AH 461S KRUPER, M.: DISCHARGE

SUPPLEMENTARY AWARD

In the award herein dated January 18, 1999 the Arbitrator directed the reinstatement of the grievor, subject to certain conditions. In that regard the award reads, in part, as follows:

In the result, I am satisfied that this is an appropriate case for a substitution of penalty, although it is not one for an order of compensation. The Arbitrator therefore directs that the grievor be reinstated into his employment, without compensation for wages and benefits lost, and without loss of seniority. As a reinstated employee the grievor shall have full access to such rights as he enjoys in respect of the Company’s duty to reasonably accommodate his disability, to the point of undue hardship, under the terms of the Canadian Human Rights Act, as well as such protections as he may have in a similar regard under the terms of the collective agreement. As a condition of reinstatement, however, Mr. Kruper must accept to undergo any further physical examination or assessment, including any functional ability evaluation or similar test to determine the limits of his physical limitations and the nature of work to which he may be suited. For the purposes of clarity, nothing in this award should be construed as conferring upon the grievor or imposing upon the Company rights and obligations beyond those contained in the Canadian Human Rights Act or the collective agreement. Further, Mr. Kruper should henceforth appreciate the importance of communicating openly with his employer at all times, and of letting his Union be the vehicle to analyse and assert his rights under the collective agreement.

The Brotherhood maintains that the Company has failed to implement the Arbitrator’s award, and that on June 17, 1999 it wrongfully notified the grievor’s union representative that Mr. Kruper would not be reinstated into employment with CN. The Brotherhood’s position is that the grievor did everything necessary to comply with the Arbitrator’s award for the purposes of obtaining an assessment with respect to his physical capacity to work. It maintains that his attendance at an evaluation and rehabilitation session over the period March 2 to 30, 1999 was fully in compliance with the Arbitrator’s direction, and that Mr. Kruper was properly found medically fit to perform sedentary to light duties.

The letter advising the Brotherhood of the Company’s decision reflects the employer’s view that the assessment of Mr. Kruper, done for the Company by the Gross Rehabilitation Centre in Edmonton, is not conclusive of the grievor’s physical condition, by reason of his own failure of cooperation. In that regard the letter, issued by Vice-President, Pacific Division, D. Edison reads, in part, as follows:

In line with the Arbitrator’s award, Mr. Kruper attended the Gross Rehabilitation Centre in Edmonton from an assessment date of March 2, 1999 to a final date of attendance of March 30, 1999.

The discharge report dated March 31, 1999, as well as a letter written by WCB to Mr. Kruper dated May 13, 1999, were provided to MedCan for review as the final step in the reinstatement of Mr. Kruper.

As a result of these reports, Dr. M. Fogel, MedCan Medical Director, referred Mr. Kruper’s medical file to Dr. C. Lapierre, CN Chief Medical Officer for his medical opinion, as Dr. Fogel had concerns regarding the validity of the Functional Capacity Evaluation performed by the Gross Rehabilitation Centre.

Subsequently, Dr. Lapierre reviewed Mr. Kruper’s medical file and provided the Company with his medical opinion dated June 11. 1999.

In his letter, which is attached for your reference, Dr. Lapierre states the following:

Recently, I received a letter from Dr. Fogel dated June 3, 1999. In his letter, Dr. Fogel is of the opinion that “Mr. Kruper’s lack of cooperation seriously impairs the validity of any functional capacity evaluation and renders a fair assessment of fitness for duties next to impossible.

I made a complete review of Mr. Kruper’s CN medical file and I fully concur with Dr. Kent’s and Dr. Fogel’s opinions that the functional capacity evaluation performed by the Gross Rehabilitation Centre is not valid and that its conclusion is not receivable. To be valid, functional capacity evaluation requires the full cooperation of the assessed individual, which has not been the case with Mr. Kruper. Consequently, CN cannot appropriately determine the exact functioning level of this employee.

It is the Company’s position that Mr. Kruper has failed to comply, in good faith, with the full conditions of his reinstatement as outlined in the Arbitrator’s award, therefore Mr. Kruper will not be reinstated into employment with CN.

With respect, the Arbitrator has some difficulty with the conclusions drawn by the Company. Firstly, it should be stressed that the type of process anticipated by the Arbitrator’s award was solely to do with the grievor’s physical limitations. The award did not anticipate Mr. Kruper being compelled to follow a one month program of rehabilitation or work hardening, as in fact occurred. Evidence before me, in a scholarly article entitled “A Critical Review of Functional Capacity Evaluations”, King, Tuckwell and Barrett (Physical Therapy, Vol. 78, No. 8, August 1998) confirms the general understanding that functional capacity evaluations (FCEs) are generally performed in a relatively short session of two to four hours, although some professional opinion suggests that a more extended two-day format is preferable (King, Tuckwell and Barrett at p. 862). For reasons which it best appreciates, however, the Company required the grievor to follow a four to six week program which, although it included an FCE, also involved rehabilitation and work hardening elements.

The concerns of the Company stem from the psychological findings of the report of the Gross Rehabilitation Centre, authored by Registered Nurse Ardith Fricke, Clinical Coordinator of the program. While the report contains extensive information and assessments with respect to such factors as the grievor’s cardiovascular capacity, flexibility, muscular strength and endurance, and functional tolerances in respect of sitting, weight bearing, walking, climbing, low level work, over the shoulder work, grip strength and manual handling, it also includes the following comments with respect to the observations of the psychologist who dealt with Mr. Kruper:

In the psychologist’s professional opinion, the significant factor making successful rehabilitation unlikely at present is Mr. Kruper’s own inability, when directly asked, to be able to articulate a level of function he can maintain in the day-to-day and, at the same time manage his pain. … He reports he expects that at work, once he is put in a situation that has been deemed manageable, the employer will change that situation to make it unmanageable, and then tell him that it is still the same situation. This, according to him, is part of a larger strategy to force him out of his job. It is therefore understandable, given his belief, that articulating a level of activity he can sustain would only hasten his unemployment leads to difficulty providing this information. His inability to be forthcoming in terms of what he can manage and his difficulty helping others to determine his functional limits coupled with the highly adversarial nature of his past relationship with work, needless to say, makes it difficult to work appropriately with this man. Perhaps resolution of this case will only occur when he provides a current clear functional limits provided by a medical expert of his choice and whose views he can support. (emphasis added)

The report nevertheless does provide conclusions with respect to the grievor’s physical limitations. Apart from more detailed tolerances listed under the headings cited above, the discharge summary states, in part:

In conclusion, Mr. Kruper attended the Gross Clinic completing twenty-one treatment days of rehabilitation inclusive of the assessment date. At discharge, Mr. Kruper is assessed as at a sedentary to light level function.

During the course of the proceedings counsel for the Brotherhood questioned whether the information contained within the Gross Rehabilitation Centre’s report is properly admissible before the Arbitrator, to the extent that it was also provided to the Workers’ Compensation Board. In that regard reference is made to Section 141(3) of the Workers’ Compensation Act of Alberta which protects the confidentiality of information gathered for the purposes of a review or appeal. The Act provides, in part, as follows:

141 (3) Notwithstanding subsections (1) and (2) and section 29(3), where a matter is being reviewed or appealed under section 40 or 116,

(a) the worker, or the worker’s personal representative or dependant in the case of the death or incapacity of the worker, or the agent of any of them, and

(b) the employer or his agent

are entitled to examine all information in the Board’s files that is relevant to the issue under review or appeal, and those persons shall not use or release that information for any purpose except for the purpose of pursuing the review or appeal.

While it would appear that while the Gross Centre report was provided to the Workers’ Compensation Board, it is not disputed that it was independently commissioned by the Company for the separate purpose of the Company’s own assessment in furtherance of the Arbitrator’s award herein. On that basis, I am satisfied that it would be admissible in these proceedings. Indeed, any other conclusion would border upon the absurd, as the report is critical to the case of the Union, which tabled it in evidence. The Brotherhood apparently advances its paradoxical objection based on concerns expressed by Mr. Kruper’s wife in correspondence with the WCB.

Secondly, while I need not rest my decision on this basis, it is doubtful that the provisions of a provincial statute in relation to internal Workers’ Compensation Board procedures can bind or fetter the evidentiary rules of a tribunal which has the powers of a court of record, exercising jurisdiction under a federal statute. Finally, having regard to the purpose of the wording and provisions of the Workers’ Compensation Act of Alberta, I would not be inclined to find that the scope of the prohibition contained therein is so broad as to prohibit the admission of such materials, assuming their relevance and probative value, before a properly constituted tribunal, be it of federal or provincial jurisdiction. The Act limits the use or release of certain information by the worker or the employer, without consent, under pain of prosecution and fines. It does not purport to amend the general law of evidence in civil or criminal proceedings, as I believe it could not. Indeed, documents relating to WCB reports are commonly adduced in evidence in arbitration hearings, in my view quite properly, as essential to the issues in dispute. For the foregoing reasons I am satisfied that the material in question if fully admissible in these proceedings, and that it must be admitted as the best and most probative evidence relating to the conditions of the award of January 8, 1999.

Fundamentally, the Company appears to take the view that the grievor is malingering, or at best exaggerating his physical disabilities. To that end it notes the findings of Dr. J.R. Huckell, a specialist in orthopaedic surgery who examined the grievor on March 16, 1998, apparently as part of a WCB evaluation. The conclusions of that report include the following comment, “I do not really believe there is enough aggravation of the previous injury … to explain his ongoing symptoms. His pain symptoms are not consistent with objective findings.” Stating that the grievor’s symptoms were “unduly prolonged”, Dr. Huckell recommended a work hardening program with a return to full duties within three to six weeks, closing with the comment: “His complaints have carried on unduly long and are not supported by objective findings.”

In the Company’s view the same theme emerges in the findings of the Gross Rehabilitation Centre. For example, in part, it points to the portion of the report dealing with grip strength where the technicians detected a significant change between the grievor’s initial assessment on March 2, 1999 and a re-testing some twenty-seven days later. The change, described as two standard deviations within the general population, are characterized as a significant improvement with the comment: “This change does not clinically correlate with Mr. Kruper’s subjective complaints of pain or injury site …”. The Company also points to parts of the report which indicate that there was a pattern “not indicative of maximum voluntary effort” on the part of the grievor during certain of the assessment exercises.

Following his assessment at the Gross clinic Mr. Kruper was examined by Dr. Peter Kent, a medical consultant with MedCan/CN, the Company’s occupational health service for Western Canada. Dr. Kent wrote to Dr. M. Fogel, Medical National Director, on May 28, 1999, stating in part as follows:

While both the Canmore Pain Clinic and Gross Rehabilitation Centre found him fit for sedentary to light employment, the fact that both assessments noted that he had not been cardiovascularly challenged to his maximum ability raises the issue of whether or not his work capacity is greater than sedentary to light.

By letter dated June 3, 1999 Dr. Fogel, who did not examine Mr. Kruper, noted to Dr. Kent that he had reviewed the medical file forwarded to him. He records his concern “… that Mr. Kruper did not demonstrate “ideal commitment” to his rehabilitation programs as evidenced by reaching the equivalent of only 70% of his function cardiovascular capacity during his cardiovascular assessments despite daily exercise therapy.” He notes that the conclusions of the Gross Rehabilitation Centre were based primarily on subjective pain complaints rather than on objective medical findings, stressing Nurse Fricke’s observations that the grievor appeared to display attitudinal problems with respect to communicating his functional limits. Dr. Fogel concludes in part: “I am left with an uneasy feeling that Mr. Kruper’s lack of cooperation seriously impairs the validity of any functional capacity evaluation and renders a fair assessment of fitness for duty next to impossible.” Dr. Fogel did not hesitate to go further, and in his final paragraph, which quotes in part the Arbitrator’s award of January 8, 1999, asserts the conclusion “It is my opinion that Mr. Kruper has demonstrated, through his attitude and non-cooperation, a refusal to undergo a proper functional ability evaluation. As such, in my opinion, Mr. Kruper has failed to meet the condition of reinstatement required by [Arbitrator] Picher.” Dr. Fogel’s opinion was ultimately shared by Dr. Claude Lapierre, the Company’s Chief Medical Officer. His own conclusions in that regard are reflected in his letter of June 11, 1999 reproduced, in part, above.

Having carefully reviewed the documentation, and with the greatest respect to the medical professionals involved, the Arbitrator has fundamental concerns with the conclusions drawn by the Company. Firstly, it should be stressed that there is nothing within the report of the Gross Rehabilitation Centre itself which suggests that the assessing institution concluded that it was unable to make a proper and competent assessment of Mr. Kruper. Significantly, Drs. Kent, Fogel and Lapierre appear to draw negative inferences from that portion of the report which notes that the work output of Mr. Kruper was the equivalent of 70% of his functional cardiovascular capacity, and that he therefore was “not cardiovascularly challenged” during completion of the cardiovascular assessment exercise. However, it appears that there is at least some professional opinion which would hold that the 70% level of output is more appropriate than a more challenged level during such an assessment. At p. 863 King, Tuckwell and Barrett note that on the very issue of a subject’s effort, one authority says it is best not to require the client “to exceed a cardiovascular effort of 65% of their predicted maximum heart rate.” (Matheson, L.N., “How Do You Know That He Tried His Best? The Reliability Crisis in Industrial Rehabilitation” Industrial Rehabilitation Quarterly 1988; 1:10-12.) In light of the foregoing, and having regard to the language of the report provided by the Gross Rehabilitation Centre, it is less than clear to the Arbitrator that in fact the clinic did not deliberately maintain the grievor at the equivalent of 70% of his functional cardiovascular capacity, in keeping with what appears to be a recognized school of professional opinion.

Nor, with respect, does the Arbitrator share the view of the doctors with respect to the meaning of the observations contained within the psychology summary as reported by Nurse Fricke. Reading those comments carefully makes it clear that they are directed not to the issue of malingering, but to the issue of the conditions for successful rehabilitation. While the observations contained in the report do speak to the difficulty of people working with Mr. Kruper in assessing “what he can manage” for the purposes of assessing his functional limits, there is no suggestion within that paragraph that he does not in fact have genuine physical limitations, which ultimately justify the clinic’s diagnosis to the effect that the grievor is assessed at a sedentary to light level of function. Indeed, the premise of Nurse Fricke’s comments is that Mr. Kruper does have such limitations, and the concern expressed is for psychological conditions more conducive to successful rehabilitation.

What, then, does the objective evidence disclose? In the Arbitrator’s view it is clear that Mr. Kruper did cooperate for the purpose of implementing the award of January 18, 1999. While his Union representative took objection to his being subjected to a full one-month rehabilitation program, (a measure plainly beyond the intention of the award) it appears that he and his bargaining agent eventually acquiesced in that process. The sole concern in the Arbitrator’s award was to have a determination of the grievor’s physical limitations. That, in my view, was achieved and is properly reflected in the report of the Gross Rehabilitation Centre. There is no conclusion within that report that the grievor was not properly assessable, although, as noted above, there is some discussion of the difficulty of working with him because of his problems of communication. The only objective evidence of inconsistency between his subjective symptoms and objective readings found in the report concern the apparent change in his grip strength readings over a period of twenty-seven days. I cannot find that that, standing alone, negates the overwhelming balance of the report which contains a relatively precise conclusion as to the grievor’s physical limitations.

For the foregoing reasons the position of the Brotherhood is sustained. The Arbitrator directs that Mr. Kruper be reinstated into his employment, subject to reasonable accommodation to the point of undue hardship, as determined following consultation between the parties. I retain jurisdiction in respect of any issue of compensation, or any further matter which may arise concerning the interpretation or implementation of this award.

Dated at Toronto, November 15, 1999

(signed) MICHEL G. PICHER

ARBITRATOR