Employer who fired employee suspected of scamming the system found guilty of discrimination based on disability
Suspicions all around
What’s an employer to do if it suspects an employee is exaggerating injuries to get benefits? And when should it accept that the employee might not be playing it up?
A British Columbia company was suspicious of an employee’s motives when he went on workers’ compensation for an injury and then got in a car accident and went on medical employment insurance (EI) benefits instead of a return to work program. The suspicions arose out of the employee’s request to be laid off and go on EI rather than workers’ compensation so he could move.
The employer’s reluctance to accept the seriousness of the injury led to a lack of trust between it and the employee and ultimately things deteriorated into a human rights complaint.
A British Columbia employer who terminated an employee because it thought he was abusing the employment insurance (EI) system discriminated against him because of his disability and must pay the former employee $10,000, the British Columbia Human Rights Tribunal has ruled.
Gregory Barton worked as a drywaller for Garrison Refurbished Housing, a home renovation company based in Chilliwack, B.C. Barton worked as a casual employee who filled in when Garrison’s regular drywaller had a workload that was too heavy. He was hired in August 2007.
On Jan. 12, 2008, Barton was coating drywall joints in the stairwell of a house when he slipped and fell down the stairs. He landed on his buttocks and slipped down eight to 10 stairs. Afterwards, his back and left hip were sore so he went home.
Employee wanted to collect EI rather than workers’ compensation
Barton didn’t initially report the accident, but told Tony Gore, Garrison’s co-owner, about it a couple of days later. At the same time, Barton mentioned Garrison could lay him off instead of filing an accident claim with WorkSafe BC, so he could move to Vernon, B.C., where his daughter lived, and collect employment insurance (EI) benefits while he looked for a job there. Gore told him Garrison could not provide a false record of employment (ROE), so Barton agreed to seek medical attention and file a WorkSafe claim. Gore also heard from another employee that Barton intended to take advantage of the injury to “screw” Garrison’s owners.
Barton was examined by Garrison’s first aid attendant, who found Barton was vague about what happened in the accident. However, he found the reported injuries were consistent with a range of motion test he conducted. Barton brought up the prospect of a layoff again but the attendant reiterated Garrison would not file a false EI claim. The attendant discussed Barton’s desire to move to Vernon and receive EI and felt it was a “scam.”
Barton tried some light duties such as stripping paint but found the pain was too much and said he would wait until he saw a doctor before trying anything else. On Jan. 15, he was diagnosed with a lumbar strain and was not medically able to work full-time. The doctor also determined it could be up to a week before he could return to work in any capacity. Barton also saw a chiropractor who felt Barton would need to be off for two to three weeks. On Jan. 16, Garrison filed an injury report to WorkSafe BC after Barton provided a doctor’s note.
Garrison’s first aid attendant followed up the report by contacting WorkSafe BC with his concerns that Barton might be scamming the system. He informed the organization about Barton’s desire to move to Vernon and his refusal to do light duties. Afterwards, the attendant contacted Barton for the name of his doctor and chiropractor but Barton refused, saying he didn’t trust the company. However, WorkSafe BC recommended he supply Garrison with the requested medical information for development of a return to work program, so he did.
Following the accident report, Barton filed a claim for wage loss due to injury with WorkSafe BC and Garrison provided a list of light duties it had available that it felt Barton could do. The company also provided a list of the physical demands of Barton’s job, but didn’t give either list to Barton.
WorkSafe BC approved Barton’s claim on Jan. 22. The organization acknowledged Garrison’s concerns but it determined Barton’s injury arose out of and in the course of his work duties. There was also no written evidence of Barton’s wish to be laid off and move to Vernon.
WorkSafe BC then developed a return to work program that would have Barton begin work on a short shift with modified duties on Jan. 24, gradually working up to full duties by Feb. 16. Barton was concerned he wasn’t medically fit to return so soon and became angry when it was proposed. However, he complied with the program and worked short shifts for three days.
Car accident aggravated old injuries and caused new ones
After three days on his return to work program, Barton was in a car accident on Jan. 29 in which he was rear-ended. His workplace injuries were aggravated and he also had pain in his neck, mid-back and shoulder. Barton informed Garrison that he had been injured and was unable to come to work.
Garrison’s co-owner Gore believed Barton was going to take advantage of the car accident and that Barton didn’t want to come back to work. He thought Barton’s injuries weren’t very serious and Barton was going to follow through with his plan to move. Gore felt Barton “essentially quit” and was relieved he didn’t have to deal with Barton anymore.
When Barton informed WorkSafe BC about his car accident, it suspended his claim and Barton requested an ROE from Garrison so he could make a claim for medical EI benefits. Garrison supplied an ROE stating the reason for issuance was “illness or injury” and Barton’s expected date of return was unknown. There was no further contact between Barton and Garrison for some time.
Barton applied for EI benefits with a stated return to work date of March 13, 2008. He was approved for benefits to March 15 and was extended to April 26 when his physiotherapy continued. Originally, his kinesiologist and doctor both agreed he could start a return to work program by mid-March, but Barton felt he wouldn’t be well enough. Though he continued to receive treatment into May, his benefits ended because he had not worked enough qualifying hours.
In mid-March, a therapist called Garrison to discuss Barton’s return to work but was told Barton had been replaced. Barton followed up and Gore told him he no longer had a job and business had slowed down enough that the regular drywaller could handle things. Gore testified he was shocked to hear from Barton for the first time since the car accident and thought Barton had moved. Barton reacted angrily and said “it isn’t over.”
When Barton completed his therapy in late May, he informed WorkSafe BC he wanted to complete his return to work program but he no longer had a job to return to. Garrison told WorkSafe BC it had replaced Barton when Barton disappeared after his accident. Gore also felt Garrison employees would be uncomfortable if Barton came back working light duties, knowing he was trying to take advantage of the system.
Barton filed a human right complaint alleging his termination amounted to discrimination in employment on the basis of his physical disability.
No evidence to show employee was faking it: Tribunal
Garrison claimed there was no definite evidence of Barton’s injuries and the medical opinions were based on what Barton told the experts, the tribunal found the experts were entitled to make judgments based on information from the patient and their perceptions.
The tribunal also noted both WorkSafe BC and Human Resources Development Canada accepted his wage loss and medical EI claims, respectively. Garrison also failed to take any steps to obtain any additional medical information to support its belief Barton’s injuries weren’t legitimate, said the tribunal.
The tribunal found Barton didn’t give Garrison any indication he was actually quitting and moving away. A lack of communication after his car accident until mid-March was not the same as Barton stating that he resigned his position and Garrison should have confirmed his status before replacing him, said the tribunal. During the one-and-a-half months between communications, Barton was on EI sick benefits.
The tribunal ruled Barton was legitimately disabled from the time of his workplace injury and Garrison’s refusal to allow him to return to work terminated his employment. It also found his disability-related absence was a factor in the termination and, as a result, Garrison discriminated against Barton.
Garrison was ordered to pay Barton $7,500 for injury to his dignity, feelings and self-respect caused by the discrimination and $2,431 for his expenses and lost wages incurred to attend the hearing.
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