SHP 252

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA

(the "Union")

AND IN THE MATTER OF THE GRIEVANCE OF P. LEDUC

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

T. Wood

APPEARING FOR THE COMPANY:

J. Pasteris

A hearing in this matter was held at Montreal on October 11, 1988.

 

 

AWARD

The grievor, a Carman having Some twenty-four yearsí Service with the company, was discharged on November 30, 1987. The Joint Statement of Issue in this matter is as follows:

On January 9, 1986, Mr. Leduc claimed he was injured while working at the Pointe St. Charles Shops. He was placed on workers compensation benefits. Following this incident the Company was informed that Mr. Leduc was performing certain activities around his home while he was receiving Workersí Compensation Benefits. The Company launched an investigation of Mr. Leducís condition and activities. Testimony from witnesses was obtained by the Company. Photographs and a video tape were taken of Mr. Leduc performing these activities.

On April 16, 1986, Mr. Leduc was declared fit to resume his duties as a Carman at Pointe St. Charles and proceeded to that location. However when Mr. Leduc became aware of the work he was being assigned he refused to do it.

The Company appealed the Workers Compensation (CSST) disability claim and, following several hearings by the Board on February 10, April 7 and August 25, 1987 it was determined by the Board on September 14, 1987 that Mr. Leduc had not sustained a disability injury on January 9, 1986 nor did he have a relapse on April 23, 1986. Mr. Leduc has appealed this decision. The Company obtained an employee statement from Mr. Leduc on November 23, 1987 regarding his claim. Mr. Leduc was discharged on November 30, 1987 for "Fausses déclarations pour réclamations de prestations díaccident de travail".

The Brotherhood has appealed the discharge stating Mr. Leduc was unjustly dealt with and have requested his reinstatement without loss of seniority, compensation, or benefits.

The Company has declined the Brotherhoodís request.

The Bureau de révision paritaire has concluded that the grievor was not in fact injured at work on January 9, 1986. While a false claim by an employee would be grounds for discipline, I do not consider that it is necessary for me to make any determination of that question, which is now under appeal. Even if it is found that the grievor was in fact injured on January 9, 1986, there is no evidence before me to the effect that the grievor was, during his absence from work following such injury, engaging in conduct inconsistent with any real disability, such conduct, during a period for which claims for compensation due to disability were being made, would also subject an employee to discipline. In the instant case, the matter may be conclusively determined on the basis of a consideration of the evidence on that point, without making any determination as to the original injury.

On April 1, 1986, the grievor was observed performing certain work at the front of his house, and photographs were taken. These show the grievor cleaning and taking down a large tarpaulin (a swimming pool cover) which had been hung up on a frame in the driveway. As well, there are photographs of the grievor raking at the front of the house. The tasks performed by the grievor clearly involved bending, stretching, lifting and carrying. The motions involved the use of the shoulder muscles, and in particular of the left shoulder which the grievor claimed to have injured.

Considered as an isolated incident, the grievorís activity on April 1, 1986, while raising doubts as to the extent of his disability, would not be determinative of that question, in my view. On April 9 the grievor was seen by his physiotherapist, on April 11 by an orthopaedic surgeon and on April 14 by a neurosurgeon. None reported any positive findings of significance, the orthopaedic surgeon expressing, in his detailed report, considerable skepticism as to the grievorís having been injured at all. It is clear that the grievor was considered to be fit to return to work at that time, although the neurosurgeon suggested that a sitting job would be best.

On April 16 the companyís medical officer authorized the grievorís return to work, without restrictions. The grievor was assigned a task which included lifting a car with a crane and setting the car on heavy trestles. This job included the physical work of manipulating the trestles into place. The grievor made no formal complaint about the assignment, nor, it appears, did he ask for help in moving the trestles. He simply refused the assignment and left work. He went to his own doctor, who gave a sympathetic ear to the grievorís complaints and who, a few days later, certified that the grievor should be absent from work for eight further weeks.

On April 23, the grievor was observed doing a number of jobs outside his house. A videotape shows the grievor performing a wide range of tasks, involving a full range of activity, some of it strenuous. The grievorís movements appear to be at a normal pace. No favouring of the shoulder or any part of the body appears, and there is no sign that the exertion involved caused the grievor any pain. Later that morning, the grievor attended at the companyís office where he told a Claims Assistant of the suffering and intense pain which his injury caused him. It is said that the grievor often broke into tears during this interview. The grievor claimed that his condition was due to a relapse of previous injuries. The doctorsí reports before me do not support that claim. Following the interview, the grievor was observed running two long blocks, including running up and down some steps, to his car.

On April 24, the grievor was again filmed while performing work around his house. On the previous day, he had been seen transporting gravel in a wheelbarrow. On April 24, he was transporting earth. He continued to engage, without apparent discomfort, in fairly strenuous work involving a wide range of physical movements. On April 28, the grievor was photographed fertilizing his lot and cleaning his pool.

The hearings before the Bureau de révision paritaire extended over a considerable period of time. When the Boardís decision was made, the company then called the grievor for an investigation. While the investigation was said to be in respect of events "from January 9, 1986 until today", it was primarily concerned with the grievorís activities in April, 1986, during which time he was claiming compensation in respect of a disability. On the material before me, it is clear that there was, at that time, no substantial physical basis for a claim of disability and that the grievor was in fact performing a wide range of moderately strenuous physical tasks without any apparent discomfort.

It is quite understandable that an injured person would, in the course of recuperation and convalescence, become more and more active, and begin to perform certain demanding physical tasks. To be absent from work because of a disabling injury need not necessarily entail complete inactivity. Indeed, an increasing degree of activity may well be thought to accelerate recuperation, at least in some cases. In the instant case, however, the grievor, on the evidence, was regularly engaged for prolonged periods in a wide range of strenuous activity, without showing signs of pain. At the same time, he was claiming to be unable to work, and to experience considerable suffering. Having regard to all of the material before me, it is my conclusion that, at the material times, the grievorís claim to have been incapacitated from working, and his declarations made for the purpose of obtaining compensation, were false.

There was, I find, just cause for the imposition of discipline in the circumstances, and having regard to the substantial nature of the benefits received, and to all of the material circumstances, I find there was just cause for discharge.

For all the foregoing reasons, the grievance must be dismissed.

DATED AT TORONTO, this 21st day of October, 1988.

(signed) J. F. W. Weatherill

Arbitrator