resume his duties? One can say as a first response that when an employee has left the job by reason of an illness or injury that renders that employee unfit to perform his duties, there is an onus on that employee to satisfy the employer that he is fit to resume work. The principles governing such an issue are summarized in Brown and Beatty, Canadian Labour Arbitration (1984) p. 610, as follows:
Fundamental to an employee’s right to return to return to gainful employment is a determination that she is capable of performing the job for which she has applied. When an employee returns for a period of illness or injury claiming that she is fit to return to work, she will bear an initial onus of substantiating that assertion. In the usual case, this onus will be satisfied by the employee presenting a valid medical certificate of fitness. However, in such circumstances, most arbitrators have recognized that the employer has an independent right, and according to some a duty, to satisfy itself that the employee is medically fit. This right is not an absolute and unfettered one. Rather, it has been stipulated that the right is premised on the employer having reasonable and probable grounds for assuming that the employee is unfit or would present a danger to himself, his fellow employees, or to company property.
Once the employee has met the obligation, of
establishing his fitness prima facie by adducing medical certification of that fact, there is an onus on the employer to show why the grievor should be kept out of his employment. The nature of that onus was addressed in Brown and Beatty, Canadian Labour Arbitration on p. 612, as follows:
In all of these circumstances where the parties are unable to resolve the status of an employee’s state of health, it ultimately will fall to the arbitrator to make a finding as to whether the employer’s refusal to permit the employee to return to work was reasonable. Characterizing the issue in such a manner, it would seem to follow that the employer must bear the ultimate burden of proving that its decision not to allow the employee to return to work was reasonable and bona fide.
Here, as stated, the Railway characterized its refusal to
employee the grievor as a machine operator as being tantamount to a decision by it to demote the grievor in response to his physical incapacity to perform his work. Hence, the least onus on the Railway is to establish on a balance of probabilities that the grievor will not be able to perform his duties. Later I will refer to s. 93(1) of the Labour Code of B.C. and its significance in this dispute. At this stage I confirm my view that the Railway bears the onus of proving that it had just cause to refuse to employ the grievor within the bargaining unit. That requirement remains whether the refusal is seen as amounting to a demotion or whether it is seen as tantamount to a dismissal. The just cause test applies, whatever the motivation of the Railway, because the consequences of the decision brings the matter within s. 93(1). The application of that provision does not depend on whether the conduct is alleged to be culpable or whether the response is intended as remedial or punitive. It is its impact on security of employment that brings it within the provision.
In discharging the onus imposed upon it, the Railway
relied exclusively on tow bodies of evidence. The first is the history of back injury and resulting absenteeism set out in the medical records of the grievor. The second is the opinion of Dr. Jeffries. There is some initial similarity between the issues raised in the line of arbitral cases dealing with the demotion or dismissal of an employee in response to a poor attendance record and the implications of the attendance record of the grievor. But there is one significant difference. In those cases, the pattern of absenteeism raised an onus on the employee, in the face of his record of absenteeism, to establish that he can be expected to attend regularly in the future. See: Canada Post Corporation (1982) 6 L.A.C. (3d) 385 (Burkett) @ pp. 397-8.
But that circumstance does not prevail in this dispute.
Here the significance of the past absences of the grievor arises in the context of the opinion of Dr. Jeffries and do not result in the imposition of an onus on the grievor to establish, in effect, that he can be relied on to attend regularly in the future. The appropriate line of arbitral authority in this dispute is the line of decisions cited in Canadian Labour Arbitration with respect to the obligation on an employer where it is alleged that an employee is unfit to return to work.
Dr. Jeffries said that the history of injuries led him to
conclude that the pattern would be repeated in the future. In forming that opinion he did not have the advantage of knowing about the weight reduction and exercise program embarked upon by the grievor and the beneficial effect it had on his general condition, as observed by Dr. Kokan in August of 1986. Nor did he have the advantage of discussion the matter with Dr. Kokan. In addition, his conclusion that the grievor, in effect, was prone to injury in circumstances of minor stress, was based upon a misunderstanding.
Hence, the pattern of injury of the grievor was
assessed by Dr. Jeffries in a somewhat mistaken view of the facts and in the absence of any consideration of the significant changes in the physical condition of the grievor. I cannot conclude from the evidence that Dr. Jeffries’ opinion is to be preferred to that of Dr. Kokan on the essential issue of the fitness of the grievor to resume his duties in August of 1986. That is particularly so where it is the employer that bears the onus of establishing a lack of fitness.
In that same context, it should be noted that question
of when the condition of the grievor should be assessed, at the time of the hearing or some earlier time is not a relevant consideration on the facts in this dispute. That consideration arises where an employer has responded to a pattern of absenteeism by imposing a dismissal. Here the Union, as indicated, submits that the grievor’s fitness should be assessed as of August 22when Dr. Kokan completed his final examination and report.
In my view, the issues in this dispute lie to be resolved
on the reasoning addressed in Rudolph-McChesney Lumber Co. Ltd. (1979) 23 L.A.C. (2d) 214 (Simmons). In that decision the question was whether the employer had established that a risk of future injury to an employee is a just cause for dismissing him. There the employer did establish that a measure of risk existed that was beyond the risk involved with an employee with a healthy back. But he was unable to conclude that risk of a future injury is a sufficient basis for concluding that an employee is not fit to perform his duties.
It is implicit in that decision that a risk of future injury
will not sustain the dismissal of an employee unless the employer is able to establish that further injury is a probable result of the employee continuing to perform the disputed duties. There the arbitrator was impressed by the existence of a contemporary medial opinion that the grievor was fit to perform the disputed job. In this dispute we have the contemporary opinion of Dr. Kokan that the grievor can perform the duties of a machine operator. In expressing that opinion, Dr. Kokan demonstrated a good understanding of the nature of the duties required to be performed in that classification as those duties were described in the evidence led by both the Union and the Railway.
Dr. Kokan conceded that there was an element of risk
of future injury involved in the return of the grievor to the machine operator classification, but his evidence made it clear that the risk fell far short of a probability of injury. In addition Dr. Kokan was able to confirm the grievor’s own evidence that he has taken active steps to minimize the risk of future injury. Dr. Jeffries did not have available to him any contemporary data to assist him in formulating his opinion or any insight into the steps taken by the grievor to confront the reality of his condition.
In some circumstances it is successfully argued that an
employer is entitled to rely on the circumstances prevailing at the time it makes the decision giving rise to the dispute. In this case there is some difficulty in determining when that decision was made. In any event, I repeat my view that denying an employee a right to return to his employment following a disability leave creates a different circumstance than those encountered where the employer has dismissed an employee by reason of persistent absenteeism. But even if I were to assume that there is some onus on the grievor to rationalize his record of prior absence, I accept the reasoning in British Columbia Telephone Company and the Telecommunication Workers’ Union (1978) 19 L.A.C. (2d) 98 (Gall). On p. 103, Mr. Gall said:
A review of the incidents involved, therefore, indicates that a fault-based approach to the determination of whether there is just cause to support discharge is inappropriate. The question for this board then becomes do these incidents establish that the contractual relationship of employment has been irreparably or fundamentally breached. To establish an affirmative answer to this question the employer must prove not only that an employee has failed to fulfill his contractual obligations in the past but also this failure is likely to continue.
The Railway relied on a recent decision for a contrary
view. See: Re Raven Lumber Ltd. And International Woodworkers of America, Local 1-363 (1986) 23 L.A.C. (3d) 357 (Munroe). I do not see that decision as invoking a principle contrary to the statement of Mr. Gall. Not every set of facts will create circumstances that make it appropriate for the arbitrator to consider events subsequent to the dismissal. But I do not read the decision of Mr. Munroe as requiring that the arbitrator limit himself to a consideration of events as they stood at the time of dismissal. Such a finding, as was stated by Mr. Gall, is inconsistent with the principles enunciated by the Labour Board of British Columbia with respect to an arbitral review conducted under s. 93(1) of the Labour code of B.C. On p. 103 of B.C. Tel, Mr. Gall said:
This board must answer the question of whether the discipline imposed was just and proper on the basis of all the circumstances existing at the date of the hearing. As the British Columbia Labour Relations Board stated in Wm. Scott & Co. Ltd. And Canadian Food & Allied workers Union, Local P-162, Decision 46/76,  1 C.L.R.B.R. 1 (Weiler), disciplinary [penalties must fit the individual. This individualization of penalties, as it is called, requires this board to consider all the relevant circumstances pertaining to the individual involved, not just those inexistence at the date of discharge.
Mr. Munroe, in Raven Lumber, did not say that the date of dismissal was necessarily the appropriate vantage point in a review. On p. 365 he said:
But having said all that, I now express the view that the competing arbitral attempts to establish a virtual rule of law i.e., that the assessment of a grievor in these circumstances should be undertaken as of one fixed date or another – have been misplaced. The hallmark of the modern just-cause standard is its capacity to respond, within reasonable limits, to individual circumstances; put another way, its resistance to formulistic approaches to questions of industrial discipline.
I repeat my view that the question of the appropriate
time at which to assess the fitness of the grievor does not arise in this dispute. Here the issue is whether the employer had just cause to refuse to return the grievor to active employment. But even if that approach were to apply, and even if Dr. Jeffries examination of March 6, 1986 were to be selected as the equivalent of the date of dismissal, my view is that the evidence then available to the Railway did not sustain the finding the finding that the grievor, on a balance of probabilities, was unfit to perform his duties.
In that context, I note that the opinions of Dr. Jeffries
and Dr. Kokan are not in conflict in any fundamental sense. In cross-examination, Dr. Jeffries said that he did not hold the opinion that the grievor could not perform his duties or that the grievor, if he did perform his duties, would necessarily injure his back. He said that it was his opinion that the grievor, because of his history of back problems and the nature of his degenerative back disease, ran a high risk of injury.
He did express the opinion that there was a likelihood
of reinjury, but that opinion was, in effect, statistically based. There was a clear element of pragmatism in the opinion of Dr. Jeffries that arises only partly from the medical condition of the grievor. His opinion was based with equal or greater force upon the pattern of injury experienced by the grievor over the previous several years. He said in particular that the fact that the grievor appeared to suffer a disabling time loss injury every year and a half or so was a strong basis for concluding that the pattern would continue. To paraphrase Dr. Jeffries, he saw the grievor as an employee who, if he returned to perform the same duties, would place himself in exactly the same environment that resulted in the injury pattern that had evolved over the years and there was no basis for concluding that the grievor would not injure himself in the future as he had in the past.
Without addressing how that evidence should be
weighed in an application of the balance of probabilities test, it does not take account of the fact that there were significant changes in the pattern that were attested to in the evidence. The grievor, on his uncontested evidence, had changed his personal habits significantly. In particular, he had embarked upon a vigorous exercise and weight loss program that had strengthened his back. Secondly, the grievor indicated that he had developed an awareness of the realities involved in his physical impairment and that he intended to work within his limitations.
The Railway expressed concern that the grievor, in
cross-examination had indicated that he intended to return and perform his duties in the same manner in the past. However, the inference I drew from the evidence of the grievor was that he is satisfied that he can perform his duties without risk of injury because he now understands his limitations and because he has improved his physical condition. Whatever is to be made of that opinion, it is not a basis for finding that the grievor is likely to ignore the realities of his condition and attempt tasks that are imprudent for him, or any other employee. (I note by way of aside that Dr. Kokan expressed the view that an employee with a healthy back would be imprudent to have lifted the rock that caused the injury giving rise to this dispute.)
In my view it is not sufficient for the Railway to
establish that there is a possibility of injury arising from some aspect of an employee’s physical capacity in order to remove that employee from that type of employment. The statutory regime under which collective bargaining occurs raises in employees a limited degree of job security that protects them against demotion or dismissal for other than just cause. That is one of the principle differences between and employment relationship under the law of the collective agreement and employment relationships governed by the common law. Those differences and the nuances with respect to them are discussed by the Labour Relations of British Columbia at length in Wm. Scott. On p. 3 the Board said:
First of all, under the standard seniority clause an
employer no longer retains the unilateral right to terminate a person’s employment simply with notice or pay in lieu of notice. Employment under a collective agreement is severed only if the employee quits voluntarily, is discharged for cause, or under certain other defined conditions (e.g. absence without leave for five days; layoff without recall for one year, and so on). As a result, an employee who has served the probation period secures a form of tenure, a legal expectation of continued employment as long as he gives no specific reason for dismissal.
I said previously that I am of the view that the Wm.
Scott rationale applies to the refusal of an employer to restore an employee to active employment with the same force as it does to an overt dismissal or demotion. It is inconsistent with the Wm. Scott view of the employer- employee relationship created under a collective agreement to vest in an employer the discretion to dismiss employees in response to the risk that they may injure themselves.
In the final analysis, the only contemporary medical
opinion before me is that of Dr. Kokan. He was made familiar with the grievor’s range of duties and examined him in August after the period of remedial physiotherapy and exercise had been in place for some time. Obviously a risk remains that the grievor will injure himself, but that risk seems manageable with respect to the routine range of duties performed by machine operators. The grievor’s past record indicates an ability to perform his duties without incident for months and even years at a time. Further, the evidence of Dr. Kokan indicates that while the grievor has a back condition that is permanent, he has improved his physical conditioning and has professed an insight into the need to exercise prudence in the type of non-routine task that he takes on.
In that vein, I agree that the grievor, as submitted by
the Railway, professed a measure of bravado about his ability to carry out his duties. The Railway, in response to that perverse machismo, urged that if the grievor is restored to his previous position, his reinstatement should be made subject to the condition that any future time loss caused by a back injury will result in his removal from his position. In that regard the Railway referred to the decision in Canada Post Corporation, @ pp. 404-5, as follows:
It was suggested at the hearing that a reinstatement could be made conditional upon the grievor’s regular attendance in the future. Without laying down any express conditions, a reinstatement in the circumstances of this case carries with it an implied conditionality. The corporation retains its right to terminate for unsatisfactory attendance. If the grievor is unable to maintain satisfactory attendance in the future, the finding I have made with respect to the likelihood of regular attendance in the future will have been in error. In these circumstances the onus upon the grievor of establishing her capability to be regular in attendance a second time will be substantial.
The facts in that case differ from those before me. In
any event, I do not read those comments as imposing conditions of the reinstatement of the grievor. I read them as reflecting the reality of her circumstances and the grave implications that further absenteeism would have on her continued employment.
In this dispute, I am sure that the grievor is aware that
he is vulnerable to back injuries and that if he loses further work time because of a further back injury, he will place his employment in serious jeopardy. That is a reality the grievor must endure and one that will complicate his employment in future years. But, even assuming I have a jurisdiction to impose conditions on the grievor’s future employment, I don’t think I should exercise that jurisdiction in this case.
Any future incident, if any such incident develops,
should properly be assessed in light of the facts then existing. The onus would remain on the employer to establish that the grievor lacked the physical capacity to perform available work. However, I would be doing the grievor a disservice if I left him with any false sense of security. The reality is that any future time loss arising from his physical disability will weigh heavily in assessing the probability of his future ability to perform his duties.
Having expressed that caveat, I conclude that the
Railway failed to establish that its decision that the grievor is unfit to perform the work of a machine operator was a reasonable one. More particularly, the Railway failed to establish that it had just cause to refuse to return the grievor to active employment. In the result, the question posed is answered in the affirmative.
On the question of remedy, the Union urged that the
grievor is entitled to damages for being kept out of employment from September 10, 1986, being the date when Dr. Kokan assessed the capacity of the grievor to return to work in light of a detailed listing of his job duties. I accept the later date, September 10, as an appropriate date upon which to find that the grievor had established prima facie that he was fit to return to his duties.
The refusal of the Railway to permit him to return to
work thereafter entitles him to recover damages on a formula that results in him being placed in the position he would have occupied if the Railway had not breached the agreement by denying him the right to exercise his seniority against machine operator positions. I will leave it to the parties to calculate an amount that reflects the circumstances, including the availability of vacancies, the likelihood of layoff and any other factors that govern whether the grievor would have been working and the amount he would have earned. Included in that consideration should be any benefit or disability income, or any income received by the grievor after September 10, 1986 for which he is not required to account and pay back. If the parties are unable to fix the quantum of damages, I will fix that amount and I will retain jurisdiction for that purpose.
DATED at the City of Vancouver, in the Province of
British Columbia, this 17th day of December, A.D., 1986.
H. ALLAN HOPE Q.C. - Arbitrator