Employer believed videos of worker dancing weren’t compatible with physical restrictions
A Manitoba worker who was filmed dancing while still reporting pain and difficulty returning to work after an injury was not being dishonest and should get her job back, an arbitrator has ruled.
Roshni Tailor worked as a sonographer at the Winnipeg Health Sciences Centre (HSC) since 2010, performing ultrasound scans. Over the years, she suffered from repetitive strain injuries to her wrists and elbow. After a period of recovery, she was able to return to work after each injury.
On Jan. 14, 2017, Tailor was performing a cultural dance routine while off duty when she fell and broke her wrist. She was unable to work and received short-term disability benefits until the end of March. In April 10, Tailor was scheduled to return to work on a graduated basis with several restrictions including no “pushing, pulling, gripping (or grasping) with right upper extremities.”
However, Tailor wasn’t able to perform her duties and her restrictions were updated to state she was “unable to do duties as an ultrasound sonographer, may return to sedentary work.” Unable to accommodate the restrictions, HSC moved her to long-term disability benefits.
Tailor began a reconditioning program in September 2017, but had to stop when she experienced neck and back pain. HSC commissioned an independent medical examination (IME), which said Tailor should participate in a lighter reconditioning program.
By this time, Tailor had resumed various cultural activities including cultural dancing, which the health-care professionals in her program didn’t seem worried about.
Tailor returned to work in February 2018, but raised concerns that her restrictions hadn’t been spelled out by the insurer. She started with two days per week part-time, and gradually increased to four days per week part-time.
On Feb. 26, Tailor told her manager she was experiencing pain in her wrist, neck and back. As a result, HSC cut back her shifts to two per week and the insurer recommended Tailor perform “shorter/easier scans” with breaks. Another graduated return-to-work plan was devised that would see her working six-hour days, four days per week and full duties by the end of May.
In mid-April, HSC became aware of videos online that depicted Tailor dancing. It believed some of the videos were recorded between February and April while she was seeking accommodated work. HSC felt this physical activity wasn’t consistent with her work restrictions and the pain from which she said she was suffering.
The insurer told Tailor on May 7 it was discontinuing her benefits because of the videos, which indicated she was not totally disabled. Tailor said she had been medically cleared to dance but HSC put her return-to-work program on hold and requested an update on her restrictions.
On May 16, HSC informed Tailor it would investigate the videos and she was to remain off work. Though Tailor wasn’t officially suspended, she wasn’t paid while off work — the insurer had been paying her wages as part of the return-to-work program.
HSC scheduled a meeting on May 30, which it called a “followup” to the May 16 meeting. However, HSC asked if there was any new information or medical support for the dancing and when Tailor didn’t provide anything, it gave her a termination letter. HSC said it would be difficult to trust Tailor going forward because of the discrepancies between the videos and Tailor’s restrictions.
Arbitrator weighs in
The arbitrator found the dancing demonstrated the actions “of a person who exhibits no visible pain or impairment” so it made sense that HSC and its insurer were concerned since Tailor was progressing slowly in her return-to-work program. And a comparison of videos before Tailor’s injury showed little change to accommodate her restrictions.
However, the actions involved in the dancing and her job were not necessarily compatible when it came to pain, said the arbitrator. Sonography involved applying sustained pressure for 30 to 45 minutes, while the dancing had quick movements with no pressure.
“I do not feel able to conclude without medical evidence that there is the required degree of inconsistency to shift the onus to her,” said the arbitrator.
Tailor was not dishonest with HSC regarding her restrictions and return-to-work efforts, said the arbitrator, and HSC was ordered to reinstate her with full back pay.
For more information, see:
• Winnipeg Regional Health Authority and MAHCP (R.T.)., Re, 2018 CarswellMan 781 (Man. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.