Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2016 dismiss employees who tested positive. In December 2014 and Janu- ary 2015, Entrec experienced more incidents than ever before. As a result, it called an emer- gency safety meeting with all em- ployees, including Mielke, where it told the employees all incidents would be subject to drug and al- cohol testing. Mielke was called out for rolling his eyes and not taking the meeting seriously, but he signed off on the meeting with the other employees. On Jan. 27, 2015, Mielke was loading a large rock truck for de- livery to a customer and drove it up the tramp of the trailer. When the truck was part of the way onto the trailer, part of it slid off. There was minor damage to the truck's wheel rim, but no-one was injured. The customer later called Entrec to complain about the damage. After the dispatcher spoke to the customer, he called Mielke to find out what had happened. Mielke said the rock truck had spun out to the side of the trailer and, when the dispatcher said he should have used ramps or gravel, Mielke said "There are no ramps in the bush." It was raining and snowing that day and Mielke had asked dispatch to call off the job. How- ever, dispatch told him he should go ahead. Mielke had refused to perform work he considered unsafe in the past and was aware of his rights to do so, but he pro- ceeded. The executive vice-president of operations learned of the inci- dent and felt Mielke should have used a different ramp for slippery conditions or use sand on the trailer. After the vice-president conferred with the branch man- ager and safety manager, it was decided Mielke should undergo post-incident drug and alcohol testing. Two of Mielke's co-work- er's had recently undergone suc- cessful rehabilitation programs and were back at work, so they felt there was no reason Mielke shouldn't be tested. Worker refused to take test Mielke didn't want to take a test, as it would mean he would be subject to random testing for a year under the policy. He went out to lunch with his wife, who convinced him not to lose his job, and returned to say he would agree to be tested. However, the branch manager told him it was too late and "too bad to throw in the towel, you are a good hand." He told Mielke to go home and come back the next day. The next day Mielke's employ- ment was terminated, which the branch manager was reluctant to do because Mielke was consid- ered a "key hand," but he felt he had to follow the policy. The adjudicator found Mielke was aware of Entrec's policies through meetings and newslet- ters and signed off on them, so when he refused to take a drug and alcohol test he knew what the consequences would be. He was also aware he could refused to do the job if he felt the weath- er conditions made things too dangerous, but he didn't. Either way, there was an incident that required a drug and alcohol test under Entrec's policy. "Regardless of the nature of the incident with the rock truck on Jan. 27, 2015, it was an inci- dent nonetheless," said the ad- judicator. "(Management) all agreed that Dallas Mielke should be tested. This in my view was a reasonable and prudent decision to make, especially in light of the rising number of incidents En- trec was having, and in view of what was said at the stand down meeting." The adjudicator also found that it didn't matter that Mielke was persuaded by his wife to change his mind and was later willing to be tested. He refused to be tested at the start and Entrec relied on that refusal under the policy to terminate his employ- ment, said the adjudicator. Mielke gave no reasons for refusing the test and there was nothing to justify the refusal as his job would not be in jeopardy if he complied, said the adjudicator in upholding the dismissal. For more information see: • Mielke and Entrec Corp., Re, 2015 CarswellNat 6411 (Can. La- bour Code Adj.). had to be a "clinical compatibility between the original injury and the current condition as well as continuity between the original condition and the most recent problems. The worker disagreed with the WSIB's finding and appealed to the Ontario Workplace Safety and Insurance Appeals tribunal. He was examined by an ortho- paedic surgeon on May 27, 2013, which stated he had suffered symptoms since his accident in 2005 which were resolved by his surgery. The surgeon also stated that while the worker had been told the surgery was from "age- related degenerative changes," it was his opinion that the symp- toms were the result of the lifting incident at work, without which the symptoms might not have manifested. The tribunal found there was no new accident of significance, so the issue was whether the new injury was a recurrence or had continuity with the original com- pensable injury. Symptoms showed continuity from original injury Looking at the medical reports, the tribunal found the worker saw his doctor frequently from 2005 through 2007 regarding com- plaints of neck pain, and the x-ray and MRI were also done during this period. This was evidence of continuity from the original in- jury, as there were no mentions of a neck injury in medical records before 2005 going back to 1997, said the tribunal. The tribunal also noted the part of the spine scanned in the 2006 MRI was the same part which was operated on in 2012. The tribunal found both the specialist the worker saw regu- larly and the orthopaedic sur- geon agreed that the worker's neck surgery was the result of a flare up of his initial problem, not a degenerative condition. The only dissenting medical opinion was the WSIB's medical consul- tant, who didn't treat the worker over a period of time and wasn't a specialist. The tribunal overturned the WSIB's decision, finding the worker "suffered a recurrence of his compensable injury lead- ing to surgery." As a result, the worker was entitled to health care benefits related to his neck surgery and loss-of-earnings benefits covering the period until his return to work following his recovery. For more information see: • Ontario Workplace Safety and Insurance Appeals Tribunal Deci- sion No. 2044/15, 2015 Carswel- lOnt 19664 (Ont. W.S.I.A.T.). Policy required test following an incident WSIB consultant only one who said no recurrence News | February 2016 | CSR Drug test refusal < pg. 3 Benefits < pg. 6 e worker didn't want to take the test, as it would mean he would be subject to random testing for a year under the policy. His wife convinced him to change his mind, but the branch manager told him it was too late.

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