An employee whose medical condition had improved both before and
after termination has been reinstated for further consideration of
possible accommodations, after an arbitrator relied on a
doctor's assessment done after dismissal.
The employee was 67 years old and had been away from work for 14
months when dismissed after 18 years of employment. He had
undergone surgery, 14 months before his dismissal, for buildup of
plaque in his arteries. Cognitive deficits were noted during
his recovery period. About 11 months before his dismissal, a
doctor who worked for the employer's contracted health services
provider, found that he had "slow speech, slow processing,
slow thinking". Two months later another doctor found
that, in contrast with the previous doctor's assessment, the
employee had "continued to improve both physically and
cognitively". Two months later, a neuropsychological
assessment concluded that it was "unlikely that [the employee]
will be able to safely return to work" in his position.
Two weeks before the employee's dismissal, the
employee's family doctor provided a report recommending that
the employee be provided with "a gradual return to work"
because he was not "totally disabled from all work
duties". The doctor asked that the employee be
accommodated in a sedentary position.
The arbitrator admitted, into evidence, another
neuropsychological assessment, by a different specialist, conducted
a few months after the employee's termination, which found that
the employee had recovered and did not have "Vascular
Cognitive Impairment" which the previous neuropsychological
assessment had presumed. The new assessment, although
conducted after termination, was relevant because it was consistent
with pre-termination assessments which had shown some
improvement. The employee's condition at the time of
termination was unclear until the post-termination assessment
report was received.
The arbitrator therefore determined that the employee's
condition had improved at the time of termination and it was not
reasonable to conclude that there was no reasonable prospect of the
employee being able to regularly attend work. The arbitrator
reinstated the employee for the purposes of having his condition
considered by a "Joint Medical Placement Committee" which
was provided for in a letter of understanding between the employer
and the union.
In a subsequent decision handed down after the Joint Medical
Placement Committee considered the employee's situation, the
arbitrator decided that it would cause undue hardship to put the
employee back into the workplace. In particular, an
Occupational Therapist had concluded that the employee:
"is not suited for safety sensitive work. In my
opinion, Mr. Voykin should not be placed in any jobs that require
attention to detail, correct and quick responses to information
and/or dividing/alternating attention between two or more
Adaptations or accommodations would not allow him to
compensate for these difficulties...."
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