Solving the Self Serving Medical Notes Puzzle – Allison Taylor

By: Allison Taylor

The decision of the Human Rights Tribunal of Ontario in Sean Carter v. Neurologic Rehabilitation Institute of Ontario (2011) shows the importance of medical notes in human rights cases and how medical documentation will often not be sufficient to support a disability or an obligation to accommodate on an employer’s part.

The Facts

Carter was employed for 18 months by the Institute as a program coordinator in a residential rehabilitation facility. His position was both therapeutic and supervisory. In March 2008 he was injured a motor vehicle accident which required him to be off work for a month, during which time he received WSIB benefits. He gradually returned to work in April 2008, sought no further accommodation with respect to these issues and went back to full-time duties in July 2008. He was terminated in December 2008.

Carter claimed that he was treated differently from other employees after his return to his job, including being reprimanded and disciplined more than other employees. At roughly the same time, his uncle and nephew passed away, resulting in emotional distress. Carter took a few days of bereavement leave at the time of the death of his nephew. He alleged that he had made repeated requests for time off work to deal with stress and depression. However, he did not submit any documents suggesting that he was suffering from a disabling condition. The Institute’s position was that it had received no such information and that these issues were not drawn to its attention.

Carter’s job performance in 2008 was very poor and certain deficiencies were documented as a result. Performance improvement plans for Carter were put in place in August and again in September 2008. His supervisor expressed concern about his lack of judgment. In November 2008 another note was sent to Carter documenting concerns about his performance, in particular his failure to return to work after a personal appointment without informing his supervisor and to attend at the hospital to meet with a new patient to prepare for the patient’s transfer to the Institute. A letter was then sent to Carter advising him of his deficiencies and warning him that should he not show improvement by December 15, 2008 he would be demoted to rehabilitation therapist.

On December 1, 2008 Carter sent an email to the Institute indicating that he had gone to see the doctor “for some results and that (he was) going to be off for 6 to 8 weeks”. Although the email promised medical documentation, none was received. Carter spoke to the Institute’s Director of Administration and when she confirmed that the medical documentation had not been received, he said he would re-fax it, that he was going to have a “procedure done” and that it “wasn’t cancerous but . . . he had to have it removed”. The note received confirmed that “due to medical reasons, this patient should remain off work for the next 6 – 8 weeks”. No further information was provided about the condition being treated or its impact on his ability to work.

The Termination

In the meantime, the case of the patient on whose transfer from hospital to the Institute Carter had been working had heated up. Carter had assured the team supporting the patient that medications would be ordered, but had failed to do so, and as a result the patient was without medication. He had also failed to train the staff on the special requirements of the patient. Although Carter’s position was that, as he had been off the job as of December 2, 2008, the transfer of the patient was no longer his responsibility, the Institute terminated his employment for his mishandling of these issues. Carter filed an application with the Tribunal alleging discrimination and reprisal.

The Decision

At the hearing, Carter’s evidence with respect to his adverse treatment resulting from his car accident and the stress and depression related to the deaths of his relatives was unsubstantiated by any evidence. Carter was found not to have disclosed the existence of a disability requiring accommodation up to December 1, 2008 when he went off work. His reference to “tests results” and “having procedures done” did not give any information about any functional limitations related to his ability to work. Even at the hearing, he did not bring any supporting evidence with respect to the existence of a disability or any functional limitations. As such, the finding of the Tribunal was that the Institute did not know, nor could it reasonably have known, of the existence of a disability requiring accommodation at the time it terminated him. Moreover, because he was terminated for clear job-related reasons, it held that the termination was unrelated to his request for time off work for medical reasons and was not a reprisal. As such, his application was dismissed.

Lessons for Employers

This case demonstrates that even in the human rights context, the principles of cause and effect must be observed. The bald medical note provided did not indicate what the restrictions and limitations were, and the decision maker made the decision to terminate the employment on the basis of events utterly unconnected to the request for time off. Short of disclosure of a medical condition affecting the ability to work and a need for accommodation, the employer is entitled to take the position that there is nothing to accommodate. In this case, the fact that the employee played his cards so close to his chest made him unable to benefit from the protections of the Human Rights Code.

Stringer LLP is commencing a new webinar series to assist employers in managing these difficult issues when dealing with absentee employees. Please visit our webinar announcement page for more information.