Employee’s exaggeration of injury not the same as faking it: Arbitrator

Employee thought there could be a fracture so was being cautious; no reason to risk job for time off, says arbitrator
|Canadian Employment Law Today|Last Updated: 10/08/2015

An Ontario employer had just cause to discipline an employee who exaggerated her disability but it wasn’t enough to warrant dismissal, an arbitrator has ruled.

The employee was a nurse at the Leamington District Memorial Hospital in Leamington, Ont. She started working at the hospital in May 2004 and had no discipline on her record.

In July 2013, the employee applied for vacation but only some of the dates were approved. On some of the days for which the time off request was rejected, the employee was off work due to a claimed workplace injury. There was no indication the employee tried to mislead the hospital regarding her injury, but one year later, in July 2014, the hospital became suspicious when similar circumstances arose.

The employee asked for the weekend of July 19 and 20 off, but this request was rejected. However, the employee ended up taking the days off due to a back problem. About one month earlier, the employee had seen her doctor complaining of chronic back pain and she received medication. On July 2, the employee claimed she hurt her back golfing. However, due to some shift switching, she worked 12-hour shifts on the following six consecutive nights.

On the seventh day after her golf injury, July 9, the employee came into work for an overtime shift. However, she left early and went to the emergency department complaining of back pain. The employee was given a medical note saying she should be off work the following two days. On July 16 the doctor provided a note saying the employee should be off work until reassessment one week later.

The employee’s doctor was concerned there could be a compression fracture in her spine and had x-rays done. However, the x-rays couldn’t identify or rule out such a fracture and, since the employee was still in pain, the doctor said she should be off work until she reassessed the employee on Aug. 11.

Due to the similarity in circumstances the previous year when the employee took sick days on dates for which she had requested off, the hospital was suspicious and decided to conduct surveillance on the employee over six days from July 23 to 28, when the employee was off work with a sore back.

Over the course of the six days, the employee was observed carrying a backpack while walking – the employee later said the backpack was empty – driving around, playing bingo, going to her daughter’s swimming lesson, shopping – which included bending, twisting, pushing, reaching, and carrying packages –squatting, stretching, and lifting objects. A medical assessment indicated many of these activities were inconsistent with how the employee presented her injury to the hospital.

The hospital’s occupational health nurse contacted the employee to plan a return-to-work program, but the employee said she was unable to do modified work. The employee claimed she couldn’t bend, turn, or lift without pain and she had to take naps during the day. She said she was “walking a little” and “doing nothing at home.” The employee spoke to other members of management and said she her doctor told her to limit her walking and do no lifting.

Hospital management called the employee into a meeting where she was asked about the extent of her disability and her absences. The employee said her doctor told her not to work and her abilities depended on how long she could stand or sit and her level of medication. When she was told of the video surveillance, the employee said she could do some things while on medication but admitted “it did not look good.”

Hospital management determined the employee had misrepresented the level of her back injury in order to get the time off she wanted. As a result, a short-term disability claim she had filed was also considered to be false. This was considered a fundamental breach of the employment relationship, so the hospital terminated the employee’s employment.

The arbitrator found the video surveillance showed the employee was capable of certain modified activities and, since the hospital was willing to offer modified duties, could have been able to work during part of the time she was off. She was able to get doctor’s notes saying she couldn’t work at all because she likely exaggerated her symptoms to her doctor as well as her employer. This exaggeration was dishonest and warranted discipline, sad the arbitrator.

However, the arbitrator noted that the employee had a clean record over a decade of service and the fact she worked six 12-hour shifts in a row showed she didn’t shy away from work. In addition, the employee was under the impression she might have had a fracture in her spine, which hadn’t been ruled out at the time of her dismissal.

“This is not a case where the injury was feigned but rather the symptoms were exaggerated. The concern over a possible fracture may have led in part to the exaggeration,” said the arbitrator.

The arbitrator found the employee didn’t tell the truth regarding her symptoms and finally admitted at the meeting her activity level may have been higher than she let on. Also, despite the vacation days request, there were “no compelling personal reasons to be off work in that time period and that (the employee) would not have risked losing her job for no apparent reason,” said the arbitrator.

The arbitrator found the employment relationship was not irreparably damaged by the employee’s exaggeration of her symptoms. The hospital was ordered to reinstate the employee and discipline would be the denial of any back pay since her dismissal. See Leamington District Memorial Hospital and ONA (Mercer), Re, 2015 CarswellOnt 11067 (Ont. Arb.).

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