Canadian Occupational Safety

August/September 2014 15 BY JEFFREY R. SMITH WORKERS' COMPENSATION BY JEFFREY R. SMITH COMPENSATION no duty to accommodate if worker unable to work Employee claimed McDonald's didn't participate in return to work a n Ontario McDonald's employee had her employ- ment terminated not because of discrimination from a back injury- related disability but rather because the employer simply couldn't fi nd work for her, the Ontario Human Rights Tribunal has ruled. Cathy Gahagan worked at the grill station of a McDonald's in Lakefi eld, Ont., for seven years. Her duties involved assembling burgers, wrap- ping them and taking them to the front of the restaurant for customers. In May 2009, Gahagan twisted her back while lifting a fi lter pan from underneath the french fries vat. The injury caused her to miss work and she was granted full loss-of-earning benefi ts by Ontario's Workplace Safety and Insurance Board (WSIB). On Sept. 8, 2009, Gahagan's phys- iotherapist informed the WSIB she was beginning an occupational reha- bilitation program that would last for eight weeks. For the fi rst fi ve weeks, she would remain off work and for the rest of the program she could return to work gradually. Two months later, on Nov. 10, a WSIB return-to-work specialist, accom- panied by Gahagan's physiotherapist, went to the McDonald's restaurant where Gahagan was employed to eval- uate the workplace and see whether she could return to work. They informed the co-owner Gahagan had the following restrictions: • no lifting more than 10 pounds • no twisting or bending • no standing for more than 10 minutes • ability to sit for fi ve minutes • ability to work three hours per day, three days per week with a rest day in between. The restaurant's co-owner advised the WSIB specialist this McDonald's was a small restaurant with only 20 staff who couldn't assist Gahagan with her duties. It was a fast-paced environ- ment with no opportunity to rest, sit or take breaks, and he was concerned Gahagan would re-injure herself. The WSIB found the restaurant failed to co-operate in the return-to- work process and sponsored Gahagan for customer service job training and a labour market re-entry plan. At the completion of the plan in August 2011, Gahagan's WSIB benefi ts ended. One month later, she applied for long-term disability (LTD) benefi ts with her insurer. Around the same time in September 2011, Gahagan fi led a human rights complaint accusing the restaurant of discriminating against her by failing to participate in the return-to-work process in November 2009. Gahagan was approved for LTD benefi ts, but didn't receive any because she was already receiving WSIB benefi ts. She also applied for and received a Canada Pension Plan (CPP) disability pension. Shortly thereafter, McDonald's terminated her employment as of Oct. 3, 2011. Gahagan fi led a second human rights complaint alleging McDonald's failed to complete its statement for her LTD application and it unfairly terminated her employ- ment — both constituting reprisals for her initial complaint. The tribunal found McDonald's didn't make any effort to investigate whether it could accommodate Gaha- gan with modifi ed duties or another position that fi t her medical restric- tions. However, the restaurant was able to show she was incapable of performing "the essential duties of her job with accommodation." The limited space in the small res- taurant kitchen didn't allow for a chair to be placed for resting without raising health and safety concerns, and Gaha- gan's physical limitations impeded her ability to do the grill assembly-line process, according to the tribunal. Additionally, the only other pos- sibilities were runner duties — not available at the small McDonald's — or have a job shadow to assist her, something not possible with the small staff and fast pace. Even with the physiotherapist's recommendation of three, three-hour days per week, Gaha- gan wouldn't be able to perform her essential duties, the tribunal found. The tribunal noted the co-owner offered accommodation by having her work at a larger McDonald's in nearby Peterborough, Ont., but Gahagan didn't have a car to drive there. The tri- bunal dismissed her initial complaint that McDonald's failed to accommo- date her return-to-work efforts. The tribunal also found at the time of Gahagan's termination, she hadn't worked for nearly two-and-a-half years. The physical restrictions that she had in 2009 were still in place in 2011. The fact she received LTD benefi ts and a CPP disability pen- sion was telling, since both required "an inability to perform her job and a severe and prolonged disability" and pointed to the likelihood Gahagan couldn't work without accommoda- tion, found the tribunal. The restaurant claimed it had not completed the employer statement for Gahagan's application for long-term disability benefi ts because it received notice of the application after her employment had been terminated. Though the restaurant was incorrect in its assumption that it didn't have to fi ll it out, it corrected itself when it received a second application. There was no evidence supporting the claim McDonald's intended to retaliate against Gahagan by delaying the fi ling of her long-term benefi ts application, according to the tribunal. The tribunal found Gahagan failed to establish any discrimination or reprisal on the part of McDonald's. The complaint was dismissed. "(Gahagan's) real complaint relates to the decision of the WSIB that she was employable in her re-trained occupation of customer service in August 2011 and the termination of her benefi ts as a result of that decision," the tribunal wrote. Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication of COS that looks at workplace law from a busi- ness perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com.

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