Injured employee’s reckless behaviour outside of work was reckless, not dishonest: Arbitrator
An injured Ontario worker who was dismissed for dishonesty after being observed performing activities beyond his stated medical restrictions outside of work has been reinstated.
The worker, 39, was a shipper/loader for Energex Tube, a manufacturer of steel tubes and pipes for oil and gas pipelines in Welland, Ont. He began his employment with Energex in 2001 and in 2006 he began experiencing problems with his lower back. Over the next few years, the worker filed five claims with Ontario’s Workplace Safety and Insurance Board (WSIB) relating to back injuries he sustained at work that kept him from working for a period of time.
On Feb. 13, 2013, the worker hurt his back while moving a piece of lumber at work. He left a voice message informing his supervisor about it, though he didn’t complete an accident report, which he had done for his previous injuries and was required practice.
The worker was told to stay off work for one week and a medical note saying as much was sent to Energex. More doctor visits followed over the next few weeks and the worker wasn’t ready to come back. Eventually, he was able to return to work one month after the injury with modified duties.
When the worker returned, his doctor completed a functional abilities form (FAF) which restricted him to walking no more than 100 metres at a time, standing for no more than 15 to 30 minutes, sitting for no more than 15 minutes, no lifting, no ladder climbing, no bending or twisting and no pushing or pulling. These restrictions were initially intended to apply for two weeks. As for whether he could push these limitations if he began feeling better, the doctor advised him to “let pain be his guide.”
When the worker met with his supervisors to discuss his return to work, he said he would do whatever work they wanted him to do as long as it complied with the restrictions listed by his doctor on the FAF. He was assigned miscellaneous tasks taken from various other employees’ work pulled together into one job.
In late March, the doctor completed a new FAF, which confirmed the same restrictions should apply for another two weeks. Another FAF in mid-April maintained the status quo. Around the same time, the worker spoke with a low back expert physician referred to him by the WSIB, who determined he didn’t need surgery.
The low back expert told the WSIB the worker no longer had any restrictions for climbing stairs, but the worker’s doctor disagreed. The worker continued to work under the medical restrictions established by his doctor, though over time he increased his duties to exceed some of the restrictions, following his doctor’s advice to let pain determine how much he could do.
Company began surveillance of employee
Energex became suspicious of the extent of the worker’s injury while he was off work and hired a private investigator to conduct surveillance on him, starting in late February and continuing when he returned to work in mid-March. The investigator’s first few reports indicated nothing out of the ordinary, as the worker was seen doing little physical activity other than grocery shopping. At one point, he was observed walking with a limp.
The surveillance continued through April, when the worker went on vacation to Montreal at the end of April to watch some NHL hockey — a trip he told some people at work about.
On the first few days of his vacation before he left for Montreal, the worker was observed mowing his lawn and moving patio furniture into a truck. He was also seen walking to a park and picking up his infant daughter. When his trip began, the investigator observed him loading his car with luggage.
The investigator followed the worker to Montreal, noting that he drove the entire six-plus hour trip with only two short stops. He walked around downtown Montreal and at the hockey game rode a mechanical bull, danced on a stage, walked up and down stairs repeatedly and climbed a statue about four feet high. He then jumped down, climbed another raised section and laid down sideways to pose for a photograph. At the end of his stay, he drove back home — a seven-hour trip — with only one short stop.
The worker was called into a meeting with his supervisors on May 8, where he informed them he felt his condition was improving, though his functional abilities had not yet significantly improved. He said he had “good days and bad days,” but overall his treatment was working. The supervisors felt he could manage some stair climbing, but he said he couldn’t yet handle any stairs. He also felt that until his doctor changed his restrictions, he should continue to follow them and offered to see his doctor before his next scheduled appointment so a new FAF could be prepared.
Following the meeting, the supervisors considered how the worker presented his limitations with what the surveillance reports had shown while he was on vacation. They determined the worker was being dishonest about his condition and was misrepresenting his disability. The company decided to terminate his employment.
On May 13, the worker was informed of his termination and shown video clips the investigator had taken of him in Montreal. He said it was “no big deal” and explained his behavior at the hockey game was the result of “stupid decisions” made while intoxicated, and his physical restrictions were for activities in the workplace that he couldn’t do for eight hours every day. That didn’t mean he couldn’t do certain things occasionally on a “good day,” he said. The worker told them he would be filing a harassment complaint.
Different views of medical restrictions
The arbitrator found Energex considered the restrictions described by the doctor on the FAF were the worker's “overall abilities and restrictions” anywhere, not just at work. Therefore, as far as the company was concerned, when the worker was observed exceeding those restrictions on his vacation, it was evident he was capable of “going well beyond them without any apparent difficulty or pain,” said the arbitrator.
However, for the worker, the restrictions applied to his activities over an eight-hour workday, five days a week, where he would be doing activities repeatedly.
“(The restrictions) defined not so much what he was able to do, but rather what he should be expected to do on a continual basis, day in and day out,” said the arbitrator. “Since the intensity of his pain varied from day to day, occasionally exceeding the restrictions did not signify any dishonesty on his part.”
The arbitrator noted the worker consistently referred to the restrictions in the FAF as indicating what work he should be expected to perform and he would follow them at the meetings. However, Energex was focused on whether he was capable of exceeding his restrictions rather than if it was advisable for him to do so, said the arbitrator.
At the May 8 meeting, Energex should have confronted the worker with his observed activities on his vacation and given him an opportunity to explain himself. This might have made it clear the two sides had different views of the restrictions identified by the worker’s doctor, said the arbitrator.
The arbitrator found the evidence showed the worker was working in good faith and wasn’t attempting to be dishonest with Energex. He pointed out the worker exceeded his restrictions occasionally when he felt he was able to do so, he didn’t attempt to hide the fact he was going to Montreal to watch hockey, he offered to obtain a new FAF early and the surveillance before the trip showed nothing to indicate he was exaggerating his condition.
The arbitrator determined the worker was not being dishonest about his back injury and his dismissal was unwarranted. However, he also found the worker’s behaviour in Montreal was “reckless” and would not have been cleared by his doctor. The worker’s vacation activities breached his duty to the employer to ensure he could recover and return to regular work duties as soon as possible, since he risked re-injury.
Energex was ordered to reinstate the worker with compensation for lost wages and benefits, but a four-week suspension without pay was substituted as discipline for his reckless behaviour.
For more information see:
• Energex Tube and Unifor, Local 523, Re, 2013 CarswellOnt 18465 (Ont. Arb.).
