Health Professions Review Board

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: Facsimile: Toll Free: (within BC) Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 DECISION NO HPA-0027(d) In the matter of an application under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, for review of a complaint disposition made by an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Registered Nurses of BC COLLEGE AND: A Registered Nurse REGISTRANT BEFORE: A Panel of the Health Professions Review Board Donald A. Silversides, Q.C., Panel Chair Judith Berg, Member Karin Rai, Member DATE: Conducted by way of oral hearings on December 12, 2010 and January 10, 2011 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Jason K. Herbert, Counsel Sari A. Wiens, Counsel HEARING DECISION I DECISION [1] Upon considering an application made by the Complainant pursuant to section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the Act ) for a review of a disposition made by the inquiry committee of the College (the Inquiry Committee ) on June 25, 2009, the Health Professions Review Board (the Review Board ) orders the disposition be confirmed. II INTRODUCTION [2] The Complainant is employed as a bus driver by Coast Mountain Bus Company ( CMBC ), a company which provides transit services in the greater Vancouver area.

2 DECISION NO HPA-0027(d) Page 2 The Complainant suffers pain from a chronic neck condition which is aggravated by certain movements. In early 2008, he began driving the new Nova model bus acquired by CMBC. The Nova model is configured differently from the New Flyer model of bus which he had previously driven. The Nova bus front passenger entrance way is located further back from the driver s seat than on the New Flyer bus. The different location of the Nova bus entranceway requires the Complainant to rotate his head and neck frequently which causes his pain to increase significantly. [3] After consulting his family physician ( Dr. A ), the Complainant asked CMBC to accommodate his medical condition by allowing him to continue to drive the type of bus he had previously driven. As a result, the Complainant was referred to the Occupational Health Division of CMBC (the OHD ) where he dealt with the Registrant who was employed by CMBC as an occupational health nurse in the OHD. [4] The Registrant wrote letters to Dr. A dated February 19, May 27 and June 5, 2008 in which she asked Dr. A to answer several questions regarding the Complainant s medical condition and his ability to perform various types of work. These letters also contained statements regarding CMBC s policies relating to the assignment of buses to its drivers. [5] The Complainant complained to the College that the Registrant had breached her professional obligations and abused her authority in her correspondence with Dr. A, both by making incorrect statements and by asking what the Complainant considered loaded questions which were intended to elicit a response that would be detrimental to his request for accommodation by CMBC. After investigating the complaint, the Inquiry Committee decided, pursuant to section 33(6) of the Act to take no further action with respect to the complaint. III ISSUES [6] The issues to be determined are: IV (a) whether the investigation conducted by the Inquiry Committee with respect to the complaint was adequate; (b) whether the disposition of the complaint by the Inquiry Committee was reasonable; (c) what order the Review Board should make pursuant to subsection 50.6(8) of the Act after completing its review. RELEVANT LEGISLATION, BYLAWS AND POLICY [7] The application by the Complainant to the Review Board has been made pursuant to subsection 50.6(1) of the Act. The relevant provisions of the Act with respect to this review are subsections 50.6(5) to (8), inclusive, as follows:

3 DECISION NO HPA-0027(d) Page 3 (5) On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following: (a) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. (6) A review under this section is a review on the record; (7) The review board may hear evidence that is not part of the record as reasonably required by the review board for a full and fair disclosure of all matters related to the issue under review; (8) On completion of its review under this section, the review board may make an order (a) (b) (c) confirming the disposition of the inquiry committee, directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or sending the matter back to the inquiry committee for reconsideration with directions. [8] Rule 43 of the Rules of Practice and Procedure for Reviews under the Act deals with the notice and form of hearing and the relevant provisions of that rule are as follows: 43 (2) Hearings will be oral hearings unless the review board directs otherwise. (3) The review board may direct, on its own initiative or on the request of a party, that a review hearing be conducted in-person, in writing or by using an electronic format such as video or teleconference or by internet, or any combination of these formats. V EVIDENCE AND FACTS [9] Since this panel heard evidence that was not part of the record of the investigation and the Inquiry Committee s disposition (the Record ), the panel has determined it would be appropriate to comment briefly on the hearing process, especially as it relates to the hearing of additional evidence. [10] Pursuant to Review Board Rule 43(2), all hearings are conducted orally unless the Review Board directs otherwise. The exception to oral hearings recognizes that there are some cases where hearings should not be oral, such as when the parties agree to a different form of hearing, the issues are largely questions or law or it is impractical, unnecessary or unjust for the hearing to be oral. Hearings which are not conducted orally are, however, the exceptions to the usual hearing procedure.

4 DECISION NO HPA-0027(d) Page 4 [11] The Review Board s normal practice of conducting oral hearings is designed to ensure the Review Board s process is legitimate, transparent and accountable. There are several reasons why oral hearings help to achieve this objective. One is that most complainants never have the opportunity to meet with those persons at the college who have made a decision regarding their complaint and complainants rarely have legal representation for their application for a review. For such complainants it is important to have one opportunity to personally present their case to the independent body which will be reviewing the disposition by the College of their complaint. A second reason is that an oral hearing allows registrants to appreciate the Review Board process and demonstrates that the Review Board is committed to undertaking a full, fair and impartial review of the adequacy of the investigation by the College and the reasonableness of its disposition. A third reason is that it enables the Review Board to ensure it has all the information necessary for a fair review and to allow the Review Board to ask questions of the college, where appropriate, regarding its investigation process. The answers to those questions, which may be very important to the ultimate outcome, may not always be apparent on the information contained in the Record. [12] While section 50.6(6) of the Act requires the Review Board to conduct its review on the Record, the legislature has not fettered the Review Board with strict rules regarding new evidence as if the Review Board were an appeal court nor has it limited the Review Board in what it may hear, as it has with other tribunals. For example, the Financial Services Tribunal is limited by section of the Financial Institutions Act, R.S.B.C. 1996, c. 141, as amended, to appeals which are on the record based on written submissions unless the tribunal permits oral submissions or permits the introduction of evidence if the tribunal is satisfied that new evidence has become available or has been discovered that is substantial and material to the decision and did not exist at the time the original decision was made or did exist at that time but was not discovered and could not, through the exercise of reasonable diligence, have been discovered. Instead, section 50.6(7) of the Act allows the Review Board to be flexible regarding what evidence it will hear by permitting the Review Board to hear evidence that is not part of the Record as reasonably required for a full and fair disclosure of all matters relating to the issues under review. [13] Evidence that is reasonably required for a full and fair disclosure of all matters related to the issues under review may include helpful background evidence which will assist the Review Board to understand the complaint and the context in which the College undertook its investigation, evidence regarding or elaborating on the investigation process, evidence which supports an allegation that the findings of the College were unreasonable and evidence relevant to an allegation that key matters were not investigated or discovered by the College and that this resulted in its investigation being inadequate. [14] In Decision No HPA-0001(a) 0004(a), the Review Board reviewed the appropriateness of strict criteria for admitting new evidence proposed by counsel for the college and the registrants in that matter and concluded those criteria were too narrow and were not consistent with the language of the Act or the practical realities of Review Board hearings. The panel made the following comments in paragraphs 69 to 71 of that

5 DECISION NO HPA-0027(d) Page 5 decision which this panel adopts as the correct approach to be taken in considering whether new evidence should be heard: [69] Both counsel for the College and counsel for the Registrants submitted that there are specific constraints against admitting new evidence and that certain criteria that must be met before doing so, namely, that new evidence should not be admitted unless it: (a) (b) (c) is of such nature that it could not have been produced by the Complainant through due diligence in the course of College s investigation of the complaints; is substantially different from information already provided in the Record; and, could reasonably be expected to have affected the Inquiry Committee s consideration of the College s complaints if the Committee had knowledge of it. [70] In addition to the College and Registrants submit: Fresh evidence is admissible on appeal only if the party submitting it can demonstrate that it could not have been obtained with reasonable diligence for use at the hearing below, that it will probably have an important influence on the result of the case, and that it is credible. [71] In our opinion the suggested constraints and criteria are too narrow and do not reflect the plain language used in section 50.6(7) of the Act. On this subject, the British Columbia legislature has intentionally given the Review Board a more flexible test to apply than the traditional fresh evidence rules that apply to courts and to the Ontario tribunal. What is reasonably required for a full and fair disclosure of all matters related to the issues under review is a decision for the Review Board, acting in good faith, to decide on a case by case basis, according to the matters at issue on a particular review. In this case, we have admitted some fresh evidence and rejected evidence that has no relevance to the issues we are called upon to decide. That decision was based on our review as to whether the evidence was reasonably required to fully and fairly deal with issues under review. To make that determination in this case, we first assessed whether the new evidence is relevant. If it is then we asked generally: (a) (b) (c) how relevant is the material to the matters at issue on the review? would it be fair to all parties to admit it? does admission of the information render the disclosure more full or complete so as to enable the Review Board to render a full, fair and proper decision? [15] In some cases, the Review Board will need flexibility to hear evidence that is not part of the Record in order to assess the adequacy of an investigation. Sometimes the only way to show that an investigation was inadequate is to adduce the evidence that the complainant says was critical but that the college failed to consider. The purpose of receiving such evidence is not to conduct an investigation or to make investigative

6 DECISION NO HPA-0027(d) Page 6 findings but only to determine whether the investigation by the college was adequate. In some cases, such evidence may also affect the nature of the order the Review Board makes pursuant to section 50.6(8) if it determines an investigation was inadequate. [16] The Review Board s hearing process must not be confused with, and does not transform, its substantive mandate. It does not supplant the inquiry committee s role to conduct an investigation respecting the complaint. Lambert J.A. described the difference between a trial de novo and a true appeal in Dupras v. Mason [1994] B.C.J. No (page 7) where he said the following: 15. The distinction between a trial de novo and a true appeal is that in a trial de novo the question before the court is the very question that was before the Chief Gold Commissioner, namely, was the claim located or recorded according to the Act and Regulations, whereas in a true appeal the question before the Court is whether the Chief Gold Commissioner made a reviewable error of fact, of law, or of procedure. A trial de novo ignores the original decision in all respects, except possibly for the purposes of cross-examination. A true appeal focuses on the original decision and examines it to determine whether it is right or wrong, flawed or unflawed. [17] The hearing process of the Review Board does not ignore the original decision of an inquiry committee in all respects and does not constitute a trial de novo. The Review Board s hearing process does not change the nature or substance of its decisions, which continue at all times to be a review of the adequacy of the investigation which was conducted and the reasonableness of the disposition made by the inquiry committee of a college. [18] The ability to be flexible in the manner in which the Review Board conducts its hearings and in what evidence it will hear allows it to effectively exercise its specialized mandate and to avoid having to engage in numerous legalistic rulings and the cost and delay which they create. This panel s review of this application was based on the prudent exercise of this flexibility which was the foundation on which the panel s decision was made. [19] In Decision 2009-HPA-0027(c), it was determined that in addition to the Record, the Review Board would hear and consider the following documentary evidence: (a) the reasons for decision made by the British Columbia Human Rights Tribunal dated February 18, 2008 styled National Automobile, Aero Space, Transportation and General Workers of Canada (CAW-Canada), Local 111 v. Coast Mountain Bus Company (No.9), 2008 DCHRT 52; and, (b) an arbitration award dated December 29, 2004 made by Joan M. Gordon in the matter of an arbitration between Coast Mountain Bus Company and Canadian Autoworkers, Local 111 with respect to the Christopher Watson Termination Grievance (the Arbitration Award ); [20] This documentary evidence was heard and considered by this panel only for the purpose of providing background information but it was nonetheless reasonably required to allow the panel to fully understand the context of this application for review

7 DECISION NO HPA-0027(d) Page 7 and the context in which the Inquiry Committee conducted its investigation and made its disposition. [21] At the hearing of this review, a fellow employee of the Complainant ( Mr. B ), who is the representative of, and job steward for, their union, testified. The Complainant also testified at the hearing. [22] The Complainant has been employed by CMBC as a transit operator since August, [23] Sometime in late 2007 CMBC acquired a new type of bus described as a Nova model bus and in early 2008 the Complainant began driving the Nova buses in the place of the type of bus he had previously driven, described as a New Flyer model bus. After CMBC acquired the Nova buses it continued to operate two types of the older style New Flyer buses. One type of New Flyer bus was a non-articulated 40 foot bus and the other was a longer 60 foot articulated bus. [24] Mr. B testified that during 2008 CMBC continued to operate the 40 foot New Flyer buses and that they were available to be driven by the Complainant. His evidence was that the Complainant was a senior employee of CMBC and, as such, he had the right in priority over less senior employees to select or sign for bus routes on which he wanted to drive. He testified that, at the relevant time, the Complainant had signed for routes on which the bus he would drive would be a 40 foot New Flyer bus and that the Complainant never refused to sign for a route in which a New Flyer bus was used. [25] Several photographs of the Nova type of bus, the 40 foot New Flyer type of bus and the articulated New Flyer type of bus were entered as evidence at the hearing. These photographs showed the location of the driver s seat in relation to the front passenger entranceway. Mr. B testified drivers are required to observe and greet passengers as they enter a bus. In addition to greeting passengers, drivers scrutinize the fares paid and look for inappropriate packages and dangerous goods. He also testified it is much more difficult for a driver to see passengers entering the Nova type of bus than it is for either of the two New Flyer types of buses and that in order to properly monitor passengers entering the Nova model of bus a driver must frequently turn their head. [26] The Complainant testified he suffers from a herniated disk with a bone spur on the left side of his neck and that this is a degenerative condition. He was first diagnosed with this condition in 1999 after he was assaulted while driving a bus for CMBC. It was later exacerbated by a second assault he suffered while driving a bus for CMBC. He also suffers from back pain due to a spinal condition diagnosed as cervical spine spondylosis (degenerative arthritis). He testified that his medical condition allows him to drive the 40 foot New Flyer buses without pain but that his medical condition causes him pain when he drives the articulated 60 foot New Flyer buses because of what he described as a weird torquing motion which causes the driver to wobble back and forth. He alleviates the back pain when driving the articulated New Flyer buses by using an Obus Forme back support.

8 DECISION NO HPA-0027(d) Page 8 [27] The Complainant s neck pain was substantially increased when he drove the Nova buses because of the location of the driver s seat in relation to the front entranceway. When driving a Nova bus it was necessary for him to turn his head toward the door every time the bus stopped and since some bus routes have 50 or more stops per hour, he was frequently required to turn his head almost once every minute. The Complainant testified that when driving the Nova buses he developed extreme pain and although he took Ibuprofen and Tylenol they were ineffective to relieve the pain. He therefore consulted his physician, Dr A, in February, [28] In a letter dated February 7, 2008 written by Dr. A to CMBC to the attention of the OHD, Dr. A stated: I have been attending [the Complainant] as his physician for over ten years. He suffers from a chronic neck condition that causes pain and is aggravated by certain movements. [The Complainant] has been operating the Nova style bus 9600 series, which Coast Mountain Bus Company has introduced to its fleet, for over one month. The position of the driver s seat and the passenger door is different from the previous style buses. The Nova style bus requires [the Complainant] to rotate his head and neck frequently and these movements have been causing his pain to increase significantly. It is my urgent recommendation that [the Complainant] will drive only the old style busses on his shift due to his medical condition. [29] After consulting with Dr. A, the Complainant concluded he had a physical disability which prevented him from driving Nova model buses. He believes that CMBC had a duty to accommodate this disability by allowing him to drive the 40 foot New Flyer buses which he could continue to operate without any problems and he asked CMBC to allow him to do so. [30] The Complainant testified that in early 2008 CMBC continued to use 40 foot New Flyer buses as well as the 60 foot articulated New Flyer buses on various routes. He said that while the use of the 60 foot buses was restricted to certain routes because of turning difficulties, the 40 foot New Flyer buses could be used on any route. Certain bus routes are more desirable than others for drivers. The Complainant took, and continues to take, the position that CMBC had a duty to accommodate his medical condition not only by allowing him to sign for a route on which a 40 foot New Flyer bus was being used but also by permitting him to sign for any route of his choice and to assign a 40 foot Flyer bus to that route. He believes he has earned the right through his seniority to choose a more desirable bus route and that CMBC has the obligation, once he has selected his route, to ensure that a 40 foot New Flyer bus is assigned to that route for him to drive. [31] After February 15, 2008, the Complainant refused to, and did not, drive the Nova style bus. He continued to drive both the articulated New Flyer buses and 40 foot New Flyer buses. He testified that for some period of time, CMBC did accommodate his medical condition by allowing him to drive the 40 foot New Flyer bus on routes for which he signed. CMBC did this by leaving a 40 foot New Flyer bus parked against the fence in the yard where the bus routes began so that he would be able to drive it on his

9 DECISION NO HPA-0027(d) Page 9 chosen route for the day. This accommodation continued until October, 2009 when CMBC stopped making a 40 foot New Flyer bus available for him. [32] The Record contains a copy of two pages of handwritten notes made by the Registrant with respect to the Complainant. It contains 18 entries made on different days commencing on February 11, 2008 and ending on July 17, 2008 (the Registrant s Notes ). [33] In an entry dated February 11, 2008, in the Registrant s Notes, the Registrant stated that she had received a telephone call from the Complainant s supervisor ( Mr. C ) informing her that the Complainant had given him a doctor s note advising that he can t drive Nova buses due to neck pain; needs another bus. (Mr. C) advised that Operations can not assign buses (i.e. different styles) + Nova s are the company standard replacing old buses. [34] After Dr. A s letter was received by the OHD, the Complainant, at the request of the Registrant, which was communicated to him by a CMBC manager, signed a release of information authorization by which he gave permission to Dr. A to release medical information regarding his fitness to return to work to the Registrant. It should be noted that, although the form stated the information was regarding his fitness to return to work, this was incorrect because the Complainant was still working. [35] By way of a letter dated February 19, 2008, the Registrant, as a member of the OHD, wrote to Dr. A in response to his letter dated February 7, 2008 stating that the Complainant had asked the Registrant to contact Dr. A and asking Dr. A to answer several questions regarding the Complainant s medical condition and his ability to perform various types of work. Dr. A responded to these questions by endorsing his answers on a copy of the Registrant s letter and returning it to her. [36] The Registrant s February 19, 2008 letter to Dr. A contains the following relevant statements and questions: [The Complainant s] supervisor has advised me that CMBC Operations are unable to guarantee a specific style of bus due to operational needs. It should be noted that future plans are to replace all older buses, including the current Flyer model, with Nova buses. A Job Demands Analysis, which is enclosed, was completed in 2005 on a Flyer bus. At that time there were no Nova buses in use. WCB and an Ergonomist conducted a work site assessment on both a Nova and Flyer bus on Feb 12, We are awaiting the report, which will objectively show the job demands required for both buses. [The Complainant] has requested that I contact you, and his signed consent is enclosed. To assist in this situation, please answer the following questions: 2. If a Flyer bus were unavailable, would he be able to drive a Nova bus occasionally? If yes, please define the maximum time frame that would be allowed.

10 DECISION NO HPA-0027(d) Page Is he receiving any treatment that can improve his neck rotation so he can drive a Nova bus? If so, please specify. 4. Are these restrictions temporary or permanent? If temporary, can you specify the prognosis for return to full duties or the date of reassessment? 5. If he is unable to function in operating a Nova bus, there are temporary alternate jobs available. Please review the enclosed Job Demands Analysis for Building Service Worker, Interior Cleaner and Modified Serviceperson and advise if they are suitable options? Building Service Worker Yes No Interior Cleaner Yes No Modified Serviceperson Yes No 6. Additional comments: [37] Dr. A s handwritten response, which he endorsed on the February 19, 2008 letter from the Registrant, to her questions was as follows: (a) in response to question 2, No ; (b) in response to question 3, Will not be able to drive Nova buses ; (c) in response to question 4, Permanent ; (d) in response to question 5, [The Complainant] is scheduled to see a specialist for advice ; and, (e) in response to question 6, According to the patient Flyer buses are available for his work as a driver. [38] As anticipated by Dr. A, the Complainant did consult a physician specializing in sports medicine ( Dr. D ) who had first treated the Complainant for his neck injury following the 1999 assault. Dr. D wrote to Dr. A on April 25, 2008 and informed Dr. A that his advice was that the Complainant should avoid driving the Nova buses until there was a change in the requirement of frequent shoulder checks. The Record shows that the Registrant did not see this letter until, at the earliest, September 17, 2008 when the Complainant sent her a copy after being asked by CMBC to do so. [39] According to an entry in the Registrant s Notes, the Registrant received a risk factor analysis report prepared by an external jobsite evaluator (the Ergonomic Report ) on May 26, The evaluator described their engagement as follows: to evaluate the potential for neck injury while driving the Nova Bus. The configuration of the Nova bus places the driver s seat further forward in relation to the front bus doors when compared to the older buses in the fleet. It is claimed that the transit operator s forward seat position leads to neck pain/injury when the driver looks to the right to greet passengers boarding the bus. This report will limit its scope [sic] these claims of neck injury, specific to the Nova bus.

11 DECISION NO HPA-0027(d) Page 11 [40] The Ergonomic Report was based on a visit to the job site on February 12, 2008, interviews of two transit operators and an instructor from CMBC and a follow-up job site evaluation on March 4, 2008 when the author of the Ergonomic Report observed the amount of neck rotation required to effectively view passengers entering the Nova bus. The Ergonomic Report stated that on average a Nova bus would stop 77 times each hour and the average duration of each stop was 7 seconds. The Ergonomic Report concluded: Although the rotation of forward gaze exceeds the normal range of cervical rotation alone, the combined rotation of the trunk and neck along with the lateral shift of gaze results in neck rotation well within normal limits. The task of right neck rotation is performed on an occasional basis and without external force. It is therefore unlikely that turning the head to the right to greet passengers will result in injury. Simple education regarding the rotation of the thoracic spine during this task will likely increase driver comfort. This thoracic rotation can be promoted by suggesting that the driver reach across to the right side of the steering wheel with the left arm. [41] On May 27, 2008, the Registrant wrote to Dr. A stating that she had received the Ergonomic Report and that while she was not at liberty to release the report to Dr. A she included in her letter a quotation of the report s conclusions which are set out in paragraph 28 of this decision. [42] The Complainant takes the position that the Ergonomic Report was not relevant to the issue of whether his neck pain prevented him from driving the Nova style buses or whether his medical condition should be accommodated by CMBC because the information used to prepare the report was of a general nature and based partly on anecdotal reports by a few individuals and limited observations by its authors and that the report was not specific to the Complainant. He says that the best evidence regarding his ability to drive a Nova bus was that provided by him and his doctors and that CMBC and, therefore, the Registrant, had an obligation to inquire into and consider the Complainant s actual medical condition and the effect it had on him when he was required to drive a Nova bus. [43] Although the Complainant did not make a claim for compensation to the Workers Compensation Board of British Columbia (the WCB ), a claim was initiated by CMBC after it received a report from the Complainant that he had suffered neck pain as a result of being assigned Nova buses to drive and that this pain was attributed by the Complainant to the differences in the seat position and the door. WCB considered whether the Complainant had incurred a personal injury consisting of either a new neck injury or an aggravation to his pre-existing neck condition that arose out of and in the course of his employment while operating the Nova bus. By way of a letter dated May 22, 2008 addressed to CMBC, WBC denied the claim submitted by CMBC for the Complainant and stated: I referred your claim to a Board medical advisor who also attended this site visit and an additional one site visit in March She reviewed the medical evidence submitted to file as well as the ergonomic report and provided her medical opinion that:

12 DECISION NO HPA-0027(d) Page Medically, there is less than a 50% probability that looking to the right to greet passengers on the Nova buses was sufficient to materially aggravate, enhance or accelerate your pre-existing neck condition. She notes that any enhancement, aggravation or acceleration of this pre-existing condition may occur if significant force is applied to the disc space or intervertebral disc region. There is no evidence of any force applied to this region while operating the Nova bus. 2. There is less than 50% probability that a neck injury such as a strain results from the controlled movement of turning your head to greet passengers. She states that awareness of symptoms when doing a task is not analogous to tissue damage from that task. The physician already noted symptoms come on with neck movements, that is a typical clinical symptom of your pre-existing condition. In the absence of an external force however, the awareness of symptoms with movement does not imply material worsening of the condition. Given the evidence submitted to file to date, I find there is insufficient evidence to support you incurred a new injury or aggravated, enhanced or accelerated your preexisting neck condition as a result of driving a Nova bus. Accordingly, I have denied your claim under Section 5(1) of the Act. This means no health care or wage loss costs will be paid. [44] An entry dated May 22, 2008 in the Registrant s Notes states: WCB claim denied. [45] The Registrant sent a letter dated June 5, 2008 to Dr. A on that date under cover of a fax transmittal sheet marked URGENT in large capitals letters. In that letter, she made the following statements and asked the following two questions: Further to my letter sent to you on May 27, 2008 regarding the outcome of the WCB ergonomic report worksite assessment of the Nova and Flyer buses, I am requesting your medical opinion on [the Complainant s] ability to drive. In your letter dated February 19, 2008 you wrote that [the Complainant] had full rotation and extension of his neck. You indicated that he could not drive a Nova bus, as this was a permanent restriction. You also indicated that the employee stated Flyers were available. The workplace does have Flyers available but these are usually assigned to specific routes and therefore the workplace cannot guarantee that a Flyer bus is available. However, [the Complainant] would be able to sign for a route that does have a Flyer available, which he has refused to do up to this date. The WCB ergonomic report concluded that the combined rotation of the trunk and neck along with the lateral shift of gaze results in neck rotation well within normal limits and that neck rotation is performed on an occasional basis and without external force. It also indicated that movement of the neck is in the horizontal plane. This would reflect that neck extension is not required. Based on this information please address that following questions: (If you feel you would better answer the questions after seeing the full report please contact me and I will gladly provide it for you.)

13 DECISION NO HPA-0027(d) Page In light of the evaluation from WCB regarding the Nova bus and based on the limitations that you have indicated please indicate if [the Complainant] is able to drive a Nova. If no, please provide the objective medical to support this. 2. If no, do you recommend [the Complainant] sign for a route that a Flyer bus is available for? [46] An entry dated June 5, 2008, in the Registrant s Notes states: Following discussion (with) super(visor) that Flyer buses available + Ee refused to sign for a route (with) a Flyer, OHN wrote Dr re: WCB report about this + above info from supervisor. [47] The Complainant was shown a copy of the June 5, 2008 letter written by the Registrant to Dr. A and concluded it contained misstatements of fact with respect to the availability of Flyer buses and his refusal to sign for a route and that the wording of the two questions posed by her was an attempt to shift the burden of accommodation of his medical condition from CMBC to him. On June 27, 2008, the Complainant wrote to the Registrant and stated: On February 15 th, 2008 I signed a Release of Information form, in good faith, authorizing you to contact my doctor, [Dr. A], to obtain medical information that would assist you in understanding my disability. I now revoke that authorization and I instruct my doctors not to release any further medical information to you, or your department without my permission. Several days ago I saw my doctor and the letter that you sent him dated June 5 th, In this letter you misrepresented the facts. You state that: The workplace does have Flyers available but these are usually assigned to specific routes and therefore the workplace cannot guarantee that a Flyer bus is available. However, [the Complainant] would be able to sign for a route that does have a Flyer available, which he has refused to do up to this date. Would you please look and see what buses are on the 135 line that I signed for the June sheet and the last sheet! The Flyer buses can be assigned to any run without a problem and can certainly be assigned to my runs as the Duty to Accommodate laws dictate. Your question number 2 is nothing more than an attempt to shift the Duty to Accommodate off of the CMBC and on to me. It attacks my right to sign work that my hard earned seniority allows me to. This, in my opinion, is very underhanded and oversteps your authority. I suggest that you did this hoping that my doctor would not understand how seniority works and how this would negatively impact my rights and work environment. You tried to not only take advantage of my doctor, but also the privilege that I extended to you with the authorization form of February 15 th, [48] On July 2, 2008, Dr. A wrote to the Registrant informing her that he would be unable to provide her with any further information regarding the Complainant as he had withdrawn his previous authorization allowing Dr. A to disclose his personal information. [49] The Complainant s new supervisor ( Mr. E ) wrote a letter to the Complainant dated September 2, 2008 which was read to him by Mr. E on that date. The text of that letter is as follows:

14 DECISION NO HPA-0027(d) Page 14 On February 7, 2008, you gave a copy of a letter from your physician to your supervisor. This letter stated that you suffer from a chronic neck condition, which is aggravated by certain movements. Your physician recommended that you not operate a Nova bus. On February 15, 2008, CMBC agreed to temporarily accommodate your request to not operate Nova buses. We advised you that this would be allowed until an independent company completed a Risk Factor Analysis on the ergonomic characteristics of the Nova bus workstation. In good faith, the Company ensured only New Flyer buses were dispatched to your runs since that date. The Risk Factor Analysis has now been completed. It specifically evaluated the potential for neck injury for a bus operator while driving the Nova bus. The findings in the report are as follows: the degree of neck rotation [for a bus operator], combined with trunk rotation and lateral vision, is well within normal limits; the task of right neck rotation is performed on an occasional basis and without external force; and it is unlikely that turning the operator s head to the right to greet passengers will result in injury. In light of the above findings, on June 5, 2008, [the Registrant], Occupational Health Nurse at CMBC, sent a letter to your physician requesting an assessment of your exact limitations when operating a Nova bus. [The Registrant] did not receive a response from your doctor. Instead, she received a letter from you dated June 27, 2008 advising that you would not permit your doctor to answer our questions. It is imperative that you understand the importance of your doctor s responses to our questions. Our questions are aimed at understanding any limitations you may have that would preclude you from operating the Nova bus. These questions are necessary to determine if a continuation of your request to not drive Nova buses is still required. Therefore, we are prepared to allow you one final opportunity to have your doctor respond to our questions. We expect to receive these answers by no later than September 9, Please be advised that should we not receive your doctor s responses by the abovenoted date, the temporary accommodation of your request to not drive Nova buses will come to an end. If you have any questions, please don t hesitate to contact me at [telephone number]. [50] On September 8, 2008, the Complainant wrote to Mr. E and enclosed a letter dated September 4, 2008 written by Dr. A to the Registrant which stated: This letter is to confirm that [the Complainant] is currently a patient under my care. In the best interest of my patient I have been on a Nova bus to observe the physical demands of the job. It is my observation that he is not physically able to operate a Nova

15 DECISION NO HPA-0027(d) Page 15 bus. He is not able to perform the rotation, flexion and extension of the neck required during the working shift. [51] The Complainant s September 8, 2008 letter contained a response to Mr. E s September 2, 2008 letter which including the following statements: The letter also states that on June 5, 2008 [the Registrant], Occupational Health Nurse at CMBC, sent a letter to my physician requesting an assessment of my exact limitations when operating a Nova bus. This statement is false. What [the Registrant] sent to my physician was, in part, a misrepresentation of facts designed to portray me in a bad light to my physician and misrepresent the reality of how the forty-foot New Flyer buses are distributed to the various runs at our garage and an attempt to shift the burden of accommodation from the company on to me. The letter fails to mention that my physician had already answered almost two pages of questions from [the Registrant] in February 2008, as well as a letter from my physician dated February 7 th, 2008 handed in February 8 th, 2008, and [Dr. D s] report, dated April 25 th, Both physicians took care of me during the nine months that I was off. So you see you have all the medical information that you require to know and understand my limitations and that I cannot drive the Nova buses. My disability, as you must know by now, is permanent with which I will live with for the rest of my life, as I have been doing. I take care of it to the best of my ability with the hope that I will live out my life avoiding the surgeon s scalpel. I have had virtually no reoccurrences until I drove the Nova bus, which is the same design configuration as the Orion bus that the company rejected approximately twelve years ago due to problems in the neck and shoulders caused by those buses to many drivers. In addition, this letter is an attempt to intimidate me by threatening to take away the New Flyer buses and put me in harms way by replacing them with the Nova bus, even though you have all of my medical information and the fact that my physicians to not want me to drive the Nova bus for fear of causing a relapse of my disability. Again, I will say it is my right under the law to withhold permission from contacting my physicians. I feel I am justified under the circumstances. [52] By way of a letter to the College dated September 17, 2008, the Complainant complained that CMBC, OHD and the Registrant, had violated their office, abused their authority and overstepped their boundaries. The specific complaints made against the Registrant were that: (a) the Registrant wrote to his physician and stated that the Complainant had asked her to contact the physician when the Complainant had never asked her to do so; (b) in subsequent correspondence with the Complainant s physician, the Registrant misrepresented facts in a manner which were designed to portray him in a bad light to his doctor; and, (c) in her correspondence with the Complainant s physician, the Registrant asked questions which the Complainant considered to be loaded in an attempt to shift the burden of accommodation from CMBC to the Complainant. [53] The complaint was received by the College on September 18, On October 6, 2008, an investigator for the Inquiry Committee spoke with the Complainant to clarify

16 DECISION NO HPA-0027(d) Page 16 the nature of his complaint and obtain additional information. On October 9, 2008, the investigator spoke to the Registrant by telephone and reviewed the Complainant s September 17, 2008 letter with her and obtained the Registrant s response to the complaint. During that conversation, the Registrant stated she relied on the Ergonomic Report which concluded that the rotation of the neck of a driver of a Nova bus was within the normal limits expected and she thought it was unlikely the rotation of the Complainant s neck when driving a Nova bus would increase his pain. The Registrant also told the investigator she had never spoken with the Complainant. [54] The Registrant wrote a letter to the College dated October 24, 2008, in which she provided a summary of her compliance with the College s Standards of Practice in response to the complaint made by the Complainant and in which she described the nature of her duties at the OHD. She also sent the College a two page job description of her position with CMBC and three pages of the job criteria for her position as an occupational health nurse prepared by CMBC. In her letter, the Registrant described her role as an occupational health nurse in the OHD as follows: The OHN role includes assisting employees who are requesting temporary or permanent accommodation for disabilities, and reviewing employees fitness to return to work after illness or injury. In addition, we confirm employees meet safety standards for Preplacement Health Assessments, and when returning to work from illness or injury, OHNs also coordinate and consult on Employee Health programs, and orientate new Transit Operators to the OHN role and programs. The job description is attached. [55] The Inquiry Committee met on November 6, 2008, and considered the Complainant s complaint and the material he submitted with it, the response to the complaint by the Registrant and a report by the investigator. They concluded there was no evidence that the Registrant breached the professional standards for registered nursing practice and decided that no further action would be taken. The Complainant was advised of this decision by way of a letter from the College dated November 12, 2008 in which he was informed he had a the right to request the Board of the College to review the decision made by the Inquiry Committee. [56] The Complainant wrote to the College on November 19, 2008 appealing the decision of the Inquiry Committee on the basis that: (a) a misrepresentative of facts is a breach of a code of ethics; (b) he never received the Registrant s response to his complaint which was reviewed by the Inquiry Committee and therefore had no chance to respond to it; (c) the Inquiry Committee did not appear to address the specific complaints made by him against the Registrant; and, (d) the investigation by the College did not include the entire OHD or the evidence he provided which he believed showed that the conduct of the Registrant complained of was not an isolated incident and that there was a

17 DECISION NO HPA-0027(d) Page 17 past history of abuse and authority by the OHC but, instead, the Inquiry Committee focused only on his complaints against the Registrant. [57] On December 5, 2008, the Board of the College met and considered the Complainant s request for a review of the November 6, 2008 decision by the Inquiry Committee and directed the Inquiry Committee to review the decision. [58] On December 18, 2008, the Inquiry Committee reviewed the decision made on November 6, 2008 and the information which had been considered by the Inquiry Committee before making that decision. The Inquiry Committee then decided that further action by the College was required to initiate an investigation under section 33 of the Act. [59] As part of the investigation the Inquiry Committee, the following documents were obtained and reviewed, all of which were considered by the Inquiry Committee before it made a disposition of the Complainant s complaint on June 25, 2009: (a) an undated, unsigned letter addressed to the Nursing Concerns Coordinator of the College setting out complaints against the OHD and certain occupational nurses employed in the OHD authored by Mr. B which was prepared in May, 2005 but never sent to the College until the Complainant sent it with his letter dated September 17, 2008; (b) a CMBC performance management report consisting of an annual review of the Registrant s performance for the period January 1, 2007 to December 31, 2007 prepared by the Registrant s manager; (c) a letter from Dr. A to the OHD dated February 7, 2008; (d) the Registrant s Notes; (e) the Ergonomic Report; (f) the release of information authorization form signed by the Complainant dated February 15, 2008 (g) a letter to Dr. A from the Registrant dated February 19, 2008 with Dr. A s handwritten responses endorsed on it; (h) a paper copy of an sent by the Registrant to Mr. C on April 3, 2008; (i) a confirmation slip of the Complainant s work on CMBC s bus route 135 dated effective April 21, 2008; (j) a medical report from Dr. D dated April 25, 2008; (k) a letter to the Complainant from the WCB dated May 22, 2008; (l) a letter to Dr. A from the Registrant dated May 27, 2008; (m)a letter to Dr. A from the Registrant dated June 5, 2008; (n) a letter to the Registrant from the Complainant dated June 27, 2008; (o) a letter to the Registrant from Dr. A dated July 2, 2008;

18 DECISION NO HPA-0027(d) Page 18 (p) a letter to the Complainant from Mr. E dated September 2, 2008; (q) a letter to the Registrant from Dr. A dated September 4, 2008; (r) a letter to Mr. E from the Complainant dated September 8, 2008; (s) a letter to the Complainant from Mr. E dated September 10, 2008; (t) a paper copy of an sent by the Registrant to Mr. C and another individual at CMBC on September 10, 2008 stating that she had not received a copy of the report by Dr. D; (u) a letter to the Registrant from the Complainant dated September 17, 2008; (v) a letter from the Registrant to the College dated October 24, 2008; (w) a letter to the Complainant from the manager, service delivery, Burnaby Transit Centre of CMBC ( Mr. F ) dated December 29, 2008; (x) a CMBC performance management report consisting of an annual review of the Registrant s performance for the period January 1, 2008 to December 31, 2008 prepared by the Registrant s manager; (y) a letter to the Complainant from Mr. F dated January 8, 2009; (z) a letter from counsel for the Registrant to the College dated April 3, 2009; (aa) a letter to the Complainant from Mr. F dated May 14, 2009; (bb) a letter of reference for the Registrant from the Director, Human Resource Services of CMBC dated May 28, 2009 (cc) a letter from counsel for the Registrant to the College dated June 1, 2009; (dd) CMBC s Policy Statement regarding the accommodation of employees with a permanent disability; (ee) a set of undated blank CMBC forms and templates for communications with physicians; and, (ff) the Canadian Occupational Health Nurses Association Nursing Practice Standards. [60] An investigator for the College, as part of the investigation, compiled a chronology which was set out in an investigation report. This report was considered by the Inquiry Committee before it made its June 25, 2009 disposition of the complaint. The investigation report summarized the relevant information contained in several of the documents described above in paragraph 47. It also contained the following description of a meeting on May 22, 2009 by the Registrant, her legal counsel and the College s professional conduct review consultant as part of a voluntary dispute resolution process: The registrant who was accompanied by legal counsel met with the CRNBC professional conduct review consultant. She reviewed her role with respect to assisting employees who require accommodation in their work as a result of medical condition. She reported that her role is to communicate with the clients physician regarding clients medical limitations and to maintain confidential medical records separate from employee records.