The grievor passed off a torn tendon from an earlier event as a work-related injury and received workers’ comp benefits. Because his dishonesty was deliberate and carried on over a long period of time, the arbitrator found that termination was appropriate.
A casino worker was fired after it was revealed that his compensation claim for a work-related injury was based on false information.
Employed part-time as a card dealer at a casino since 2002, L.C. filed a claim for workers’ compensation on Mar. 24, 2006.
L.C. first filled out the employer’s medical report form. There he reported that he had been suffering from a work-related injury for about one year. L.C. said the repetitive motions involved in dealing cards had caused injury to his right thumb. He reported that he was scheduled to have surgery, too.
L.C. repeated the essentials of the claim on the compensation board’s Form 7. He also responded to questions on the board’s Form 6 about the nature of his injury by denying any previous injuries to his right thumb.
L.C. received about $66,000 in compensation benefits over the course of his claim.
Surgery revealed that L.C. had a ruptured tendon in his thumb. As he was unable to resume dealing cards at the casino, the employer attempted to accommodate him in a number of different positions. However, after L.C. complained about a proposed accommodation as a bus boy, the board, which harboured doubts about the work-relatedness of the injury, scrutinized his claim again.
Injured during an arrest
This time the board uncovered an arrest report from June 16, 2005. The report noted that L.C. had sustained a number of injuries during the arrest, including an injury to his right thumb.
Following the incident, L.C. was treated at the emergency department of the local hospital. He reported a number of injuries, including to his right thumb and wrist, both of which were x-rayed. The x-ray evidence was not determinative, however, because x-rays do not identify soft tissue injuries.
About 10 days after the incident, L.C. saw his general practitioner about his thumb. He explained the circumstances about how he had become injured. He saw his doctor about six times over the next eight months about pain in his thumb. L.C. was referred to an orthopedic specialist who referred L.C. to yet another specialist.
In his consultations with the second specialist, L.C. did not explain the circumstances about how he was injured.
Neither did he reveal the name of his general practitioner.
In light of the new information, the compensation board determined that the injury was not work related and that the claim was fraudulent. L.C.’s benefits were cut off.
When the employer became aware of the compensation board’s findings, L.C. was fired. The letter of termination said that L.C. was being terminated for cause for knowingly making false statements.
The union grieved, arguing the employer had not met the onus on it to establish fraud as the board had alleged. The union also questioned the medical evidence.
Deliberately misleading
The employer said that L.C. had been deliberately misleading. Statements on the forms he filled out attesting that he had no previous injuries to his thumb were a “blatant lie.” He deliberately hid the circumstances of his arrest from the specialist in order to bolster his claim about the work-relatedness of his injury. Honesty and integrity are core values for employees in a casino, the employer said. L.C.’s continued employment therefore was untenable.
Termination was warranted, the Arbitrator said.
L.C. had a clear obligation to disclose his prior injury to his thumb when he filed his claim for compensation benefits. He failed to do so.
“Any assertion by [L.C.] that he did not deliberately conceal this information is simply not credible. The grievor would have been aware that if [the specialist] would have been aware of the name of the family doctor … [the specialist] might have reviewed her records and would then have learned of the June 16 incident. His claim would then have been called into question. Instead the grievor concealed this information from [the specialist]. He also failed to mention on his Form 6 that he had injured his right thumb previously on June 16 … Clearly the grievor failed to provide the required information in support of his claim and I have concluded based on all the evidence that the failure to provide that information was deliberate and was for the purpose of ensuring that there was no impediment to his claim for benefits.”
Not all incidents of dishonesty warrant termination, the Arbitrator said. However, where the employee’s dishonesty has been planned and deliberate and perpetrated over a long period of time, discharge is the appropriate response.
L.C.’s grievance was dismissed.
Reference: National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW-Canada), Local 397 and OLG Casino Brantford. Norm Jesin — Sole Arbitrator. Jim Woods for the Union. Elizabeth Kosmidis for the Employer. June 2, 2011. 15 pp.
