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					IN THE PROVINCE OF NEW BRUNSWICK

IN THE MATTER OF THE PUBLIC SERVICE LABOUR RELATIONS ACT, RSNB c. P-25

AND IN THE MATTER OF A REFERENCE TO AN ADJUDICATION



BETWEEN:



     Canadian Union of Public Employees, Local 4848
     on behalf of George Bunting

                                                                          Grievor


                                        - and -


     Her Majesty in right of the Province of New Brunswick
     as represented by Board of Management
     on behalf of Ambulance New Brunswick
                                                                          Employer



                                       AWARD


DATE OF HEARING:         April 28, 2009
                         at Fredericton, New Brunswick


APPEARANCES:             For the Union            -   David Perkins
                         For the Employer         -   Michelle Brun-Coughlan, Esqe.

ARBITRATOR:              G.L. Bladon

DATE OF AWARD:           May 29, 2009
1.     This grievance concerns the extent of medical information an employer may require of an

employee following a mishap in the workplace.



BACKGROUND

2.     The grievor is a 47 year old paramedic.        He began his career in Miramichi, New

Brunswick in 1988 and continued with River Valley Health in Fredericton from 1990 to the

present. His responsibilities include patient transport and emergency scene attendance. When

ambulance services in New Brunswick became the responsibility of the province in December of

2007, the grievor‟s employer became Ambulance New Brunswick.



3.     The grievor has suffered from rheumatoid arthritis since 1993. This has resulted in a

double hip replacement in 1995 and a surgical revision in 2007. Generally, his condition is

controlled by medication. On April 22, 2008, an incident occurred when the grievor and his

paramedic partner were in the process of placing a patient on a stretcher. The grievor‟s evidence

was that the undercarriage of the stretcher did not release and in putting the stretcher down, the

grievor thought it was on the pegs and let go – in fact the stretcher dropped about two inches

before reaching the support pegs. The patient was unhurt, as was the grievor, but the grievor‟s

partner sustained a low back injury. The partner filed a report of the occurrence. As a result, the

grievor, who was finishing the fourth day of a four day on/four day off shift, was told to remain

off work until the matter could be investigated.



4.     John Nicholson, the Ambulance New Brunswick Operations Manager who has known the

grievor for 17 or 18 years, testified that the grievor‟s arthritic condition was common knowledge




                                                                                                 2
in the workplace as was his hip surgery. Nicholson gave a brief and surprisingly undocumented

history of the grievor‟s recent medical problems and related absences from the workplace: he

said the grievor sustained either a shoulder dislocation or broken shoulder early in 2007, which

did not require surgery and the grievor returned to work for about two to three weeks. With the

hip surgical revision coming up, Nicholson suggested that the grievor take time off to allow the

shoulder injury recovery to overlap with the recovery from the hip surgery. The grievor returned

to work in June of 2007 until he suffered a spontaneous hip dislocation and was off work for “a

few weeks”. He then returned to work in August of 2007, but was again “put off work with pay”

in September of 2007 because of concerns management had over his ability to perform his job,

and whether accommodation was required. Nicholson indicated that during this period the

grievor was asked to undergo a physical job suitability assessment which Nicholson said the

grievor refused. Consequently, the grievor was “put off work without pay” for four to six weeks

prior to December 17, 2007.



5.     On December 17, 2007, ambulance services in New Brunswick were restructured. The

province assumed responsibility from private contractors and all employees of the private

contractors, including the grievor, were offered jobs with the province. As a result, the grievor

returned to work with Ambulance New Brunswick without the job suitability assessment. In

“late January or February, 2008” the grievor sustained a hip dislocation off site. Following a

“two to three week absence”, he returned to work until the April 22, 2008 incident.



6.     Nicholson testified that the grievor “could do the [paramedic] job”. There had never

been a complaint about his performance on the job.




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7.     Shortly after April 22, 2008, the grievor, in response to the employer‟s request, produced

an undated medical note from the orthopaedic surgeon responsible for his hip surgery. It reads:

“Return to work when ready”. The grievor said he could not recall whether he got the note

before or after April 22, 2008. In any event, it did not satisfy the employer and as a result the

Human Resource Consultant, Natasha Morehouse, wrote to the grievor on April 30, 2008:

       Dear Mr. Bunting:

       This is further to your medical note from a doctor simply stating “return to work
       when ready” and the recent incident that occurred on April 22, 2008 at the
       dialysis unit in Fredericton, NB, where you were unable to lift the stretcher with
       a patient on it resulting in the patient and stretcher dropping to the floor.

       In light of the circumstances and in light of this bare minimum medical note, we
       require additional medical information from you to justify your ability to perform
       EMT duties. In particular, in order to determine whether you may be able to
       perform some of your duties or other duties provided by Ambulance NB in order
       to accommodate any condition.

       We will require an up-to-date report from the attending physician to include the
       following:

                      the limitations and restrictions imposed by the condition; and,
                      details of how the condition affects your ability to perform the
                       duties of your regular occupation (to this end, we attach a list of
                       main job duties regularly assigned to your position).

       This letter must be from a practicing physician and should be forwarded to us no
       later than Friday, May 9, 2008 and provided to myself. Please be assured that
       this medical information will be kept strictly confidential.

       While we certainly sympathize with any condition that you may suffer, we trust
       that you will also understand Ambulance NB‟s interest in having our employees
       be capable of providing services in order to meet our client‟s standards.

       We look forward to hearing from you.


At the end of the letter, the employer lists the job duties of the grievor:

       “Main Job Duties Regularly Assigned to Mr. George Bunting:

               1. Assess and manage health crisis/accident scenes recognizing and
                  providing basic management of medical emergencies;




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               2. Extricate (safely remove) patients and use appropriate packaging and
                   transport techniques;
               3. Use lifting and moving techniques (biomechanics) essential to
                   appropriate patient care and own safety;
               4. Perform rapid triage, abbreviated clinical assessments and
                   appropriate treatment in management of trauma patients;
               5. Perform chest auscultations, maintain the patency of the upper
                   airway, perform basic management of breathing dysfunctions;
               6. Administer cardiopulmonary resuscitation (CPR);
               7. Provide appropriate psychological support and use appropriate
                   management techniques for patients undergoing emotional and/or
                   mental health crises;
               8. Perform primary and secondary patient surveys, and take, record,
                   and communicate patient histories;
               9. Initiating intravenous therapy including peripheral venipuncture, IV
                   fluid administration and rate calculation, and the use of pressure
                   infusion techniques; and,
               10. Maintain and operate ambulances and related equipment in
                   accordance with patient needs and public safety.


8.     The grievor took the employer‟s April 30, 2008 letter to Dr. Jamie Henderson, a

specialist in arthritic care and the grievor‟s treating physician since 1993. The doctor‟s written

response, dated May 5, 2008, reads:

       This will certify that I am the Rheumatologist supervising the care of this
       gentleman who has [had] rheumatoid arthritis since 1993.

       I last saw Mr. Bunting on March 17, 2008 and I have no hesitation in stating that
       he does not require any modifications to his work place in order for him to
       continue his occupation with ANB.

       If you require further information, please do not hesitate to contact my office.


9.     The doctor‟s response did not satisfy the employer because it makes reference to seeing

the grievor on March 17, 2008, approximately a month before this incident, and there was “no

statement of restrictions and modifications.”       Morehouse wrote to Dr. Henderson on May 13,

2008. The letter reads in part:

       I am writing to request clarification of your letter, as you indicated should I have
       any questions to contact you. You expressed that you have no hesitation in
       stating that he does not require any modifications to his work place in order to




                                                                                                5
       continue his occupation with Ambulance NB (ANB) and that you saw Mr.
       Bunting on March 17, 2008.

       I respect your assessment of this situation, but would like to know the limitations
       and restrictions imposed by Mr. Bunting‟s condition and details of how the
       condition affects his ability to perform the duties of an EMT (to this end, we
       attach a list of the main job duties regularly assigned to Mr. Bunting‟s position).


This resulted in a voice message left for Morehouse from Dr. Henderson indicating that a release

of medical information was required for further disclosure of his patient‟s medical status.



10.    Morehouse sent a release form to the grievor on June 5, 2008 requesting his completion

of the release and its return. The release reads in part:

       “I hereby give my permission for a representative of Ambulance NB to have
       access to any records you may have on my file, as well as any special treatment
       record.

       The information received will be protected by Canada’s Privacy Act from
       disclosure to unauthorized persons.”


Bunting refused to sign the release saying the questions raised in the employer‟s letter of April

30, 2008 were answered by the Doctor‟s response of May 5, 2008.



11.    The employer then sought to have the grievor examined by a Dr. Elias, a physician

chosen by Morehouse. The letter of June 11, 2008 advising of the appointment reads in part:

       After review and consideration of the situation at present, Ambulance NB has
       decided to perform an Independent Medical Exam (IME) to determine your
       ability to perform your duties, or other duties provided by Ambulance NB, in
       order to accommodate any condition…

       Ambulance NB will pay for the cost of the examination if you appear and
       cooperate. If you fail to attend the exam, without good cause, and do not
       cooperate fully thru out the IME process it shall be interpreted that you have
       decided you are unable to perform the duties of an EMT and forfeit your position
       with Ambulance NB.




                                                                                               6
       Dr. Elias will check only the conditions that apply to your position, ask you about
       your medical history, and may review medical documentation, provided by you,
       if requested. Dr. Elias will then provide a report to Ambulance NB outlining, if
       any, the limitations and restrictions imposed by the condition and details of how
       the condition affects your ability to perform the duties of your regular
       occupation.

       Please be assured that this medical information will be kept strictly confidential.


12.    Bunting refused to attend the “Independent Medical”. He said: “He‟s not my doctor. It

would mean access to my medical files”. Bunting gave the correspondence from the employer to

his union representative. The union responded to the employer on June 17, 2008 stating that the

employer had received an up to date report from Dr. Henderson dated May 5, 2008. The union

complained that the employer‟s release was too broad and “not necessarily information related to

[Bunting‟s] ability to perform his Emergency Medical Technician (EMT) duties”. The final two

paragraphs of the letter read:

       At this point, we believe that the Employer has not established a legitimate
       concern to request such medical report from Mr. Bunting‟s physician. Such a
       request is considered a violation of medical confidentiality, a violation of Article
       8, and discrimination against Mr. Bunting under the CUPE Local 1252‟s
       Collective Agreement representing CUPE Local 4848.

       Based on Dr. Henderson‟s letter dated May 5th, 2008, Mr. Bunting is ready to
       return to work, and would like to be scheduled as soon as possible.


13.    The union‟s letter to the employer of June 19, 2008 advising that the grievor would not

attend the “Independent Medical” is to the same effect. This prompted the employer to write the

union on July 15, 2008, saying that the information it requested from Bunting was necessary to

allow the employer to fulfill its duty to accommodate. No request for accommodation has ever

been made by the grievor. The employer‟s letter of June 15, 2008, led to a meeting among the

parties on August 25, 2008. The purpose of the meeting, according to Morehouse, was to ensure

the grievor understood the employer‟s position – i.e., its perceived need for clarification of the



                                                                                                7
grievor‟s medical condition. The grievor acknowledged in his evidence that he was aware of the

employer‟s concern, but “I viewed it as harassment as they kept pushing it – asking for the same

thing and I [through Dr. Henderson‟s letter of May 5, 2008] answered that.” As a result, the

grievor continued to refuse to sign the employer‟s release.



14.    On August 29, 2008 the employer wrote once again to the grievor asking for an up-to-

date medical report to include:

              the limitations and restrictions imposed by the condition; and,
              details of how the condition affects your ability to perform the duties of
               your regular occupation (to this end, we attach a list of the main job
               duties regularly assigned to your position).


In addition, the employer scheduled a physical assessment for the grievor at a physiotherapist

used by the employer to conduct pre-employment physicals for paramedics. The form of the

release for Dr. Henderson enclosed in this letter was modified. It reads in part:

       I hereby give permission for a representative of Ambulance New Brunswick to
       have access to relevant records you may have on my file, as well as any special
       treatment record, in order to provide an up-to-date report to my Employer that
       will include: the limitations and restrictions imposed by the condition; and,
       details of how the condition affects my ability to perform the duties of my regular
       occupation.

       The information received will be protected by Canada‟s Privacy Act from
       disclosure to unauthorized persons.


15.    The grievor refused to sign the medical release and to attend the physiotherapy

examination as it was entitled “Pre-employment” - explaining that he was and had been

employed as a paramedic for approximately 20 years. In cross-examination he said that his

height of 5' 4" coupled with his arthritis has always required him to be creative in the use of his

body. He testified: “I felt they were trying to do me in because I don‟t look [good]”.




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16.    On September 11, 2008, the employer advised that as a result of the failure to attend the

physiotherapy clinic and the failure to sign the release for Dr. Henderson, the grievor had been

placed on an unpaid leave of absence. This resulted in the filing of this grievance on September

17, 2008 which reads in part:

       I/We the undersigned claim that

       Employer is violating Articles 8, 18, 22 and any other relevant Article in the
       Collective Agreement between the Province of New Brunswick and CUPE Local
       1252. I am ready, willing and able to report to work and the employer is refusing
       to allow me the right to go to work.

       The employer is discriminating against me because of having an illness. My
       Doctor has cleared me to do perform the full duties of my job.


17.    At the hearing of this grievance, Dr. Henderson testified that there were no limitations or

restrictions on the grievor‟s ability to perform the duties of his position as a paramedic. He

acknowledged, in cross-examination, that he could not say if he was aware of the April 22, 2008

incident when he wrote the letter of May 5, 2008. He did say, however, that his examinations on

March 17, 2008 and June 17, 2008 indicated that the grievor was capable of doing the job duties

expected of him. Dr. Henderson said that the grievor‟s arthritis may cause him to be “inventive”

in the use of his body, but that “his bio-mechanics are adequate although it may not look pretty.”

Dr. Henderson laid emphasis on the fact that the grievor had been doing the job for the past 15

years and is currently able to do the job.



ANALYSIS

18.    This grievance puts two legitimate interests into competition: the employee‟s privacy

interest in his medical records and the employer‟s interest in maintaining a safe workplace.




                                                                                                9
19.    The employee‟s right to privacy in his medical records is indeed a serious and well

respected right. As the Board said in Re Hamilton Health Sciences and O.N.A. (2007), 91

C.L.A.S. 228 at para. 20:

       20.      Both subjectively and objectively, personal medical information is
       confidential personal information. The confidentiality of the doctor/patient
       relationship and personal medical information is universally and legislatively
       recognized as one of the most significant privacy rights in modern Canadian
       society.

       …

       21.     There is nothing in the mere existence of an employment relationship
       that gives the employer any inherent right to compel its employees to
       compromise their legitimate right to keep personal medical information
       confidential. An employer only has a right to an employee‟s confidential
       medical information to the extent that legislation or a collective agreement or
       other contract of employment specifically so provides, or that is demonstrably
       required and permitted by law for the particular purpose.


20.    On the other hand, the employer is obligated not only by common sense but by section 9

of the New Brunswick Occupational Health and Safety Act to maintain a safe work environment

not only for the protection of its employees, but also for the general public served by those

employees.



21.    The resolution of this conflict is found in the general rule that in the absence of a

provision in the collective agreement or statutory authority, the employee cannot be compelled to

disclose information about his medical condition. The Board in Re Shell Canada Products Ltd.

and C.A.I.M.A.W., Loc. 12 (1990), 14 L.A.C. (4th) 75 noted at p. 79:

       That [privacy] right is based on guarantees provided at common law against
       infringement upon the physical integrity of the person. Those laws take several
       different forms but include prohibitions against such things as trespass against
       the person, assault, battery and unlawful confinement and they apply with equal
       force in the employment relationship. The employee does not leave those
       protections at the company gate.




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22.     However, in the absence of an article in the collective agreement or a statutory provision,

the employer may still require the employee to provide detailed medical information, including

submitting himself to a doctor of the company‟s choosing, where the particular circumstances

give rise to reasonable and probable grounds to believe the employee presents at risk to the

health or safety of the workplace.

        The significance of the risk will depend on the seriousness of the illness and the
        nature of the employee‟s duties. Furthermore, “reasonable and probable
        grounds” must exist for assuming the employee is a danger. This would
        necessarily exclude speculation or conjecture. Indeed, in the words of one
        arbitrator, „An employer may not refuse to allow an employee to return to work
        on the mere possibility of medical problems in the future.‟ – Canada (Attorney
        General) v. Grover [2007] F.C.J. No. 58 at paras. 65 and 72. [Emphasis added]


23.     The onus of proof in this respect lies upon the employer. The matter was succinctly put

in Re Télé-Direct (Publications) Inc. and O.P.E.I.U., Loc. 131 (1979), 8 L.A.C. (4th) 159 at page

177:

        “In short, an employer has the right and obligation to assure itself that an
        employee returning to work after a long illness is fit to return to his job. An
        employee can establish his fitness by producing a medical certificate to that
        effect. Once an employee produces a medical certificate stating unequivocally
        that he is fit to return to work, the onus is on the employer to establish that he is
        not fit to return to work. If the employer has reasonable grounds on the facts of
        the case to question the validity or the completeness of the opinion stated in the
        medical certificate, then it must explain clearly to its employee why a medical
        certificate is not acceptable and what specific informations are requested so that
        the employee can return to its treating physician and obtain the proper
        information. If the explanations are not satisfactory the company may, after
        consultation with the concerned employee, require that a medical examination
        preferably by an independent doctor be undertaken.”


In other words, the request for personal medical information must be reasonable in the

circumstances and the employee must be treated fairly in obtaining that further medical

information if it is justified.




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24.    Following the incident of April 22, 2008, Bunting was put on a paid leave of absence to

allow the employer to investigate. In the course of the investigation the employer obtained a

written statement from Benoit Savoie – the grievor‟s paramedic partner at the material time.

That statement reads in part:

       After the patient was laid comfortably on the stretcher and secured with the belts,
       we had to raise the stretcher back up in order to roll it and enter it into the truck.
       I was at the feed (end with the handle) and my partner, was at the other end (the
       head). I asked him twice if he was ready to lift. The first time he said no, but the
       second time he said that he was ready. I pulled the handle to lift the stretcher, but
       for maybe 2 seconds, the stretcher didn‟t lift (stayed at the same height). After
       that, I don’t know what happened, but it seemed that he lost his grip and his end
       of the stretcher went down on the floor. At that time, for a few seconds, all the
       weight of the stretcher and the patient was on me (I had to hold my end of the
       stretcher). I put the stretcher down carefully to don‟t injured [sic] the patient, but
       it took me a lots of strength to put it down by myself. Instant after that, I felt a
       warm sensation on the lower part of my back. With the stretcher down on the
       floor, we had to lift it back up. We tried, with the help of a nurse (on the same
       end as my partner), but they couldn‟t lift it. I had to go at the head, and the nurse
       there had to pull the handle with my partner on the same end (feet) and lifted up.
       We finally managed to lift it up. After all that event, 15 59 [sic] 30 minutes later,
       I started to feel more pain in my back (sharp pain like stings in the lower part of
       my back). Hopefully, the patient wasn‟t injured in that incident.
       [Emphasis added]


The employer asked the grievor what happened, but did not record his response. At this hearing,

the grievor testified that he did not lose his grip. He said “I thought it was on the [support] pegs

and I let go. It dropped two inches to the pegs.”



25.    The investigation together with the employer‟s knowledge of the grievor‟s arthritic

condition and hip surgeries caused the employer to request medical information to satisfy itself

that Bunting could be brought back to work safely. The undated note of Dr. Bowden, the

orthopaedic surgeon that performed the hip surgery, was the initial response. It is not surprising

that this note did not allay the employer‟s concerns. Consequently, the employer wrote Bunting




                                                                                                 12
on April 23, 2008 setting out its requirements and listing the main job duties of the position. Dr.

Henderson‟s response was brief:

       This will certify that I am the Rheumatologist supervising the care of the
       gentleman who has rheumatoid arthritis since 1993.

       I last saw Mr. Bunting on March 17, 2008 and I have no hesitation in stating that
       he does not require any modifications to his work place in order for him to
       continue his occupation with ANB.

       If you require further information, please do not hesitate to contact my office.


The employer was not satisfied: because i) the letter from Dr. Henderson indicates he last saw

Bunting on March 17, 2008 – approximately a month prior to this incident, ii) it does not make

reference to the grievor‟s “restrictions and limitations”, and iii) the final paragraph invites a

request for further information.



26.    In Hamilton Health Sciences, the Board asked, in the context of an absentee seeking to

return to work, what information is the employer entitled to and what information must the

employee provide? The answer in that case was “sufficient reliable information to satisfy a

reasonable objective employer that the employee was in fact absent from work due to illness or

injury, and to any benefits claimed” – paragraph 25. The Board went on to say:

       As a general matter, the least intrusive non-punitive interpretive approach that
       balances the legitimate business interests of the employer and the privacy
       interests of the employee is appropriate. But what the employer is entitled to,
       and concomitantly what the employee is required to provide, will first and
       foremost depend on what the collective agreement or legislation provide in that
       respect.


27.    The factors bearing on the sufficiency of the medical information received are:

       1.      The employee‟s job responsibilities. Here being responsible for
               patient care arguably requires a higher standard of care than some
               other situations – Télé-Direct, para. 33.



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       2.      The onus of proof: The returning employee has an obligation to
               provide a certificate of fitness to his or her employer. At that
               point:

               “…the onus shifts onto the employer to establish that he is not fit to
               return to work [and] the employer has reasonable grounds on the facts of
               the case to question the validity or the completeness of the opinion stated
               in the medical certificate, then it must explain clearly to its employee the
               reason the medical certificate is not acceptable and what specific
               information is requested so that the employee can return to its treating
               physician and obtain the proper information. I[f] the explanation is not
               satisfactory the company may, after consultation with the concerned
               employee, require that a medical examination preferably by an
               independent doctor, be undertaken – Re Thompson General Hospital
               [1991] M.G.A.D. No. 57 at para. 35.


In a different set of facts, but in relation to the same issue, the Board in Ontario (Human Rights

Commission) v. Etobicoke (Borough) (1991), 132 D.L.R. (3d) 14 (Q.L. p. 6 and 7) said:

               “impressionistic” evidence is not sufficient to discharge the onus.


28.    The evidence upon which the employer seeks to justify its demand for medical

information is (i) the speculation of Savoie that the grievor lost his grip on the stretcher on April

22, 2008, categorically denied by the grievor; (ii) the subsequent difficulty in lifting the stretcher;

and (iii) the employer‟s knowledge of the grievor‟s arthritic condition for many years, during

which the grievor continued to work with respect to which no complaint was made. While this

background might justify a request for medical fitness assurance, it ought to be satisfied with the

minimum bearing in mind the grievor‟s competing privacy rights.

       … an employer is entitled to more information when there are reasonable
       grounds to support abuse, and the extent of the disclosure is dependent
       upon the facts of each case.” Re Manitoba (Headingly Correctional
       Institution) & MGGEU, [2007] M.G.A.D., No. 5 at para. 38.


29.    Admittedly Dr. Bowden‟s undated note, although obtained in response to the employer‟s

request, would not meet that minimum threshold. The subsequent employer‟s request of April



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30, 2008 set out what it was seeking and in fact the structure of the letter presumes the grievor‟s

disease imposes limitations and restrictions which impact on his job performance. It lists the job

requirements. To this letter, Dr. Henderson responds that he has been the grievor‟s treating

physician for 15 years, that he has seen the grievor in the previous six weeks, and he has “no

hesitation” in saying no modification of the workplace is needed in order for Bunting “ to

continue his occupation with ANB”. In the circumstances of this case, when Dr. Henderson‟s

letter of May 5, 2008 is read against the employer‟s letter of April 30, 2008, the employer ought

to have been satisfied that Bunting was physically fit to continue his work as a paramedic. It

reaches the disclosure threshold created by the facts. Here the employer attempted to justify its

demand for medical information on the known fact that the grievor is a long time arthritic

sufferer, his recent hip surgeries and the speculation of the paramedic partner as to what

happened on April 22, 2008. The employer formed its impression that the grievor‟s working

ability must be compromised by his ongoing medical condition. The employer offered no hard

evidence to support its view and it appears to have discounted the undisputed fact that the grievor

had done his job without a single complaint as to his ability for 20 years. The employer has

therefore failed to meet the onus upon it to justify the need for further or greater access to the

grievor‟s medical records.



30.    If I am mistaken in determining that Dr. Henderson‟s letter was sufficient, then the

employer‟s subsequent conduct in seeking additional medical information must be examined for

its fairness. The Board in Hamilton Health Sciences said at para. 38:

       “The nature, extent and frequency of an employer‟s request for continuing
       information, from either the employee or medical professionals must be
       reasonable in the circumstances…”




                                                                                                15
In response to Dr. Henderson‟s letter of May 5, 2008, the employer wrote to Dr. Henderson

directly requesting a “clarification”. The critical paragraphs of the employer‟s letter reads:


        “I respect your assessment of this situation, but would like to know the
        limitations and restrictions imposed by Mr. Bunting‟s condition and details of
        how the condition affects his ability to perform the duties of EMT (to this end,
        we attach a list of the main job duties regularly assigned to Mr. Bunting‟s
        position). As mentioned in the letter to Mr. Bunting, we are requesting this
        information in order to determine whether he may be able to perform some of his
        duties or other duties provided by ANB.”


The employer‟s request continues to presume limitations and restrictions affecting the grievor‟s

job duties.    It is not surprising that the grievor, acquainted with Dr. Henderson‟s letter,

considered the questions answered. When Dr. Henderson requested a release from his patient

through the employer, the employer provided a release to the grievor for his signature purporting

to allow the employer “to have access to any records you may have on my file, as well as any

special treatment record.”



31.     The form of the consent or release was examined in Hamilton Health Services. The

Board held that in balancing the respective interests of the parties “the consent must be both

focused on the particular purpose and limited to a particular medical professional… A “basket”

consent that purports to authorize anyone who the employer may ask to release confidential

medical information is not appropriate.” (para. 35). The release provided by the employer at this

point was unfocused and far reaching. It was an unreasonable request to make of the grievor and

he was justified in refusing to sign it.



32.     As a result, and no doubt frustrated by what it perceived as a lack of cooperation from the

grievor, the employer wrote to Bunting on June 11, 2008 advising that it had “decided to perform


                                                                                                 16
an Independent Medical Exam (IME) to determine your ability to perform your duties” with a

Doctor Elias.    The third paragraph contains what might be well described as a threat of

termination:

       If you fail to attend the exam, without good cause, and do not cooperate fully
       thru out [sic] the IME process, it shall be interpreted that you have decided you
       are unable to perform the duties of an EMT and forfeit your position with
       Ambulance NB.


In Canada (AG) v. Grover, [2007] F.C.J. Not. 58, the Federal Court said:

       70       Numerous cases speak to the requirement that a medical examination
       must be shown to be “necessary” due to a “legitimate doubt”. The onus lies on
       the employer, who must be prepared to call “cogent evidence” to support its
       position. The need for a medical examination is described as “drastic action”
       which must have a “substantial basis” and will only be required in “rare case”. In
       light of such arbitral commentary, the adjudicator‟s description of the need for
       “exceptional and clear circumstances” clearly arises from the cases.


The context for an employer-arranged medical examination is described in Re Thompson and

Town of Oakville (1993), 41 D.L.R. (2d) 294 at pp. 302-3:

       One has only to remind oneself what a medical examination means. A medical
       examination involves the confidence of the doctor if he is your own physician,
       but it is otherwise if he is making an examination on behalf of another. The right
       of employers to order their employees to submit to an examination by a doctor of
       the choice of the employer must depend on either contractual obligation or
       statutory authority. None exists in this case. The ordinary medical examination
       requires taking samples of blood; it may require x-ray examinations, fluoroscopic
       examinations, all sorts of tests that one has the right to say, „I don‟t want to be
       subjected to‟.


The “clear and exceptional circumstances” required to justify the employer‟s medical

examination do not exist here. The basis for the employer‟s demand lay in the grievor‟s refusal

to sign what this Board has found to be an inappropriate release.




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33.      The union‟s explanation of Bunting‟s position on a release and the so called

“Independent Medical” resulted in the employer continuing to insist upon receipt of the signed

release. It sought to justify its position based on a perceived need for accommodation. Bunting

has never made a request for accommodation.



34.      Following a meeting among the employer, the grievor and the union on August 25, 2008,

the employer continued to require an “up-to-date report” from Dr. Henderson. The form of

release accompanying the employer‟s request of August 29, 2008 was varied in part. It now

reads:

         I hereby give permission for a representative of Ambulance New Brunswick to
         have access to relevant records you may have on my file, as well as any special
         treatment record, in order to provide an up-to-date report to my Employer that
         will include: the limitations and restrictions imposed by the condition; and,
         details of how the condition affects my ability to perform the duties of my regular
         occupation.


It is, in my view, somewhat more focused and consistent with the original request of April 30,

2008, but it continues to presume that the grievor‟s “condition” imposed “limitations and

restrictions” on his ability to work as a paramedic. In addition to a further request for a report

from Dr. Henderson, however, the employer demanded the grievor attend a physical assessment

at a physiotherapy clinic on September 8, 2008. These two demands were followed by this

paragraph:

         If you fail to attend the physical assessment, without good cause, and do not
         complete the Authority to Release Medical Information in order for us to receive
         an up-to-date report from Dr. Henderson, we will have no other alternative than
         to place you on unpaid leave of absence.


Even if the revised release is considered to be sufficiently limited, coupling it with a further

demand for an assessment, on this occasion not by a physician, but by a physiotherapist is


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inappropriate for the same reasons as the “independent” medical examination with Dr. Elias.

The grievor was entitled to refuse to comply.



35.    In the result, the grievance is allowed. The grievor is to be reinstated immediately. He is

to be paid his lost wages and benefits from the date of his suspension without pay. Jurisdiction is

retained for implementation purposes.



Dated at Fredericton, NB, this 29th day of May 2009.




G. L. BLADON
ARBITRATOR




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