Tolko planer mill in Lavington

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A BC man who accused a Vernon company of failing to accommodate him after he was diagnosed with complex sleep apnea has won the first round of a BC Human Rights Tribunal case.

Tolko Industries had applied to have the BC Human Rights case thrown out, but the Tribunal ruled the matter should go to a hearing.

According to a June 28 BC Human Rights Tribunal decision, former Lavington sawmill worker Paul Senger launched the case against Tolko Industries saying it failed or refused to return him to work after his doctor said he could go back to work with certain accommodations.

The decision said Senger began working for Tolko as a saw filer in 2013, and his job involved maintaining and repairing saws at the lumber mill.

In 2018, the company conducted an investigation into whether Senger was following appropriate safety procedures.

"Specifically, (Tolko) became concerned as to whether Mr. Senger was properly locking out relevant equipment prior to entering into a machine lockout area, and ensuring a buddy was present during the lockout process," the decision read.

Following the investigation Senger was put on paid leave and examined by an occupational therapist. He was placed on short-term disability benefits.

Shortly afterwards he was diagnosed with complex sleep apnea.

According to the Public Health Agency of Canada, sleep apnea is a serious disorder that causes your breathing to stop repeatedly while asleep. It causes daytime sleepiness, poor concentration or memory loss among other symptoms. Untreated it can lead to high blood pressure and strokes, and lead to work-related injuries.

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The decision said in late 2018, Senger's doctor cleared him to return to work gradually with no graveyard shifts.

Tolko then had him assessed again by an occupational therapist to see if he could safely perform his job as a saw filer.

The report stated he was "not suited for safety-sensitive work."

The company told Senger it didn't have any positions that met the restrictions and limitations the occupational therapist's report recommended. The company said he would have to apply for long-term disability benefits.

Six months later, Senger's doctor said he'd "made a remarkable recovery" and "could return full to gainful employment at his previous position as a saw filer."

A while later, a third occupational therapist report was done and Tolko concluded that Senger remained "incapable of consistently safely performing the duties of his role."

The company then said it had no positions available for Senger that he could safely perform within his skill range.

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In the decision, Senger argued it was "unreasonable, and discriminatory" to put such weight on the occupational therapist's reports and ignore his doctor's recommendations.

He argued Tolko failed to explore other opportunities to accommodate him.

The company refuted this saying it did a review of all available positions company-wide to see if there was anything that could accommodate Senger's but there were no available positions.

The Tribunal said that Tolko must show that it was an "undue hardship" for it to accommodate Senger.

However, the Tribunal stated while Senger wasn't entitled to a "perfect solution" Tolko hadn't shown that it had explored outside of regular vacant positions.

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The Tribunal also ruled there were lengthy gaps which are not fully explained in the case.

While Senger's minor win doesn't mean he'll succeed in the long run, the Tribunal ruled the case should go to a hearing and dismissed Tolko's application to have it thrown out.

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