Law Times

Law Times • February 6, 2012 COMMENT I PAGE 7 should end debate on combining impairments 'm confident the December Court of Appeal for Ontario decision in Kusnierz v. Economical Mutual Insurance Co. will put to rest the appropriateness of com- bining physical and psychological injuries to determine catastrophic impairment for the purposes of the statutory accident ben- efits schedule. There's no doubt that Robert Kusnierz suffered significant injuries following his 2001 motor vehicle accident. His left leg was amputated below the knee. Due to cysts and deterioration of the stump, he often uses a walker or wheelchair rather than a prosthe- sis. He has had 10 different prostheses. Even with a prosthesis, he can walk well only on flat surfaces. In addition, he suffers from headaches and pain in his shoulders, neck, back, hips, knees, and right ankle. He lost his job and suffers from severe psychologi- cal symptoms that likely meet the diagnos- tic criteria for a major chronic depressive disorder. Not surprisingly, with such significant injuries, it didn't take long for Kusnierz to exhaust his medical and rehabilitation acci- dent benefits limit of $100,000. To qualify for enhanced benefits of up to $1,000,000, Kusnierz had to satisfy the court that he was catastrophically impaired. Under the legislated definition, that required a determination that the impairments result- ed in at least a 55-per-cent impairment of the whole person. His insurer, the Economical Mutual Insurance Co., agreed that combining the physical and psychological inju- ries would have satisfied the defi- nition of catastrophic impair- ment. But the insurer argued that previous case law permit- ting such a combination, as in Desbiens v. Mordini, was incor- rect and that combining physi- cal and psychological injuries to reach the 55-per-cent threshold wasn't allowed. Superior Court Justice Peter Social Justice have but didn't expressly forbid the combination of physical and psychological injuries. The appeal decision ought to put an end to any debate on the appropriateness of combin- ing physical and psychological impairment. Yet that debate Alan Shanoff Lauwers was sympathetic to Kusnierz, find- ing him to be "a credible and honest witness who did not embellish his evidence." Yet Lauwers, in attempting to use a purpo- sive analysis, concluded that the legislation didn't allow for combining injuries to estab- lish the 55-per-cent threshold. The Court of Appeal also used a pur- posive analysis but in doing so accepted the findings in Desbiens that the 55-per-cent threshold was designed so that "those with the greatest need for health care are able to recover the expenses of that health care." The appeal court concluded that "to disregard the mental and behavioural consequences of a person's injuries because they are too hard to measure would defeat the purpose" of the legislation. Further, the legislation could remains open on a political level due to the final report of the catastrophic impairment expert panel. The report stated that the panel "did not have the resourc- es to conduct a comprehensive review of the literature to deter- mine whether valid and reliable methods of combining physical and psychological impairment exist." Yet that didn't prevent the panel from stating that it "did not find that combining physical and mental/behavioural condi- tions can be achieved in a valid and reliable way with the currently available methods of impairment cross-rating." The panel then attempted to conclude that combination shouldn't be allowed as it "did not find suf- ficient evidence that combined impairment ratings are more clinically meaningful than using separate criteria." But surely the reasoning in the appeal court's decision in Kusnierz is sufficient to remove the doubts raised by the report and make the political decision easy to reach. If the purpose of the catastrophic impair- ment definition is to ensure that "those with the greatest need for health care are able to recover the expenses of that health care," combining physical and psychological impairments is just and fair no matter how difficult it may be to arrive at the methods to do so. Just as there was no doubt on how to combine the two elements in Kusnierz, there should be little uncertainty about how to arrive at a figure for other situations based on the need for health care. Remember that none of the money goes into the pockets of accident victims. It only covers reasonable and necessary medical and rehabilitation expenses. It's just as important to note the conces- sion made by the insurer before the appeal court in Kusnierz about how "there are only a very few cases where there are perma- nent physical impairment and permanent psychiatric impairments that are not cata- strophic if assessed separately, but are cata- strophic if assessed together." If that's the case, it's even more evidence for closing the debate in favour of accident victims. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. BY BRYCE CHANDLER For Law Times hardship. The crux of the matter is what is fair and reasonable L as far as the employer's responsibilities are concerned, an issue the Supreme Court of Canada and human rights commissions have wrestled with in the past. In the decision in Thunder Bay Catholic District School Board v. Ontario English Catholic Teachers' Association, the employer needed only to subsidize a percentage of the costs for the teacher's digital hearing aids. But does this mean employers must now subsidize health-care requirements such as wheelchairs, eyeglasses, and canes if such aids are necessary for a person to continue work- ing? The issue goes far beyond school boards. The June 2011 decision begs the question: is an employer now responsible for providing the full gamut of our universal health-care system on behalf of its employees? Would that include those employers that don't have a benefits program, those with part-time employees, and small businesses? Let's not forget that there's no legislation requiring an employer to have an employee health plan. Where do we draw the line in terms of employer responsibility to accommodate to the point of undue hardship? Let's explore this issue in more detail and go back to an earlier decision. In a 2007 grievance, Toronto District School Board v. E.T.F.O. (Mootilal), an arbitra- tion panel had to determine if the Toronto District School Board had to subsidize digital hearing aids for a teacher. The teacher, who had a 70-per-cent hearing loss, decided to upgrade her analogue hearing aids with better-quality devices. The Toronto board's policy was to allow for a lifetime benefit of $400 for hearing aids. In the Mootilal case, the teacher received $1,000 from a government assis- tive devices fund but still owed $2,470 to the supplier. On her behalf, the Elementary Teachers' Federation of Ontario grieved the board's refusal to subsidize the remaining cost. It argued the board had a duty to accommodate "personal bodily assistive devices" that were necessary for the teacher to do her job. A majority of the board of arbitration denied the grievance on the basis that the duty to accommodate didn't oblige the employer to pay for personal assis- tive devices. As well, the board of arbitration said the In allowing the grievance, the arbitrator held ast June, an arbitrator opened up a potential can of worms in ruling that a school board must subsidize digital hearing aids for a teacher as part of its duty to accommodate short of undue u SPEAKER'S CORNER employer's policy not to provide personal assistive devices wasn't discriminatory because it wasn't a "stan- dard governing the performance of work." Indeed, the board of arbitration questioned whether the duty to accommodate an employee with a disability required providing modifications to the staff member's body or whether the employer could limit its accom- modation to modifying the workplace or the job itself. The board of arbitration found that nothing forces employees to equip themselves with such devices. It concluded that the employer, in fulfilling its duty to accommodate, had only to "modify the workplace, including such factors as the work environment, the job assignment and/or the work methods and tools, to the point of undue hardship" and not to "supply such things as personal bodily assistive or prosthetic devices when requested by the employee as his or her preferred means of accommodation." In the Thunder Bay case, the board had already spent $10,000 to modify the teacher's workplace by construct- ing a new office for her out of soundproof material and installing a specialized hearing-impaired telephone for her exclusive use. The board also contributed to the pur- chase of a digital microphone at a cost of approximately $500. In effect, the board took the 2007 Mootilal decision and modified the workplace accordingly. Two years later, a doctor said the woman in the Thunder Bay case should get digital hearing aids, so she purchased them at a cost of more than $2,000 each. Then the teacher submitted the invoices and medi- cal documentation to the board for reimbursement. The board relied on its internal policy and refused to reimburse her. In line with the Mootilal decision, the board disputed that it had any obligation to provide personal bodily assistive devices, including eyeglasses and prosthetics. It argued its obligation to accom- modate stopped at making reasonable changes to the workplace or methods of performing the work short of undue hardship. That ultimately led to a grievance. The union grieved the board's decision on the basis that the teacher needed the digital hearing aids in order to perform her duties. It argued the board had violated the collective agree- ment and the Ontario Human Rights Code by failing to consider the purchase of the hearing aids as part of reasonable accommodation. www.lawtimesnews.com that the ability to communicate effectively with pupils, parents, and colleagues was a statutory obli- gation and, therefore, created a workplace standard that would judge a teacher's performance. The arbitrator then found the board's policy too narrowly construed its obligations to accommodate employees with disabilities. The arbitrator said the digital hearing aids were necessary accommodative measures for the griever. In this respect, the arbitrator distinguished Mootilal by finding that the griever had medical evidence showing that she absolutely required digital hearing aids in order to perform the essential requirements of her job as a teacher of special education and advanced English. However, the arbitrator did find some merit with the board's position that it didn't have to subsidize the entire cost of digital hearing aids since the teacher also used them in her personal life. The board submitted that, based on the school calendar, the griever was at work for only 17.5 per cent of the year. Persuaded by this argument, the arbitrator found that the board was responsible only for that portion of the costs. Based on the Thunder Bay decision, we can reach the following conclusion: While employers may deter- mine appropriate accommodation for their staff, they may not exclude consideration of certain types or forms of it. At first glance, this doesn't seem to change the rules since an employer doesn't have to provide perfect accom- modation and an employee must still accept reasonable actions. But I question whether this ruling will place additional onus on employers in terms of medical benefits. In the Thunder Bay decision, the arbitrator respond- ed to the employer's argument about opening the floodgates to claims by stating that employees seeking assistance for things like eyeglasses, medicines, and prosthetics would have to show that other appropriate means couldn't accommodate them and that accommo- dation wouldn't result in undue hardship. Despite these comments, we can expect to see an increase in claims for reimbursement from employees who need per- sonal bodily assistive devices to perform the bona fide occupational requirements of their positions, especially from those who don't have comprehensive employer medical benefit plans. Bryce Chandler is an associate with Shibley Righton LLP's Windsor, Ont., office. His practice is primarily focused on labour and employment law, as well as education and administrative matters. LT Should employers have to cover workers' hearing aids? Kusnierz

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