Williams HR Law LLP

INDEPENDENT MEDICAL EXAMINATIONS

September 13, 2017

[vc_row][vc_column width=”1/4″][vc_single_image image=”2561″ img_size=”large”][/vc_column][vc_column width=”3/4″][vc_column_text]When an employee is injured or suffering from a disability having clear information about work limitations and prognosis is integral to an effective accommodation process.

However, sometimes information obtained from an employee’s treating physician about work limitations and prognosis is unclear or incomplete. In such situations, employers may wish to have an independent medical evaluation (“IME”) conducted. An IME is an objective, third-party medical exam, conducted by a physician other than the employee’s treating physician.

On August 25, 2017, the Ontario Court of Appeal refused leave to appeal a decision that found an employer’s request for an IME was part of a good faith accommodation process, and it was unreasonable for the employee to refuse to undergo the IME.

In Bottiglia v Ottawa Catholic School Board, the Divisional Court considered the application of an employee seeking judicial review of a Human Rights Tribunal of Ontario (“HRTO”) decision. Mr. Bottiglia, a teacher and later superintendent of the Ottawa Catholic School Board (“the “Board”) went on sick leave in April 2010 for stress and anxiety. His paid time off was set to end in October 2012.

Mr. Bottiglia was diagnosed in 2011, and the Board received updates on his condition from his psychiatrist. Initially, Mr. Bottiglia’s psychiatrist informed the Board directly that his patient was resistant to treatment and required a prolonged period off work. However, the Board later received medical information through Mr. Bottiglia’s lawyer stating that Mr. Bottiglia’s condition was improving and that he would be able to return to work in late 2012. The Board was concerned about the accuracy and reliability of the assessment of Mr. Bottiglia’s fitness to return to his duties, particularly since the proposed date coincided with the end of Mr. Bottiglia paid time off.

The Board decided to request an IME to determine Mr. Bottiglia’s ability to conduct the supervisory duties of his role and to identify any accommodation necessary for his return to work. Mr. Bottiglia refused to undergo the IME and resigned from his employment with the Board in 2012, without ever returning to work. He launched an application to the HRTO alleging discrimination based on the Board’s failure to accommodate his return to work. The HRTO dismissed the application, finding that Mr. Bottiglia and the Board were engaged in a good faith accommodation process, and that in that context it was unreasonable for Mr. Bottiglia to refuse the IME.

The Divisional Court dismissed Mr. Bottiglia’s application for judicial review of the HRTO decision. The Court found that the Board’s request for an IME was reasonable given that mere months before his proposed return the Board received medical information stating Mr. Bottiglia was unfit for work, and his return coincided with the end of his paid leave. As a result, the Board lacked confidence in Mr. Bottiglia’s medical team, and was therefore not obliged to rely on further medical information from that team, but was entitled to give the information it had about Mr. Bottiglia to its proposed independent medical examiner.

The decision clarifies when an employer can request an IME, and when employees are obligated to accede. If an employer has reasonable basis to question the adequacy and reliability of the medical information provided by the employee and the legitimacy of the related accommodation proposed by the employee, seeking an IME to appropriately fulfill accommodation obligations to the employee is reasonable.

Bottiglia also cautions employers on how to properly obtain an IME. The employer must be careful not to impair the independent medical examiner’s objectivity. The employer must also respect the employee’s privacy and not provide the examiner with information beyond what is required to determine the necessary accommodation. In Bottiglia, the employer informed the medical examiner of its concerns that Mr. Bottiglia’s return to work was motivated by money rather than by a fitness to once again perform his duties. As such, the employer ran a substantial risk of impairing the examiner’s objectivity and biasing the IME. That Mr. Bottiglia would have had an opportunity to refute the employer’s assertions when he met the examiner would have only increased the potential of impairing the examiner’s objectivity.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

[/vc_column_text][/vc_column][/vc_row]

Expertise