Employer’s request for independent examination based on lack of medical information about worker’s prognosis, not the disability itself
When an employee has a mental disability, it can be tricky for an employer to know when accommodation is needed or, if the employee is off work, when the employee is coming back. However, employers have a right to sufficient information that will give them an idea of an employee’s prognosis and likelihood of coming back to work.
The suspension of a British Columbia worker’s sick benefits and the delay of long-term disability benefits was a result of miscommunication and clumsy handling of the circumstances by both the worker and the employer and wasn’t based on the worker's mental health issues, the B.C. Human Rights Tribunal has ruled.
Kenneth Morris joined the British Columbia Public Service Agency (PSA) in June 2004 as a disability case management specialist. He eventually moved to the position of early intervention and return-to-work specialist, which, according to the job description, required “analytical and conceptual thinking, problem solving/judgment, results orientation, team work and co-operation, and service orientation.” His duties included offering solutions to different provincial government agencies on disability management and working with different teams.
Morris was considered a good worker who could be trusted and got along well with colleagues. As he gained experience with PSA, the received cases that were more difficult than some of his colleagues.
However, things changed in November 2014, when the director of his team claimed he saw Morris and another PSA employee discussing non-employment related matters for two hours while at work. The director called a meeting with the two employees and accused them of time theft.
Morris said he was shocked at the allegation and he went into a dissociative state at the meeting. As the PSA instigated an investigation, Morris began suffering from medical problems and sought medical assistance from his wife’s doctor. The doctor filled out a health update form that diagnosed anxiety and sent one part to PSA and another confidential portion to the third-party administrator of PSA’s short-term injury and illness plan (STIIP).
The STIIP was a “no-fault” plan and only required employees to demonstrate they were unable to work due to illness to be eligible for benefits. Employees had to provide medical evidence of their inability to work if they were absent for more than six consecutive days of work, a pattern of absences developed, or 30 days had elapsed since the previous medical statement while the employee was still receiving benefits. PSA would also reimburse one-half the cost of any required medical assessments outside of the health update form.
The STIIP and long-term disability (LTD) plan also gave PSA the right to appoint its own doctor to examine employees claiming benefits.
Still suffering from his mental health issues in December 2014, Morris submitted a second health update form that stated it was unknown when he would be able to perform his full duties without modifications and had limitations — Morris had difficulties concentrating, anxiety, fatigue, difficulty remembering things, and was sleeping poorly.
Morris submitted a third health update form on Jan. 29, 2015, which stated his anticipated length of absence would be less than one month and the recommended employment modifications were that he shouldn’t return to his previous worksite and he should work from home until the investigation into time theft was complete.
Return-to-work trial unsuccessful
Morris began a return-to-work trial on Feb. 23, 2015, after he was cleared for modified duties. However, his symptoms were aggravated by a denial of his workers’ compensation claim and the results of PSA’s internal investigation into his STIIP eligibility. On the second day of the trial, he told his supervisor he didn’t think it was going to be successful.
On Feb. 26, the supervisor observed that Morris seemed to be enjoying his work and was becoming more responsive, though he was fatigued at the end of the day. By the end of the second week of the trial, Morris said he was suffering side effects from his medication, his wife was having medical problems, and he needed to “step back.” He called in sick on March 9 and 10 due to a chest and sinus infection and said his doctor felt he had returned too soon.
The supervisor was surprised as she felt the trial had been going well, but PSA didn’t follow up with Morris’ doctor. On March 24, Morris told her the time-theft investigation was full of inaccuracies and he didn’t feel valued as an employee.
PSA felt the return-to-work trial had gone well and asked Morris to attend an independent medical examination (IME). Morris said he and his doctor were unsure about an IME and the doctor had referred him to a psychiatrist.
On April 29, PSA informed Morris that it didn’t have enough medical information to know if he was still eligible for the STIIP because his return-to-work trial had gone well in its view and he had been denied workers’ compensation benefits. It asked him again to undergo an IME by a doctor it appointed on May 19 and if he didn’t confirm he would go by the next day, his STIIP benefits would be suspended.
Worker not happy about request for examination
However, Morris was scheduled to go on a one-week cruise with his wife two days later, so he became stressed in trying to schedule an appointment with his doctor to discuss the IME within that time frame or face losing his STIIP benefits. He responded by saying it was unreasonable to request he undergo an IME prior to a review of all medical information that was available to assess future limitations and restrictions. He also said his doctor believed that “further psychiatric investigation is unhelpful.”
PSA received a new health update form from Morris’ doctor that indicated Morris had a major depressive disorder and he would be passing along a psychiatrist’s consulting report. It also stated Morris’ anticipated return-to-work date would be “sometime in the next 6-12 months.” However, by May 8, PSA hadn’t received the report and it suspended Morris’ STIIP benefits, 20 days before the completion of his entitlement and the start of LTD benefits. In a letter to Morris, PDA said it had reason to consider his absence as based on a workplace dispute. While the agency accepted Morris had a medical condition, it didn’t know how disabled he was and wanted an objective assessment from an IME given the new return-to-work date was so far away.
Morris replied that he had never refused an IME, but only had concerns over the objectivity of who was doing it. He said he could provide further information if necessary, but felt he was being set up. PSA recommended psychiatrists for an IME, but Morris didn’t attend because he wasn’t feeling stable and his doctor didn’t support it. Morris also didn’t believe the STIIP terms authorized an IME.
PSA cut off Morris’ extended health care benefits at the end of May and he filed a human rights complaint, claiming PSA discriminated against him on the basis of his mental disability when it suspended his STIIP benefits, denied him LTD benefits, and requested he attend an IME against his doctor’s advice and without asking his doctor for additional information.
In September, Morris provided a medical questionnaire completed by his doctor that indicated Morris was still suffering from a “major depressive episode” and his restrictions and limitations were related to cognitive ability. His prognosis was unknown, but “his intellect allows him to cover his real state of function” and his “antipathy likely represents a deterioration of his mental state." After receiving this information PSA reinstated his health care benefits and STIIP benefits. Morris was then able to receive LTD benefits.
The tribunal agreed that Morris had a mental disability and he experienced an adverse impact when PSA suspended his STIIP, which in turn led to a delay in receiving LTD benefits. In addition, when PSA pressured him to attend an IME and aggravated his anxiety, Morris was subjected to adverse treatment, said the tribunal.
However, the tribunal found that PSA’s continuing requests for an IME were not discriminatory. They weren’t based on Morris’ disability, but rather an honest belief that PSA needed more information, since Morris was cleared for modified duties in February 2015 but his return to work was later aborted and his eventual return date was six to 12 months later. PSA “had good reason to have concerns” about the medical information it had, said the tribunal. In addition, while Morris and his doctor expressed concerns about the impartiality of the IME, it wasn’t made clear why an IME would be detrimental to Morris’ health.
Ultimately, it was poor communication — and a few mistakes by both sides — that led to PSA’s requests for an IME, its lack of satisfactory medical information, and the eventual suspension of Morris’ STIIP benefits, not any discriminatory reasons, said the tribunal. As a result, there was no nexus between Morris’ disability and the adverse impact of his benefits cessation.
“These are not issues related to discrimination,” said the tribunal in dismissing the complaint. “Rather, they are employment-related procedural issues which I find fall outside the scope of the (B.C. Human Rights Code) and which properly should be addressed through other avenues, including possibly arbitration or civil procedure.”
For more information see:
• Morris v. Ministry of the BC Public Service Agency, 2018 CarswellBC 2762 (B.C. Human Rights Trib.).
