An Ontario municipality has been ordered by an arbitrator to accommodate an injured ambulance attendant despite potential risks presented by his medical limitations.
Glen Cunnane worked as an ambulance attendant in Brant County, Ont., starting in 1995 and becoming and advanced care paramedic in 2002. As part of the job requirements, the county specified that attendants had to be able to lift up to 60 kg, with most situations involving 24 to 40 kg of frequent lifting of patients and carrying stretchers and stair chairs. The established minimum physical demands were 77 pounds for arm and shoulder strength and 51 pounds per arm for carrying patients.
On Oct. 24, 2010, Cunnane stumbled on some stairs while on a call and injured his right foot, left hand and left shoulder. A medical assessment determined he had restrictions on walking, standing, stair climbing, ladder climbing and repetitive bending or twisting. He was also limited in using his left arm, including no lifting from floor to waist, and he could not lift more than 40 pounds.
On Dec. 23, 2010, Cunnane was cleared to be part of a three-person ambulance crew, though such crews were generally unnecessary. He asked for accommodation so he could maintain his paramedic skills, but the county denied his request as it felt there would be a risk of aggravating his injuries on calls from dangerous patients or a need to lift something heavy. It felt it was obligated under the Ontario Occupational Health and Safety Act to protect his safety and offered Cunnane other modified duties until he was given clearance to return to regular paramedic duties with no restrictions.
The arbitrator found that it was unlikely Cunnane would have to do any heavy lifting while part of a three-person ambulance crew. The evidence showed that most situations only required two paramedics to lift a patient and in most cases, they could get assistance from other emergency personnel at the scene. As a result, the risks the county were concerned with were mostly potential risks that were only the result of speculation as opposed to real risks.
The arbitrator also found there are certain risks inherent to the paramedic job and Cunnane should be permitted to assume those risks to be accommodated. Some risk was not enough to refuse accommodation, said the arbitrator.
“Where a disabled employee can be appropriately accommodated in a position where potential risk exists, the potential for risk does not, in and of itself, prevent that person from exercising his or her rights under the Human Rights Code. In the instant case, there is no objective evidence before me concerning the frequency with which paramedics suffer injury as a result of the inherent risks associated with performing their duties. This is not to say that deciding on the matter at hand rests on some form of statistical evidence, rather, there is no evidence before me to establish that the potential for risk translates into actual risk, or direct threat of risk so as to conclude there is a greater probability of risk to (Cunnane) in riding third in an ambulance and performing all other paramedic duties than lifting.”
For more information see:
· Brant (Country) v. OPSEU, Local 256, 2102 CarswellOnt 2856