Company developed return-to-work plan behind worker’s back despite medical assessments that worker was unfit to work
A British Columbia employer was too aggressive when it proposed a return-to-work plan for an injured employee and then fired the employee for not agreeing to it, an arbitrator for the Canadian Railway Office of Arbitration and Dispute Resolution has ruled.
Geoff Fuoco was a conductor for the Canadian Pacific Railway (CPR) in Revelstoke, B.C., with ten years of service and a clean disciplinary record.
On Feb. 17, 2014, Fuoco suffered an injury to a bicep while at work. He reported the injury to CPR but didn’t seek medical attention. However, two days later he told the company his pain was getting worse and he would be getting medical attention.
CPR provided Fuoco with a functional abilities form (FAF) for his family physician to fill out. The physician completed the form indicating Fuoco would be off work for two to four weeks. She added Fuoco was “totally unfit for work” and was prescribed Tylenol 3s for the pain.
The same day as Fuoco’s medical appointment, CPR made the employer’s report of the injury to WorkSafeBC, the province’s workers’ compensation overseer. The company disputed Fuoco’s claim for benefits, arguing that he was a bodybuilder whom it suspected was using steroids. As a result, CPR suspected an underlying cause of Fuoco’s injury that wasn’t work-related. CPR also indicated it would offer Fuoco sedentary, modified duties.
In a Feb. 21 meeting, CPR informed Fuoco that the information in its possession indicated that he could perform light duties. Fuoco replied that he would like to speak to his physician before agreeing to anything, which he did later that day. The physician once again declared him unfit for work in an FAF and pointed out the prescribed medication negatively affected Fuoco’s alertness.
Company surprised employee with return-to-work plan
CPR’s occupational health and safety nurse contacted Fuoco’s physician without Fuoco’s knowledge and presented a return-to-work plan with modified duties. The nurse indicated Fuoco had been offered the modified work the day before, but this wasn’t in fact the case. Fuoco’s physician assumed he had improved and had discussed the modified work with his employer, so she agreed to the plan without speaking to Fuoco.
The next day, CPR had a telephone conference with Fuoco to offer him the modified duties under the return-to-work plan. The duties involved an indoor, office job with eight-hour days, five days a week and the plan was set to begin the next day, Feb. 28.
Fuoco objected to the plan, telling the company he had physiotherapist appointments on three of the next four days — though one of the appointments was for a massage, not physiotherapy. Management suggested he come to work after his appointment on Feb. 28, but Fuoco said the physiotherapy was strenuous and he wouldn’t be capable of performing any work afterwards. It was then suggested he come to work on the one day he didn’t have an appointment, but Fuoco said he needed a day of rest following treatment. At one point, Fuoco suggested he come into work late that day, but CPR didn’t agree.
CPR told Fuoco it believed it had provided a suitable return-to-work plan according to his medical restrictions provided by his doctor and asked for medical evidence regarding his medication, which made him unfit to drive. It also offered to provide transportation to and from work. The company concluded by advising it would be informing WorkSafeBC he was refusing to accept reasonable work. However, Fuoco’s claim for benefits was still approved.
CPR was still suspicious about the extent of Fuoco’s injury since he had taken two days to seek medical attention. It had also heard rumours of Fuoco going to a local hockey tournament, which led it to check a minor hockey website that showed Fuoco coached a team in the tournament. Given this suspicion and Fuoco’s reluctance to participate in a return-to-work program, CPR launched video surveillance on him.
A March 3 appointment was rescheduled to March 5 — through no fault of Fuoco’s. The day of the scheduled appointment, a doctor who had taken over Fuoco’s treatment completed another FAF stating Fuoco was unfit for any work and reiterating the affects of medication on his alertness.
On March 11, the doctor completed an FAF that indicated Fuoco was fit for modified work. However, CPR informed Fuoco that it was no longer prepared to offer him modified work.
Company doubted employee’s honesty about injury
CPR felt Fuoco wasn’t being honest about his injury and his ability to perform work. He made no attempts to see how he felt after physiotherapy before refusing to work after it; he tried to negotiate a late start time on his off-day from physiotherapy, which CPR took to mean he was capable of working; he didn’t bring up the side effects of his medication until faced with a return-to-work plan; and he claimed to have physiotherapy sessions on days the clinic was closed.
On April 7, CPR terminated Fuoco’s employment for providing false and misleading reasons for his inability to participate in a return-to-work plan from Feb. 28 to March 3, while receiving workers’ compensation benefits. It also said Fuoco wasn’t entitled to receive benefits because he deliberately misled CPR about his inability to work under the plan. The company appealed WorkSafeBC’s decision to give Fuoco benefits, but WorkSafeBC determined medical evidence following Fuoco’s refusal to return to work supported a finding that the refusal was reasonable.
WorkSafeBC also expressed concerns that CPR’s return-to-work offer didn’t specify what duties Fuoco would be doing, which made it difficult to determine how reasonable or productive they were.
The arbitrator found CPR “ambushed” Fuoco when it went behind his back to consult his doctor on a return-to-work plan and then called a meeting to offer the plan to him. Fuoco didn’t have an opportunity to speak to his doctor about it and was caught off-guard, which understandably made him hesitant. In addition, there was no reason for CPR to be suspicious that the FAFs weren’t accurate or weren’t legitimate medical opinion, said the arbitrator.
The arbitrator also found that the surveillance video — which depicted Fuoco opening doors, carrying coffee, coaching and clapping at a hockey game, and eating in a mall — didn’t show anything that was inconsistent with his FAFs and refusal to return to work, particularly since he was seen to be favouring his arm throughout the footage.
“There’s a difference between attending at work full-time even on sedentary duties when prescribed pain medication and engaging in what can only be characterized as low-impact daily leisure activities, such as those revealed in the video footage,” said the arbitrator.
The arbitrator found CPR was suspicious of Fuoco’s injury from the start and this led to “some rather questionable tactics” such as accusing him of using steroids to WorkSafeBC, its aggressive pursuit of a return-to-work plan despite have two FAFs declaring Fuoco unfit for work, contacting his physician without his knowledge, and springing the return-to-work plan on Fuoco knowing he hadn’t had the chance to talk to his physician.
The arbitrator noted Fuoco bore some responsibility by throwing up “every roadblock he could conceive of to decline returning to work” at the end of February and in early March 2014. However, this didn’t excuse CPR’s “guileful manner” in dealing with Fuoco’s injury, said the arbitrator.
The arbitrator agreed with WorkSafeBC that Fuoco’s injury was legitimate and his claim was reasonable. It ordered CPR to reinstate Fuoco with compensation for lost wages and benefits and a penalty of 20 demerits for conduct unbecoming regarding the return-to-work meeting on his record.
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