Smith v. Canadian National Railway

Smith v. Canadian National Railway
Collection
Canadian Human Rights Tribunal
Date
2008-05-09
Neutral citation
2008 CHRT 15
File number(s)
T939/5904
Decision-maker(s)
Sinclair, Grant, Q.C.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
JIM SMITH
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADIAN NATIONAL RAILWAY
Respondent
REASONS FOR DECISION
2008 CHRT 15 2008/05/09
MEMBER: J. Grant Sinclair
I. INTRODUCTION
A. Mr. Smith's Back Injury
B. Mr. Smith's Return to Work Post Injury
II. ISSUES
III. DECISION
IV. FINDINGS OF FACT
A. Attempts to Return Mr. Smith to his Pre-Injury Job
B. RTWP No. 1 - December 2000 - Locomotive Engineer
C. RTWP No. 2 - March 2001 - Locomotive Engineer
D. RTWP No. 3 - April 2001 - Locomotive Engineer
(i) The July 12, 2001 Meeting - Attempt to Resolve Mr. Smith's Situation
(ii) Dr. Clarke's Assessment
(iii) The CN Temporary Job Offer - July 16, 2001
(iv) Mr. Smith's Functional Capacity Evaluation - October/November 2002
(v) Other Job Possibilities in Terrace
E. Mr. Smith's Appeal to WCB Review Board - Decision - March 14, 2003
F. RTWP - June/July 2003 - Traffic Coordinator in Prince George
G. RTWP No. 4 - Traffic Coordinator - Prince George, June/July 2003
(i) Duties of a Traffic Coordinator
(ii) Mr. Smith's Concerns re: the RTWP for Traffic Coordinator
H. The Technical Training - Traffic Coordinator - Thornton Yard - Vancouver, June 2003
(i) Phase One of the RTWP - Thornton Yard, Vancouver
a) Mr. Smith's Diaries
(ii) Phase Two of the RTWP - Prince George - July 2003
a) Mr. Smith's Diaries
I. Mr. Smith's Union Grievance, June 2002
J. RTWP No. 5 - Assistant Traffic Coordinator - January 2004
(i) Mr. Smith's Duties and Responsibility of Assistant Traffic Coordinator
(ii) Termination of the Assistant Traffic Coordinator RTWP
K. Another Opportunity for the Assistant Traffic Coordinator Position
L. Mr. Smith's Application for Canada Pension Plan Disability Pension
M. Can Mr. Smith Work or is He Permanently Disabled? - Facts to Consider
(i) September 21, 2004 letter
(ii) Application for Judicial Review of the Arbitrator's Decision
(iii) The WCAT Decision - February 2006
(iv) Dr. Appleton's 2006 Clinical Notes
(v) Referral to Dr. Keyes, Neurologist
(vi) Mr. Smith's Application for CN Disability Retirement Benefits
(vii) Mr. Smith's June 29, 2006 Email Enquiry for Work with CN
(viii) Mr. Smith's Proposed Accommodation - September 2006
(ix) Mr. Smith's Human Rights Complaint and the Remedies He Requested
V. REASONS FOR DECISION
A. Did CN Discriminate/Retaliate Against Mr. Smith by Rejecting his Application for a CN Disability Retirement Pension?
B. Did CN Accommodate Mr. Smith?
VI. CONCLUSION
I. INTRODUCTION [1] James Smith is the complainant in this case. He is a locomotive engineer with the Canadian National Railway (CN), but has not worked in this position since 2001.
[2] Mr. Smith began working for CN as a brakeman in Edmonton in 1979. In 1981, he moved to Prince George, British Columbia, as a conductor/brakeman. In 1987, he qualified and began working as a locomotive engineer with CN.
[3] In 1989, Mr. Smith moved to Terrace, British Columbia, where he currently resides with his wife. They very much like living in Terrace. Mrs. Smith works as a library assistant for the local school board. She is qualified as a pharmacist. His children have left home.
A. Mr. Smith's Back Injury [4] The history of events which ultimately led to Mr. Smith filing a discrimination complaint on February 28, 2002, with the Canadian Human Rights Commission began on November 17, 1997. It was on that day that he injured his back removing a derail (weighing about 60 lbs.) so that he could drive a locomotive out of the CN shops in Prince Rupert. As he described it, something went in my back.
B. Mr. Smith's Return to Work Post Injury [5] Mr. Smith went off work on November 17, 1997. He consulted with his doctor, Dr. Appleton who filed an attending physician's report with the Worker's Compensation Board (WCB) on November 20, 1997, indicating that Mr. Smith had acute lower back problems. Dr. Appleton estimated his expected return to work to be on November 27, 1997. Mr. Smith filed a claim with the WCB on November 25, 1997.
[6] During the time he was off work, Mr. Smith attended the Skeena Work Conditioning Clinic. According to the Clinic's February 18, 1998 report, Mr. Smith was fit to return to his pre-injury duties without limitations.
[7] Mr. Smith did return to work on February 27, 1998. After he returned to work, he reported problems sitting because of pain in his left leg and lower back. As a locomotive engineer, he would spend most of the time sitting when operating the engine, doing runs from Terrace to other locations on the CN northern line such as Prince George, Prince Rupert, Smithers and Kitimat.
[8] Mr. Smith went off work again on February 19, 1999. Because of his worsening condition, Dr. Appleton arranged for Mr. Smith to have back surgery, (a lumbar discectomy left L5-S1 disc) which was performed in Vancouver on March 12, 1999, by Dr. Padilla. According to Mr. Smith the surgery improved his condition. The pain he had been experiencing was considerably reduced.
[9] After his operation, Mr. Smith attempted a number of return-to-work plans developed in conjunction with WCB and CN over the period 2000 to 2004. Three of the plans were designed to return Mr. Smith to his pre-injury job of engineer. The later two plans involved retraining Mr. Smith to work as a traffic coordinator/assistant traffic coordinator in Prince George. To do this job, Mr. Smith would have to relocate from Terrace to Prince George.
[10] None of these return-to-work plans were successful. Mr. Smith stopped working as an engineer in March 2001. He has never returned to work for CN, although he remains on CN's employee roster without pay or benefits.
II. ISSUES [11] The issues in this case as defined by Mr. Smith in his Statement of Particulars are as follows:
Did CN discriminate against Mr. Smith on the grounds of his disability and family status by failing to accommodate him with suitable employment in the Terrace area; Did CN discriminate and/or retaliate against Mr. Smith for pursuing his complaint by misrepresenting to the WCB the suitability of the accommodations offered to him as a locomotive engineer and as a traffic coordinator in Prince George; by misrepresenting the medical difficulties he experienced while training in Prince George; and by misrepresenting his ability to complete the two traffic coordinators programs in Prince George; Did CN discriminate and/or retaliate against Mr. Smith when it rejected his application for a CN disability retirement pension.
[12] As to Mr. Smith's claim that he should be accommodated in Terrace, this is the third legal proceeding in which Mr. Smith has raised this question. The first was pursuant to a grievance filed by Mr. Smith's Union, the Brotherhood of Locomotive Engineers on June 26, 2002. This grievance was dismissed in arbitration on July 14, 2003.
[13] The second was by way of his appeal to the Workers Compensation Appeal Tribunal heard on November 29, 2005. In its February 10, 2006 decision, WCAT also rejected Mr. Smith's contention that CN should accommodate him in Terrace.
[14] Nonetheless, Mr. Smith now brings the same issue before this Tribunal.
III. DECISION [15] I have concluded that:
CN did accommodate Mr. Smith through the three modified return-to-work programs designed to bring Mr. Smith back to service as a locomotive engineer in Terrace. And subsequently by offering him the position of traffic/assistant coordinator in Prince George. CN did not discriminate or retaliate against Mr. Smith in its dealings with the WCB. The evidence does not support the conclusion that Mr. Smith is totally and permanently disabled from engaging in any employment. CN did not discriminate or retaliate against Mr. Smith by refusing him a disability pension.
[16] Mr. Smith's complaint is dismissed.
IV. FINDINGS OF FACT A. Attempts to Return Mr. Smith to his Pre-Injury Job [17] Mr. Smith told Connie Araujo, his WCB case manager, of the difficulties he had with his return to work. She asked Dr. McDougall, a WCB Medical Advisor, to review Mr. Smith's medical evidence on file and advise her whether Mr. Smith had any permanent functional impairment which would prevent a return to work as an engineer.
[18] Dr. McDougall, in his September 29, 1999 report, noted that Mr. Smith reported that he was still having problems with sitting, which is a large part of his pre-injury job. He could not answer at this point whether Mr. Smith could return as an engineer.
[19] Dr. McDougall recommended certain restrictions for Mr. Smith, namely, avoid heavy or repetitive lifting, avoid twisting and bending and change positions from sitting to standing to walking when working.
[20] WCB arranged with the WorkAble Centre in Terrace to visit the job site to examine the physical demands associated with both the engineer and brakeman/conductor positions in CN. This was partly in response to Mr. Smith's earlier request to move to a conductor/brakeman job.
[21] Karen Chasney, a registered occupational therapist with WorkAble, visited the Terrace job site on October 7, 1999. In her October 21, 1999 report, Ms. Chasney provided a detailed description of the duties and responsibilities of both positions. She also reported on the concerns Mr. Smith expressed to her at their meeting on October 8, 1999, about returning to work as an engineer.
[22] In her report, Ms. Chasney did not support Mr. Smith moving to a conductor/brakeman position because of the high risk for re-injury. She recommended that Mr. Smith could do his pre-injury job, initially starting as an extra to build his tolerance for the job and a graduated return-to-work plan be coordinated with CN, WCB and Mr. Smith. She also suggested that Mr. Smith alternate his position between sitting and standing when driving the locomotive.
[23] In a number of WCB attending physician reports between September and November 1999, Dr. Appleton noted that Mr. Smith reported that his symptoms remained unchanged and that he continued to have problems with prolonged sitting. Dr. Appleton had doubts whether Mr. Smith could alter his position sufficiently when driving the engine as suggested in the WorkAble report.
[24] Mr. Smith returned to work on December 13, 1999, on a run from Terrace to Kitimat. He was able to make the outbound trip but could not do the return trip. Instead he took a taxi home from Kitimat to Terrace.
[25] Dr. Appleton examined Mr. Smith early in January 2000. Mr. Smith had reported a lot of pain when sitting for more than 20-30 minutes, depending on the chair. Dr. Appleton's view was that Mr. Smith could not do the engineer's job because of the prolonged sitting.
[26] Ms. Araujo arranged for another WCB medical consultant, Dr. Naismith who examined Mr. Smith on January 28, 2000. Mr. Smith told Dr. Naismith that the main physical demands of his job were sitting and the safe operation of the locomotive. If sitting for more than 2 hours, he would develop pain in his back.
[27] Dr. Naismith did not think that Mr. Smith's injury was a medical contra-indication to any activity within his symptoms. He felt that Mr. Smith's description of his restricted sitting tolerance was biologically plausible. But his sitting tolerance and the pain he experienced could not be measured medically. He did agree with Dr. Appleton to restrict the amount of sitting to reasonable levels of comfort.
[28] The referrals to specialists continued. On February 17, 2000, Dr. F. Gouws, a WCB medical advisor, referred Mr. Smith to Dr. Wing, an orthopedic surgeon, for further medical examination. Dr. Wing examined Mr. Smith on May 5, 2000. In his medical report, Dr. Wing did not recommend any further surgery. He felt that Mr. Smith could do some type of work and suggested a modified return-to-work program. If Mr. Smith was not able to work as an engineer, an alternative occupation should be considered.
[29] In July 2000, Todd McDonald, a WCB vocational rehabilitation consultant, became involved with Mr. Smith's claim. He wanted to consider a graduated return-to-work plan (RTWP) and asked Erin Fawcett, a CN claims officer, to contact CN safety officials to determine whether it would be a safety issue for Mr. Smith to stand while operating a locomotive engine. Erin Fawcett confirmed that the CN Safety Department did not consider this to be a safety issue.
B. RTWP No. 1 - December 2000 - Locomotive Engineer [30] Mr. McDonald asked CN to develop a graduated RTWP and CN retained Karlene Dawson, a certified kinesiologist and disability management professional, to do this. Ms. Dawson prepared a RTWP which was reviewed and agreed to by WCB and CN.
[31] In preparing this RTWP for Mr. Smith, Ms. Dawson consulted with Mr. Smith's supervisor in Terrace about the engineer's job duties; reviewed information from the WCB relating to any medical limitations or contra-indications for Mr. Smith returning to his pre-injury job; she also reviewed the October 21, 1999, WorkAble Report which outlined the physical demands of the job and its recommendations for Mr. Smith.
[32] On August 22, 2000, Ms. Dawson spoke to Mr. Smith about the return-to-work plan she was developing for him. They talked about his tolerances, how long he can sit or stand. He told her that he could drive for about two hours at one time, and currently he was doing about five hours of home exercise. He also told her that as long as he continued with his exercises his back felt not too bad.
[33] Ms. Dawson provided the RTWP to Mr. Smith on September 8, 2000. She asked him to review it and provide her with any comments or concerns. He thought it was a little too aggressive and was unsure if he was able to do it. Ms. Dawson was surprised. She thought that the information she had plus what Mr. Smith told her about his tolerances accorded with the RTWP.
[34] Mr. Smith consulted again with Dr. Wing on October 23, 2000. Ms. Araujo had sent Dr. Wing the draft RTWP for Mr. Smith and asked for his comments. Dr. Wing's view was that the plan was totally appropriate for Mr. Smith. He recommended that Mr. Smith move and change positions from time to time when he is working.
[35] The RTWP was to commence on December 12, 2000. Mr. Smith would do two trips per week in week one and week two of the plan. He would have three days off during these weeks so that he could rest and continue with his home exercises.
[36] His work week would progressively increase so that he would add a trip in each subsequent week. During this period, Mr. Smith would be the fourth person on a three-man crew, which meant that he did not have the primary responsibility for the operation of the locomotive. The plan also provided he should alternate between sitting and standing as required.
[37] Under the plan, Mr. Smith was required to keep a diary of his experience and fax it weekly to CN Occupational Health Services. He was to record his tasks, any physical symptoms and if the symptoms increased or decreased, so that the necessary modifications could be made.
[38] On December 15, 2000, Ms. Dawson wrote to Dr. Appleton, about the spasms that Mr. Smith had told her he experienced when operating the engine. She included with her letter a physical demands analysis of the engineer's job and Mr. Smith's RTWP. She asked Dr. Appleton to comment on the spasms and provide an opinion whether the spasms resulted from any underlying medical condition that would affect his position as a locomotive engineer.
[39] In his December 19, 2000 response, Dr. Appleton indicated that Mr. Smith was fit for graduated return to work as outlined and that his medical condition was stable. Dr. Appleton also suggested that Mr. Smith must be able to move around frequently, and prolonged sitting is a contra-indicator.
[40] Mr. Smith returned to work on December 12, 2000. He did the Terrace to Kitimat run on December 12, 14 and 19, alternating between sitting and standing. On December 21, he only did the outbound run.
[41] On December 28, 2000, Mr. Smith was scheduled for the Kitimat run. When he was sitting in the engine waiting to leave, he experienced intense spasms. He had to get off the engine and lay on the floor of the yard office. His wife came and took him to the hospital. He was examined, given medication and released.
[42] Mr. Smith was able to make the return run from Terrace to Kitimat on December 29. But on the Terrace/Kitimat run on January 2, 2001, he reported that his spasms were so frequent and intense that he could not make the return trip. He took a taxi back to Terrace lying on the back seat all the way. Mr. Smith was unable to complete this RTWP.
[43] On January 24, 2001, Dr. Trent Faraday, WCB medical consultant, was asked for his medical opinion as to whether there were any significant changes from January 2000 in Mr. Smith's medical condition. He replied on January 25, 2001, that there had not been any objective change in Mr. Smith's medical condition.
[44] Dr. Faraday also confirmed Mr. Smith's physical work restrictions to be:
avoid lifting greater than 30 pounds
avoid prolonged sitting
avoid excessive pushing, pulling, carrying and bending activities
have the ability to change positions from sitting, standing and walking as required
[45] Dr. Faraday concluded that Mr. Smith should complete the RTWP developed by Ms. Dawson and approved by Dr. Wing.
C. RTWP No. 2 - March 2001 - Locomotive Engineer [46] Prior to the December 2000 RTWP, Mr. Smith had suggested to CN that he return to work as an engineer, doing yard work in the Terrace Yard. After the first RTWP failed and in response to Mr. Smith's suggestion, Ms. Dawson developed another plan. WCB was not involved in this RTWP. It was done on CN's initiative.
[47] This RTWP provided that Mr. Smith would work in the yard office, spend two hours on the yard engine and another hour in the yard office. He would work as an extra person and was to try as many duties as possible during the term of the plan.
[48] The plan was transitional, with Mr. Smith gradually increasing the hours and shifts worked in each week. Mr. Smith could take breaks as necessary, as he was working as an extra person on the crew.
[49] The RTWP was to start in March 2001, to run two to four weeks. Dr. Coppin, a CN medical advisor, wrote to Dr. Appleton enclosing the RTWP. Dr. Coppin pointed out that this RTWP provided for modified duties and was limited to local yard work which would avoid prolonged periods in the locomotive cab. He asked for Dr. Appleton's support. Dr. Appleton agreed to this plan.
[50] Dr. Appleton wrote in his clinical notes on March 6, 2001, that Mr. Smith, his Union representative and CN representatives had met and agreed to another RTWP which did not involve significant engineer's work. Dr. Appleton considered this to be a reasonable offer and had discussed this at length with Mr. Smith.
[51] Mr. Smith started on March 1, 2001. But he was not able to complete the plan. On March 28, 2001, there was a meeting in Terrace between Ms. Dawson, Mr. Smith, his Union representative Wayne Wiederspiel, and the Terrace CN Superintendent, Darren Payment. At this meeting, they discussed the fact that Mr. Smith wasn't making much progress. He had difficulty operating the locomotive and wasn't able to continue at the pace that was outlined. All agreed that the RTWP should be terminated.
[52] Mr. Smith said that he had no problem with the yard office duties. He was able to move around. But operating the yard engine caused him difficulty. He experienced pain and muscle spasms when his hours on the engine increased.
[53] After the March 28, 2001 meeting, Mr. Wiederspiel offered some suggestions to Ms. Dawson that could assist Mr. Smith to return to his pre-injury job. These included putting a rubber mat in the locomotive engine to dampen the engine vibration, removing the back of the engine cab seat so that Mr. Smith could kneel on the seat when operating the engine. He also made recommendations concerning Mr. Smith taking rest breaks. Mr. Wiederspeil asked that CN reactivate the March RTWP and include some of his suggestions.
D. RTWP No. 3 - April 2001 - Locomotive Engineer [54] CN agreed. Ms. Dawson drafted another RTWP in consultation with Mr. Wiederspiel. The previous RTWP was modified to include rubber matting, ensuring that Mr. Smith had supportive, comfortable safety boots when working; sitting, standing or kneeling as necessary, and removing the back of the seat in the locomotive engine cab.
[55] Ms. Dawson sent a copy of this RTWP to Mr. Smith on April 26, 2001. He reviewed the plan and sent back his comments including some modifications which Ms. Dawson put into the plan.
[56] According to Ms. Dawson, at no time did Mr. Smith indicate that he was not able to carry out this RTWP. In fact, he clearly gave the impression in his communication with Ms. Dawson that he was prepared to move ahead with it.
[57] Ms. Dawson also sent a copy to Dr. Appleton on April 26, 2001, explaining the modifications and asked for his support. Dr. Appleton's response on May 22 was that he was concerned that the locomotive cab is too confined to allow Mr. Smith to vary his position. Dr. Appleton doubted whether there would be any further improvement in Mr. Smith's condition and he should look for alternate employment. Dr. Appleton rejected the plan and Mr. Smith never started it.
(i) The July 12, 2001 Meeting - Attempt to Resolve Mr. Smith's Situation [58] On June 14, 2001, Dr. Appleton wrote to Ken Beddie, Manager of the WCB Terrace office, seeking a meeting to try to resolve Mr. Smith's situation. He had asked Ms. Araujo to arrange a meeting but she declined. Dr. Appleton said that he was quite incensed by this. Thus his letter to Ken Beddie. It was his medical opinion that Mr. Smith could not resume his engineer job as it required a lot of either standing or sitting for prolonged periods. He felt that a meeting was the only way to resolve the issue.
[59] A meeting was held on July 12, 2001 in Terrace. In attendance was Mr. Smith and Dr. Appleton; Karlene Dawson, Murray Swanson, Dr. Faraday, Dr. Vaney, all from CN; Ken Beddie, Connie Araujo and Vivien Millin, a WCB vocational rehabilitation consultant.
[60] There was discussion about the failed attempts to return Mr. Smith to his pre-injury position. Ms. Dawson advised that CN and the Union were looking for alternative work for Mr. Smith, but due to cutbacks in the area, there were no options. But if Mr. Smith was willing to relocate, CN would be able to accommodate him in a different job.
[61] On March 30, 2001, Dr. Appleton had written to Dr. Clarke, a neurologist, asking him to assess Mr. Smith. He asked Dr. Clarke if he could identify physiological or psychological causes for Mr. Smith's symptoms.
[62] Mr. Smith had seen Dr. Clarke on July 11, 2001, but had not yet sent his medical report to Dr. Appleton. They wanted to wait for Dr. Clarke's report and they also agreed that it would be useful for Mr. Smith to have a functional capacity assessment.
[63] CN was to pay for this and it was up to CN to find available facilities and arrange for the assessment.
(ii) Dr. Clarke's Assessment [64] In his July 11, 2001 medical report, Dr. Clarke reported a number of medical findings about Mr. Smith. These included what Mr. Smith reported as his concerns, namely, back spasms that he had experienced intermittently since 1997. Mr. Smith told Dr. Clarke that his spasms occurred after sitting between 20-60 minutes, depending on the chair, or if standing between 30-60 minutes. He also told Dr. Clarke that if he did not sit or stand for a prolonged period, he had very few back spasms. His self treatment is to lie on his back on a hot pad and that works well. He also reported to Dr. Clarke that he was quite active, walking from his home to the swimming pool, swimming about 40 laps regularly and doing some yard work at home.
[65] Dr. Clarke's assessment was that Mr. Smith has a pretty normal neurological exam and does not have a lot of non-organic features. If he carefully manages his activities and does not sit or stand for prolonged periods of time, he is relatively comfortable and can function pretty well.
[66] Dr. Clarke concluded that, given his history of recurrent spasms since 1997 and the requirement of his job to sit and stand for prolonged periods, it is unlikely that he could return to his pre-injury job and would be a good candidate for retraining.
[67] In his February 14, 2002 clinical notes in reference to Dr. Clarke's assessment, Dr. Appleton noted that neither he nor Dr. Clarke are able to decipher the exact nature of Mr. Smith's muscle spasms or cause.
(iii) The CN Temporary Job Offer - July 16, 2001 [68] Both Dr. Appleton and Mr. Smith were concerned that Mr. Smith had not received any income for some time. Rob Reny, CN Senior Manager Human Resources for Western Canada, had ongoing discussions with Dan Shewchuk, Vice-Chair of the Union, about Mr. Smith's return-to-work programs and what the next steps should be.
[69] At the July 12, 2001 meeting, CN was asked if it would offer Mr. Smith short term work to alleviate some of Mr. Smith's financial problems, pending Dr. Clarke's assessment.
[70] CN offered Mr. Smith three weeks employment in the Terrace yard and Mr. Swanson told him that he was to report to work on July 16, 2001.
[71] Mr. Smith emailed Mr. Swanson later that day asking for an outline as to the proposed duties. He asked for the outline because he wanted to get Dr. Appleton's approval for the job duties. It is not clear why he needed this since Dr. Appleton was at the meeting when the temporary job was discussed.
[72] Mr. Swanson emailed Mr. Smith on July 16, 2001 with an outline of the duties. The duties included doing sedentary desk duties, doing an inventory of office and stationery supplies, driving anywhere between 20 minutes to two hours in the yard with the opportunity to get out of the vehicle and stretch during stops, and walking to assist with the inspection of trains in the yard, which walking would not exceed one kilometre.
[73] Mr. Smith did not report for work on July 16 as scheduled. Mr. Swanson called Mr. Smith on July 16 and left a message on Mr. Smith's answering machine saying that the outline had been sent to him. He also left a phone message on August 10 asking Mr. Smith to contact him about why he had not shown up for work.
[74] Initially, Mr. Smith told CN that he did not get Mr. Swanson's email until August 23. He told CN that he did not recall getting Mr. Swanson's phone messages.
[75] At the Tribunal hearing, Mr. Smith testified that he had not been honest with CN. He did receive the list of duties on his email on July 16. He did receive at least one of Mr. Swanson's phone messages. In fact, he was away on holidays with his wife and did not return until late August. Mr. Smith did not want CN to know that he went on vacation with his wife instead of reporting for work.
(iv) Mr. Smith's Functional Capacity Evaluation - October/November 2002 [76] Mr. Smith's functional capacity evaluation occurred on October 3, 8 and 21, 2002. It was done by Julie Veillleux, an occupational therapist. Ms. Veilleux tested Mr. Smith's functional capacity and his physical abilities. She also made two job site visits to review the tasks and physical demands of the locomotive engineer position.
[77] The first site visit was at the Terrace yard and included a run from Kitimat to Terrace on a locomotive engine. The second site visit was at the Thornton CN yard in Vancouver. The purpose was to look at other types of CN locomotives that CN operates.
[78] In her November 6, 2002 vocational analysis report, Ms. Veilleux concluded that there was a good match between Mr. Smith's physical abilities and the physical demands of the engineer job. Her overall conclusion, however, was that she was not able to determine with reasonable confidence whether Mr. Smith was capable of working full time as an engineer. She noted that Mr. Smith had not been able to successfully complete three previous RTW programs. But there was no objective evidence to explain why. She proposed another RTWP to be closely monitored by medical rehabilitation professionals.
(v) Other Job Possibilities in Terrace [79] Over the period from April, 2001 to May, 2003, there were discussions with CN about job possibilities for Mr. Smith in Terrace. Daryl Payment, Superintendent of Operations in Terrace, was asked about employing Mr. Smith in a taxi operation for the train crews. His response was that because there were a limited number of trains running in the B.C. north, it was not a feasible suggestion. Mr. Payment could not think of any other positions for Mr. Smith in Terrace.
[80] In February, 2003, Mr. Smith had talked to Judy McKenzie, a CN personnel officer, about potential employment opportunities in Terrace. He suggested that he could drive train crews around the Terrace terminal or set up a website for CN or do computer work, or set up an Operation Lifesave Program for the local schools.
[81] CN's position was that the Terrace terminal was a small location with very few offices or sedentary positions necessary to Mr. Smith's restrictions. With the downturn in economic activity in the Terrace area, the volume of traffic for CN was reduced significantly. Many of the non-running positions had been eliminated or transferred to other larger CN terminals such as Prince George, Edmonton or Vancouver.
[82] As to setting up websites, CN's websites are provided by an external service provider or CN's Information Technology group in Montreal.
[83] CN contracted with a taxi service to drive crews around the terminal. This would involve a lot of sitting. Further, it would not lead to full-time employment.
[84] The operational people in Terrace and Mr. Smith's return-to-work team, all experienced and knowledgeable about CN's operation in Terrace, had been canvassed extensively for job possibilities in Terrace. There were no opportunities in Terrace to accommodate Mr. Smith other than creating a position that was not otherwise required.
[85] CN's objective was to try to find full-time, gainful employment for Mr. Smith that would keep him employed over the long term, not create work projects. The suggestions provided by Mr. Smith regarding his employment at the Terrace location did not lend themselves to meaningful, long-term employment.
E. Mr. Smith's Appeal to WCB Review Board - Decision - March 14, 2003 [86] In January 2002, Mr. Smith appealed to the WCB Review Tribunal regarding a number of decisions that the WCB officers had made relating to his injury claim. One of the issues before the Review Tribunal was whether modified employment as a locomotive engineer was suitable for Mr. Smith. The Review Tribunal concluded in its March 14, 2003 decision on this question that Mr. Smith's pre-injury job as modified was not suitable given his compensable condition.
[87] The Tribunal concluded that the ideal job for Mr. Smith would allow him to sit, stand and walk as required. Standing while operating a locomotive is limited and there is little opportunity to walk around.
[88] The Review Tribunal awarded Mr. Smith vocational rehabilitation benefits and a loss of earnings award. It gave the option to WCB and CN to consider another position with CN or retraining him in a different vocation.
F. RTWP - June/July 2003 - Traffic Coordinator in Prince George [89] On April 15, 2003, shortly after the WCB Review Board decision, Todd McDonald, WCB Vocational Rehabilitation Consultant in Terrace, wrote to Tom Brown, Superintendent, CN Operations at Prince George.
[90] He suggested that WCB and CN move to vocational rehabilitation for Mr. Smith within the work restrictions that the WCB medical advisor had earlier confirmed.
[91] Mr. Brown replied to Mr. McDonald on May 7, 2003, offering to train Mr. Smith as a traffic coordinator in Prince George, B.C. This would consist of technical training in Vancouver and on the job training in Prince George. He believed that the position would provide Mr. Smith with optimum employment stability. He also noted that this job is for the most part sedentary and well within Mr. Smith's work restrictions.
G. RTWP No. 4 - Traffic Coordinator - Prince George, June/July 2003 [92] Tanya Gordon, who was now the CN return to work coordinator developed another transitional return-to-work plan for Mr. Smith, this time for the position of traffic coordinator at Prince George. Ms. Gordon is a registered kinesiologist with a speciality in vocational rehabilitation and disability management.
[93] The RTWP provided for CN sponsored training sessions, both at the Thornton Yard, Vancouver, for the technical, training from June 2 to June 27, 2003, and from June 29 to July 28 at Prince George for on-site practical training.
[94] In developing this RTWP, Ms. Gordon considered a number of factors such as the WCB designated work restrictions for Mr. Smith; the physical demands and working conditions, job analysis for the traffic coordinator and Mr. Smith's October 2002 functional capacity evaluation.
(i) Duties of a Traffic Coordinator [95] Traffic coordinators in Prince George are solely responsible for the operation of the Prince George Yard. They control the breakdown of trains entering the terminal and the building of trains exiting the terminal. They direct the yard crews in these yard operations. They are the contact for any customer issues and are the emergency contact within the Prince George terminal.
[96] The traffic coordinator works in an office setting. They may sit or stand at their desk. With the flexibility of the cell phone and portable radio, they are not required always to be at their desk. They can go outside in the yard, take a break, but must stay in radio or phone contact.
[97] The equipment used by the traffic coordinator includes a computer connected to the CN network, a portable radio, a radio at their desk, telephone, a cell phone, and a bank of monitors over the desk to monitor the yard operations via a set of cameras.
[98] The physical tasks for a traffic coordinator include entering data on the computer, reading data on a computer screen, watching the monitors and operating the radio or phone. These tasks can be done either sitting or standing.
[99] The heaviest thing a traffic coordinator may lift is a phone. It is one of the most sedentary of CN railroad jobs.
[100] Traffic coordinator is a safety critical position. They are the contact for any emergency in the yard or if a road crew within the area has an emergency. For this reason, it is critical that the traffic coordinator be accessible for the entire shift.
(ii) Mr. Smith's Concerns re: the RTWP for Traffic Coordinator [101] Initially, Mr. Smith was not in favor of this proposal. He told Mr. McDonald that he wanted CN to consider positions in Terrace before he would consider moving to Prince George. One of his reasons was that his wife's job was very important to her and she would not want to move.
[102] Prior to the commencement of the plan, Ms. Gordon discussed it with Mr. Smith. He had some concerns with the date that the plan was to start, that it was too rushed and that he had family commitments in June when he needed to be in Terrace. He also had concerns about how the training was to be undertaken, and that the training was to be done in Vancouver and not in Terrace.
[103] Ms. Gordon explained to Mr. Smith that the training materials and the training personnel were only available at Thornton Yard. Access to these resources was necessary.
[104] She also told Mr. Smith he would be paid the wage rate for a traffic coordinator during the training, and CN expected him to be on site for eight hours a day. Or if not in training, then at least at the gym doing his exercise program.
[105] CN would pay for his accommodation, transportation to and from Terrace and a per diem for expenses. As to his family commitments in June, Ms. Gordon adjusted the schedule so that he would be able to meet these commitments.
H. The Technical Training - Traffic Coordinator - Thornton Yard - Vancouver, June 2003 [106] Mr. Smith ultimately agreed to proceed with the RTWP although he continued to maintain that CN should accommodate him in Terrace.
[107] For its part, the Union accepted that Mr. Smith was capable of working as a traffic coordinator. The Union, however asked CN, no doubt at the urging of Mr. Smith, that Mr. Smith be given the traffic coordinator position in Terrace.
[108] CN could not agree to this. There was no operational requirement for a traffic coordinator in Terrace. The traffic coordinator in Prince George coordinated the Terrace terminal and the Edmonton traffic coordinator controlled the rail movement in the other centers outside of Prince George and Vancouver.
[109] Besides the lack of operational needs, it is not feasible for CN to have a single traffic coordinator in Terrace because it is a safety critical position and requires 24 hour/seven days/week coverage.
[110] The WCB, through Mr. McDonald, was in favour of training Mr. Smith for this position in Prince George and encouraged Mr. Smith to move forward. Ms. Gordon had provided Mr. McDonald with the RTWP and he approved it.
(i) Phase One of the RTWP - Thornton Yard, Vancouver [111] The RTWP was divided into two phases, classroom training at Thornton Yard and practical training in Prince George.
[112] For the first week, Mr. Smith was to do six hours of training. He had ample opportunity to get up, take breaks, walk around and change position when required. He had two hours each day to access the employee fitness centre, within walking distance from the office.
[113] Mr. Smith was to start at 8:30 and finish at 2:30, increasing to eight hours per day in the second week on Tuesdays and Thursdays. This would allow him to increase his tolerances and his endurance for working a full eight-hour shift.
[114] WCB had final approval over the RTWP and the final decision as to the suitability of the position. Mr. McDonald had requested weekly reports from Ms. Gordon as to how the plan was progressing and if there were any problems that needed to be addressed by WCB.
[115] Mr. Smith started his training on June 2, 2003. On June 6, 2003, Ms. Gordon met with Mr. Smith. He told her that he did not believe he was receiving the proper training as it was not in a classroom environment. She explained that the WCB wanted to expedite his return to work, the training was otherwise given only once per year and he would receive the full training for a traffic coordinator.
[116] Mr. Smith was provided with the training modules for the traffic coordinator position and one-on-one access to a manager familiar with the materials. He was also given access to the computer systems he would be working with in the position.
[117] Mr. Smith asked to be given a chair that that could accommodate his back problems. CN offered him several chairs in the office, including a receptionist chair, a steno chair, a high back Obusforme chair, but he was not able to find one that was suitable.
[118] Mr. Smith felt that CN did not make sufficient effort to find him an appropriate chair. He even offered to accompany a CN official to a chair store. But he would only do so during working hours, not after his shift ended. In the end, he asked that CN transport his personal chair from home to Vancouver and CN did so.
[119] According to CN, the chairs that were available to him were all chairs that met or exceeded the current ergonomic standards. They all had height adjustable backs, height adjustable seat pans and height adjustable arms.
[120] His personal chair was one piece in nature, without an adjustable back, arm rests