AD HOC – 338

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN  NATIONAL RAILWAY  COMPANY

(the “Company”)

AND

UNITED  TRANSPORTATION  UNION

(the “Union”)

GRIEVANCE  RE  DISMISSAL  OF  YARD  FOREMAN  H.C.  LEGROW

SOLE ARBITRATOR:                       Michel G. Picher

There  appeared on behalf of the Company:

R. MacDougall                                     – Student-at-Law

G. C. Blundell                                        – Manager Labour Relations, Edmonton

B. Laidlaw                                              – Labour Relation Officer, Edmonton

A. Wagner                                            – Terminal Superintendent

M. Ratzke                                              – Witness

And on behalf of the Union:

D. W. Ellickson                                     – Counsel, Toronto

J. W. Armstrong                                   – General Chairperson, Edmonton

M. G. Eldridge                                       – Vice-general Chairperson

D. Gagnon                                             – Secretaty

K. Armstrong                                        – Secretary

G. Legrow                                              – Witness

H. Legrow                                              – Grievor

A hearing in this matter was held in Edmonton on October 1, 1994.

AWARD

The facts giving rise to the dispute and the issues are summarized in a joint statement of issue filed at the hearing, which reads as follows:

DISPUTE:

Appeal of the dismissal of Yard Foreman H.C. Legrow on July 3, 1991 for fraudulent claim of benefits stemming from reported injury of September 17, 1990.

JOINT STATEMENT OF ISSUE:

On September 17, 1990, Yard Foreman H.C. Legrow suffered an injury to his back while on duty at Calder Yard. He was diagnosed as suffering from soft tissue injury in the cervical spine and went on Workers’ Compensation Benefits.

On may 5, and 30, 1991, a private investigator by the Company performed surveillance on Yard Foreman Legrow at his home and on the premises of a business - an equestrian centre - owned and operated by Yard Foreman Legrow and his family. As a result of the findings of the private investigator, Yard Foreman Legrow was required to attend an employee statement in connection with his continuing leave of absence and claim of benifits for his injury on September 17. At the statement, photographs and video of Yard Foreman Legrow were submitted by the Company.

Following the statement, Yard Foreman Legrow was dismissed from the Company’s service.

The Union appealed the dismissal of Yard Foreman Legrow contending that he was under the care of his physician throughout the time he was claiming benefits and it was his physician’s opinion that Yard Foreman Legrow was not capable of performing his normal duties with the Company. Furthermore, the Union contends that none of the evidence supported the Company’s claim that Yard Foreman Legrow was fraudulently claiming benefits. The Union also objected to the Company’s use of a private investigator in conducting surveillance on Yard Foreman Legrow and to the manner in which the employee statement was conducted. The Union has requested Mr. Legrow be reinstated and be made whole in all respects.

The Company has declined the Union’s appeal.

On the evidence before me, the Company, which bears the burden of proof, has  failed to establish that Mr. Legrow fraudulently misrepresented his medical condition to obtain Workers’ Compensation Benefits and declined to perform light duties, as alleged by the employer. I am satisfied that Mr. Legrow suffered a spinal injury to his neck during the course of his employment and that that injury caused him, and continues to cause him, serious physical limitations.

The position which the Company took is, to some degree, understandable. Mr. Legrow went off work in September of 1990 with a whiplash injury suffered during the course of switching operations. By May of 1991, he has not returned to work, although he came in on a regular basis to provide medical reports and insurance forms in support of his ongoing claim. It was known to the Company that he was involved in the operation of an equestrian centre on a farm where he and his wife resided, and the Company came to entertain concerns that he was performing work in that regard incompatible with his stated inability to perform light duties. Evidence obtained by a private investigator, including photographs and video tape, show Mr. Legrow performing a number of physical activities which might raise questions about his condition. He is seen working in a refreshment concession during a horse show at the equestrian centre, cleaning a drinking trough, performing minor repairs to a gate, driving and washing his pick-up truck and, on one occasion, loading cans of paint into the rear of his vehicle.

The evidence adduced on behalf of the grievor confirms that in May of 1991 he began to improve. Under instructions from his physician, he took on more and more physical activities to test his ability. It is not substantially disputed that among his greatest problems was the onset of severe headaches occasioned by any extensive physical activity. That evidence is confirmed, to the arbitrator’s satisfaction, by a substantial record of prescription medication through and including the period in question. Perhaps most significantly, at the very time that the Company was entertaining its concerns about the bona fides of Mr. Legrow’s condition, his own physician provided a report indicating that he was improving and would, in all likelihood, be able to return to work soon. In a medical report dated May 31, 1991, Dr. Hosford reported to the Company, in part:

He does seem to be making some progress with respect to his pain from headaches as a result of the whiplash injury. It is possible he might be ready for non-strenuous forms of employment within the next 4-6 weeks.

The Company obviously did not accept that prognosis and formed the conclusion that in fact the grievor had been malingering for some time. The arbitrator cannot share that view, on the evidence adduced. The fact that Mr. Legrow performed minor physical activities of relatively short duration, both in relation to the equestrian centre for which his wife is chiefly responsible, and in cleaning and driving his truck, does not establish that he pursued a course of deliberate falsity in respect of his illness. Nor does the fact that he was soon thereafter removed from Worker’s Compensation Benefits, as it appears that his own physician was of the view that he would become employable, on a light-duty basis, in June or July of 1991. The arbitrator’s conclusions make it unnecessary to deal with the issue of the propriety of the surveillance.

For the foregoing reasons, the arbitrator is satisfied that the Company did not have just cause to terminate Mr. Legrow in July of 1991. I am, therefore, satisfied that he should be reinstated, without loss of seniority, into his employment. The issue of compensation is more problematic. By his own account, even to the present day, Mr. Legrow has not made a full recovery. The extent to which he would have been employable during the period from his discharge to the present is very much in question. To that extent, so is the issue of his compensation, and the related question is whether he is now physically fit to return to work.

In the circumstances, the arbitrator is satisfied that it is appropriate to allow the grievance, to the extent of declaring that the grievor is to be reinstated as an employee. His return to active service must, of course, depend upon proof, in the form of satisfactory medical documentation, that he is fit to return to work, even on the basis of performing light duties. In light of the difficulties which relate to the issue of compensation, the arbitrator deems it appropriate to remit this matter to the parties for their own consideration and, hopefully, a resolution. Should they be unable to resolve that issue, I retain jurisdiction in respect of all aspects of the interpretation and implementation of this award.

DATED AT  TORONTO, this 6th day of October, 1994.

(signed) MICHEL G. PICHER

ARBITRATOR

SUMMARY – AH 338:

Discharge of Yard Foreman H.C. Legrow for fraudulent claim of benefits stemming from reported injury – video evidence of employee performing physical acitivities which company felt indicated that he was no longer unable to work – medical evidence that increased physical activities were monitored by his physician and that he was taking prescribed medication for  pain – company’s evidenced does not discharge burden of proof  - reinstated – compensation for an employee who continues to be unable to work remitted to the parties – Grievance Allowed

KEYWORDS – AH 338:

Discipline, discharge, injury, WCB fraud, video evidence, burden of proof, compensation, allowed