Injured employee can’t work but can golf

Employee on sick leave with a bad back was seen doing activities beyond stated restrictions including playing in a golf tournament

An employee on sick leave who didn’t keep his employer updated on his ability to work deserved to be fired for dishonesty and misleading his employer, the Ontario Arbitration Board has ruled.

Jamie McLaughlin was a custodian with the City of Kingston, Ont., beginning in 2001. It was a physical job involving building maintenance, collecting garbage, vacuuming, sweeping, mopping and snow removal. However, McLaughlin was hampered at times by a back injury he sustained in 2002 and occasionally he had to go on modified duties.

In December 2007, McLaughlin told the city he had reinjured his back and provided a note from his doctor that said he should be off work for medical reasons. He provided another note in early January 2008 that said a reassessment had been conducted and he should be off work “until further notice.” The doctor indicated McLaughlin had spinal nerve entrapment and was waiting for surgery.

McLaughlin applied for workers’ compensation benefits but the Ontario Workplace Safety and Insurance Board denied the claim, saying he didn’t fully comply with the city’s return-to-work efforts and he had to provide medical documentation to support those efforts.

McLaughlin did receive short-term disability benefits under the collective agreement until April 18, 2008. He applied for long-term disability (LTD) benefits but didn’t co-operate with requests for additional medical information. As a result, LTD benefits were denied. However, McLaughlin remained off work.

McLaughlin saw an orthopedic surgeon in May 2008, who concluded he didn’t need surgery. McLaughlin didn’t advise the city of this development.

In July, the city received a complaint from someone who had seen McLaughlin playing in a charity best-ball golf tournament, a tournament his team won. It hired a private investigator to conduct video surveillance on McLaughlin for two days on July 31 and Aug. 1, 2008. The investigator filmed McLaughlin driving and cleaning his car and carrying various items such as grocery bags, garbage bags, a case of beer, large waste containers and two jugs of chlorine weighing 56 pounds each. According to the investigator, he didn’t appear to be in any discomfort and moved easily with a good range of motion.

The city showed the video to a doctor for an independent medical opinion and the doctor concluded the activity shown in the video was inconsistent with the level of McLaughlin’s claimed physical impairment.

Employee’s stated restrictions inconsistent with outside activities

McLaughlin returned to work on Aug. 11. Two days later, a city labour relations officer met with him to discuss the complaint and his abilities, which he had indicated were limited to lifting no more than five kilograms, climbing no more than five steps or sitting or standing for no more than 15 minutes at a time.

The labour relations officer felt McLaughlin was unco-operative and acted annoyed, but he admitted he had golfed at least five times in the spring of 2008 and probably could have returned to work earlier than he did.

The city determined McLaughlin hadn’t been truthful about his condition and didn’t meet his responsibility to advise his employer of when he was able to return to work, despite having the opportunity to do so in monthly communications with the city’s occupational health nurse.

On Sept. 24, 2008, the city terminated McLaughlin for being “dishonest and deceptive with the city regarding your physical condition and your ability to return to work,” including not co-operating with its return-to-work plans.

The union filed a grievance on behalf of McLaughlin, claiming the city did not have just cause to fire him as required by the collective agreement. It also claimed the city should have addressed its suspicions buy following a clause in the collective agreement that allowed the employer to request any employee on sick or disability leave to undergo a medical examination by someone designated by the employer.

The board found it wasn’t necessary for the city to request a medical examination because the collective agreement didn’t require one, it just allowed the employer to request one. The surveillance and witnesses to McLaughlin’s golfing were sufficient to use as evidence of his dishonesty, said the board.

The board found the city and the union relied on medical certificates from employees’ health care providers to maintain sick leave and disability plans as well planning a return to work and employees are obligated to provide accurate, up-to-date information. The inconsistencies between the information McLaughlin provided and the activities he was observed doing showed an abuse of the sick leave plan and he continued to be evasive when asked about it, said the board.

“(McLaughlin) claimed that he was totally disabled from performing any aspect of his job when, in fact, he was capable of performing most aspects of his job,” said the board. (He) was deceitful with the intention of abusing the sick leave benefit plan in the collective agreement, was not honest when questioned about it and showed no remorse or understanding of the seriousness of the situation.”

The board upheld the termination and dismissed the grievance. See Kingston (City) v. C.U.P.E., Local 109, 2010 CarswellOnt 8014 (Ont. Arb. Bd.).

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