FAQ's Cases - Stewart McKelvey

evaluated within four weeks”. The second note was a WSIB functional abilities form,“Form 7”, that had been filled out by the applicant’s doctor recommended that theapplicant continue with full time hours but with certain limitations including avoidingshrink wrapping pallets/skids, avoiding exposure to the freezer and limiting bending,twisting or repetitive movement. The third document was a note from a physiotherapistwho had been treating the applicant for eight weeks who indicated that the applicantshould avoid any sustained or repetitive bending or heavy lifting.[16] The applicant testified that on April 22 he told Mr. Castellano that he felt theinjury was work related. Mr. Castellano testified that the applicant had told him that hehad injured his back working at home.2012 HRTO 1455 (CanLII)[17] Mr. Castellano testified that the applicant was provided with modified duties. Mr.Castellano testified that the applicant was assigned to cleaning duties that required himto drive a sit down sweeper. He was also assigned to pick special orders. Specialorders required the applicant to pick lighter items for customers who came to thewarehouse facility. Mr. Castellano testified that these were often packages of cheeseweighting less than 5kg. Mr. Castellano testified that the applicant was also loading andunloading trucks (which require no lifting). Mr. Castellano testified that he believed theapplicant went into the fridge on one occasion and that he did not have to go into thefreezer. He testified that he communicated to the applicant if there was a job he couldnot do that he shouldn’t and that he should request help. He testified that he did notrecall the applicant asking others for help and never came to him to complain about hisjob duties.[18] The applicant submits that the respondents failed in their duty to accommodatehis injury during this period. The applicant testified that while he was assigned to domodified duties he was also required to undertake tasks that exceeded his functionallimits as described in his functional abilities form. He testified that he did have to go intothe freezer. He denied that Mr. Castellano ever told him that he could decline toundertake certain tasks. The issue of whether the applicant was required to undertake6