The Conundrum of Conflicting Medical Evidence

Written by Daniel Standing, LL.B., Editor, First Reference Inc.

In 2023 CanLII 13643 (CALA), arbitrator Graham J. Clarke examined the question of conflicting medical evidence in an accommodation matter and determined the employer was wrong to have ignored the employee’s evidence while preferring that of its own doctor. The outcome was to send the parties back to the drawing board, illustrating how tricky it can be for the employer to make the right choice when the medical evidence points in opposite directions.

Background

The employee held a unionized safety-sensitive position in a railway company. While on an unrelated medical leave, the employee suffered a seizure. His physician assessed him as having no restrictions that were relevant to his position, including his safety-sensitive duties, and recommended a return to full duties after a four-week period of gradually increased hours.

When this assessment and the supporting medical documents made it into the hands of the employer’s corporate physician, the doctor reached a startlingly different conclusion about the employee’s fitness to work, stating he was at risk of having a sudden and unpredictable impairing event and therefore should be restricted to “non-operational” duties, meaning no driving or operating machinery, working alone, working at heights or working anything other than a regular shift in an office environment.

Over the union’s protestations, the employer began its search for accommodation based on its own doctor’s assessment, eventually settling on a sedentary position in a different bargaining unit that paid less than the employee’s regular rate.

The employee and union grieved, calling the employer’s approach arbitrary and discriminatory.

What the arbitrator decided

The arbitrator began his analysis by stating the legal requirement for a tripartite process in accommodation matters. He stated the focus is on the entire process, including the union’s help, the employee’s actions and the employer’s pursuit of a reasonable accommodation.

Focusing on the conflicting medical evidence, the arbitrator found himself unable to resolve the impasse. He stated that doctors, like lawyers, can reach divergent conclusions on the same facts and that more needed to be done to investigate the contradictions. To illustrate what more the employer could have done, the arbitrator rhetorically questioned why the employer never followed up with the employee’s physician, and why an independent medical examination was never explored. It was wrong, he said, for the employer to create restrictions for the employee without first resolving the contradictions in the medical evidence.

Had it followed the tripartite process, it may have learned that the employee could be accommodated in his regular position with some restrictions. The arbitrator said that as it stood, the employer’s approach was to suggest the employee couldn’t do every aspect of his job, which isn’t how accommodation works. It should have undertaken a more extensive individualized assessment of the employee’s abilities and restrictions.

The employer’s failure in this regard resulted in the employee’s reinstatement to his usual position “at least on paper,” allowing the parties to complete a proper duty to accommodate analysis.

Takeaways

Faced with diametrically opposing medical opinions, it’s understandable why an employer might prefer the one provided by its own expert. But the accommodation process doesn’t merely allow the employer to pick the opinion it likes best; the tripartite process is one of collaboration, meaning the employer is obligated to seek clarification of the employee’s medical evidence if it has lingering concerns about its accuracy.

The process calls for a highly individualized approach that might require extensive digging for information and requests for clarifications before deciding on an accommodation. A failure to do this could well spell a failure to properly accommodate an employee, as occurred in this case.