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April 02, 2014
Disability accommodation results in discrimination charge

The Ontario Human Rights Tribunal has ruled in favour of a woman who claimed she was discriminated against due to a disability, despite the fact that the Tribunal agreed that her employer had acted in good faith to accommodate her medical condition.

The case involved a nursing home health care aid who experienced swelling in her skin and legs that prevented her from walking or standing.

While the employer sought to accommodate her disability by considering various light duties for her that did not involve standing, the woman rejected various suggestions, stating that she preferred to do easier tasks, such as assisting with recreational activities like bingo calling.

The employer felt that her expectations were unrealistic.  Working with her union, the employer eventually devised a position whereby she could fold laundry while sitting.

Again, the woman refused to co-operate with the plan, citing her leg pain.  Complicating the problem was her doctor’s medical report and other supporting letters, which were general in nature and listed only the tasks she could not perform, rather than clarifying her physical capabilities.

With no other light functions available, the plan sponsor then notified her to return to work or face termination.  The women refused and again provided a letter from her doctor stating that she could not perform this job.  She was then terminated.

The woman responded by taking her case to the Human Rights Tribunal, declaring she faced discrimination resulting from her disability.  

In reviewing her case, the Tribunal agreed that the employer had acted in good faith in attempting to accommodate her medical condition by offering her an alternative position. However, it noted, while it agreed that her physician’s statements were vague and provided no reason for his assessment, the employer was not qualified to dispute the medical evaluation.  As a result, the Tribunal ruled in favour of the woman and awarded her with damages.

According to the Tribunal, the employer should have asked the woman’s doctor for more information to support his assessment.  This could have been done directly, or through a medical assessment conducted by an independent medical expert.

For plan sponsors, the nursing home case should reinforce the need to actively manage all aspects of short and long-term disability claims.  While, in this case, the employer worked well to find an alternative position for the claimant, it failed to secure specific medical evidence to confirm the severity of her medical condition.   By failing to do that, it allowed the claimant to block their efforts at accommodation, which prevented the establishment of a rehabilitation plan and return to work protocol.

Coughlin & Associates Ltd. offers disability management services that include short and long-term claims adjudication, case management, payment administration, advisory services, recordkeeping, work planning, adjudication appeals management and other assistance.  For more information, contact Coughlin Managed Care Consultant Joe Zadzora at 613-231-2266, Ext. 256, or, toll-free, 1-888-613-1234, Ext. 256, or email jzadzora@coughlin.ca

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