Court overturns $86K in damages awarded to Environment Department clerk
Nova Scotia's highest court has overturned a decision by a provincial human rights board that awarded damages to a woman who couldn't do her job at the provincial Department of the Environment.
The last time Sandra Wakeham worked as a clerk for the department was on March 9, 2012. She left her job, never to return. She claimed the department failed to accommodate her physical disabilities. A human rights board of inquiry agreed and awarded her $51,000 for loss of past income and $35,000 in general damages.
But in a ruling released Wednesday, the Nova Scotia Court of Appeal said the board of inquiry got it wrong when it found that Wakeham's inability to work was linked to the department's failure to accommodate her.
According to evidence at both the inquiry hearing and the appeal hearing, Wakeham's problems began with two car accidents; one in 1999 and the other in 2005. She missed three years of work following the first accident. By 2006, she had pain issues and was consulting about 10 medical specialists.
Beginning in 2009, Wakeham experienced lengthy absences from her job. According to figures supplied to the court by the Environment Department, Wakeham worked 90 per cent of the time in 2008. By 2010, that had slipped to less than 44 per cent. And for the period from April 2011 to February 2012, she was at work only about 10 per cent of the time.
Accommodations
Wakeham's family physician filled out forms listing limitations that should be in place for her patient's return to work. She noted Wakeham had reduced ability when it came to sitting, standing, walking, bending/twisting, lifting, carrying, reaching, pushing or pulling.
In order to accommodate Wakeham, the department agreed to place her in a job with the following restrictions:
No responding to customers at the front desk.
Exclusion of telephone duties.
Work in a quiet location.
Sitting for no more than two hours without a break.
No standing for more than 30 minutes without a break.
No walking more than one hour without a break.
Maximum lifting of five pounds.
Wareham told the department that she developed anxiety because the new restrictions meant she would have to learn new job skills. At any rate, she didn't last long before she was off the job again.
In appealing the human rights board's decision, the department argued that it was contradictory for the board to find Wakeham was fit to work one day and then unfit a couple of weeks later when she complained about the way the department was treating her.
Medical experts
The court found the board put too much emphasis on findings made by Wakeham's family physician, even though those findings had no foundation in fact.
The court said the board failed to consider evidence from medical experts hired by the department to review this case, including forensic psychiatrist Scott Theriault and occupational health physician Kevin Bourke.
In his review of the case, Theriault found that "with respect to her cognitive issues I do not see anything that could successfully allow Ms. Wakeham to perform the basic functions of her job, even with accommodation."
Bourke was equally pessimistic.
"The likelihood of this employee's successful return to even part-time in her previous role(s) is exceedingly small in my opinion," he wrote. "I have no recommendations in this regard."
The court found the human rights board also failed to weigh whether Wakeham was trying to return to work for financial reasons, because her long absences had exhausted much of her disability payments.
The court was also critical of Wakeham and the board for the long, drawn-out hearing process in this case.
"Careful expenditure of scarce public resources would suggest a better solution than the process pursued in this case," Justice Peter Bryson wrote for the three-member appeal panel.
