Employer’s suspicions about injury unfounded

Employee should have been more proactive in providing info on injury and ability to work but didn’t lie about it: Arbitrator
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 07/31/2012

The game’s afoot

When an employee suffers an injury that prevents her from being able to work for a period of time, it’s important for the employer to be kept updated on the employee’s status. The employer needs to have an idea of how long the employee will be away, as well as any functional limitations the employee might have that the employer may have to accommodate. In addition, the employer might want to get the employee back to work sooner by re-assigning the employee some lighter duties.

However, for all of this to happen the employer needs information from the employee and her doctor. If this information isn’t forthcoming, or is slow in coming, it puts the employer in a bind. This could raise suspicions about the employee’s injury or intentions, but it could also be an issue with the employee’s doctor.If the employer acts too quickly without all the facts, it could be in trouble.

A British Columbia railway employee who was fired for not being straightforward about an injury he suffered while at work was not treated fairly, the B.C. Arbitration Board has ruled.

Dean Rasmussen was a locomotive engineer and conductor for Southern Railway of British Columbia, a freight railway based in New Westminster, B.C. On June 6, 2011, Rasmussen was working an overnight shift when he twisted his ankle stepping off a moving train. He didn’t think the injury was serious at the time and worked the remaining two hours of his shift. However, his ankle started getting worse and when he took his boots off at the end of the shift, he was in significant pain. He completed an injury report before he went home.

The next day, the railway sent a personal injury process package to Rasmussen’s home. The package included instructions and forms for the employee to determine the extent of the injury and the earliest possible return to work. There were also forms for the employee’s doctor to fill out, which included examples of light duties the railway could make available so the doctor could assess the employee’s limitations and determine what the employee could do.

The railway had created the process and its modified duties program in early 2011 to address a problem with the amount of time lost to injury, which was significantly higher than the industry average. All employees, including Rasmussen, were given classes on the program and told the importance of having a doctor fill out the forms.

Rasmussen called the railway and spoke to the director of HR, the superintendant of operations and the manager of health and safety. They offered him assistance and the HR director went over the railway’s modified duties program. He also stressed the importance of filling out the functional limitations form so the railway could implement the program. The HR director also told him to report for duties patrolling in a vehicle at a company tool shed the next morning.

Doctor prescribed a week of rest

Rasmussen’s doctor diagnosed a sprained ankle and prescribed no weight-bearing activities for one week along with rest, ice, compression and elevation of the ankle. Rasmussen mentioned the patrolling duties assigned to him but the doctor said he was to do nothing for a week. Rasmussen claimed no other light duties were discussed because the railway hadn’t offered any other options. Rasmussen also mentioned the forms, but the doctor said “the only ones that count are the WCB forms.”

Rasmussen told the railway that he had been prescribed a week of rest and his doctor would not sign the forms. This surprised the railway’s management, who hadn’t encountered such a refusal before. They also felt an employee with a sprained ankle should be able to perform light duties. Suspicious, the railway hired a private investigator to monitor Rasmussen’s activities. The investigator observed Rasmussen moving around on crutches, but he mostly stayed home during his week of prescribed rest. One day he was seen arriving home by car, and on another, he went out to celebrate his son’s birthday.

Rasmussen returned to his doctor on June 13, and was cleared to return to work as an extra man on a train crew who could provide assistance when able to. Rasmussen had told the doctor he felt he could do this type of work. However, this job wasn’t among the examples in the railway’s information package as it was not considered productive work.

Rasmussen informed the railway of his clearance, but the railway was concerned that he had seemed to progress quickly from no duties to being able to walk along uneven ground as part of the extra man duties. Rasmussen was asked if he had completed the functional abilities form, which he had not.

Rasmussen was told to get the form filled out, so he made another doctor’s appointment. The railway held an investigation meeting on June 14, at which Rasmussen’s activities while he was off were reviewed. Management told him it would need another limitations form stating he was 100 per cent before returning to work full-time. Rasmussen protested that he thought the form wasn’t mandatory because of a note on the medical release form; however, the note only applied to that form. Rasmussen then got his doctor to fill out the form that day.

Employer was suspicious

However, the director of HR was concerned that Rasmussen has been able to continue to work on the day he hurt his ankle, then required a week off. He also had been unable to provide any information on his progress or work status during that week. In addition, the outings showed he didn’t strictly follow the instructions to rest at home.

On June 22, the railway decided to terminate Rasmussen’s employment, as his activities on the video and his seeming difficulty in getting proper information from his doctor about his limitations cast doubt on his injury. The railway felt Rasmussen’s credibility was low regarding his injury in the wake of these developments.

The board found the railway didn’t believe in the seriousness of Rasmussen’s injury, because he had finished his shift and driven home that day. The HR director compared it to similar injuries to other employees, and “effectively assessed the injury in a medical sense and concluded it could not be as severe as (Rasmussen) had asserted,” despite the instructions from the doctor for a week of rest, said the board.

However, the board found that if anything, Rasmussen may have been underplaying his injury. By working the rest of his shift after injuring the ankle, he may have made it worse, and when he first went to the doctor and told him about being able to do light duties, he was probably being too optimistic. When Rasmussen told the railway he had to be off for a week and wasn’t able to perform the light duties they wanted him to, he was being truthful on the nature and severity of the injury, said the board.

The board also found any delays in the functional abilities forms was the result of the doctor’s reluctance to fill them out. Rasmussen asked the doctor at his first appointment and made further appointments to get the information. However, there was an aspect of dishonesty when Rasmussen mentioned to his doctor he could work as an extra man, when the railway had not offered this option. Rasmussen also didn’t convey any of the other light duties the railway was offering, so the doctor couldn’t make an informed decision on whether he could return to work earlier, said the board.

The board found the only misconduct on Rasmussen’s part was that he didn’t report for work for light duties as expected at the end of his week off. He wasn’t dishonest about his injury and it wasn’t his fault his doctor was slow in providing information. Since the railway’s expectation of his return was based on an “uninformed and unfounded judgment” that the injury wasn’t as serious as Rasmussen claimed, his failure to report to work after the week of rest was a refusal to comply with the modified duties program, not a refusal to do work of which he was capable, said the board.

The board found dismissal was too harsh for Rasmussen’s misconduct, though it was important to note that Rasmussen had not acknowledged any wrongdoing or made an apology. He also continued to insist he was only offered the patrol duties and the functional abilities form was optional, despite information provided to him saying otherwise. The railway was ordered to reinstate Rasmussen with a one-month suspension serving to convey “a very forceful message” that honesty and trust are the foundation of the employment relationship.

For more information see:

Southern Railway of British Columbia Ltd. v. C.U.P.E., Local 7000, 2012 CarswellBC 1282 (B.C. Arb. Bd.).