IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY
AUTOMOBILE, AEROSPACE, TRANSPORTATON AND GENERAL WORKERS UNION OF
(A. Jaffer Dismissal)
ARBITRATOR: Vincent L. Ready
COUNSEL: Mike Moran for
At the commencement
of the hearing, the parties agreed that I was properly constituted as an
arbitrator with jurisdiction to hear and determine the matters in dispute. This grievance concerns the dismissal of A.
Jaffer, the grievor, on
…conduct incompatible with your employment, as evidenced by
your misrepresentation of a physical condition, as well as for your subsequent
fraudulent claim for, and reception of Workers’ Compensation Benefits in
connection with that misrepresentation
At the time of the
grievor’s dismissal, he was employed as a Machinist at Ogden Shops, a
mechanical facility located in
The Union raised as
a preliminary objection, the issue of whether the Company was entitled to rely
on information provided in a letter dated August 18, 2000 from Joan Lantz, Case
Manager of Alberta Workers’ Compensation Board (the “WCB”) as the basis for its
decision to dismiss the grievor. The
This letter is sent regarding the status of your claim and
in follow up to our conversation on
As I explained to you on
Under surveillance which was done over a three day period, there is no disability displayed. You are seen walking for an extended period of time without difficulty, as well as bending, twisting and turning. You are also observed working on your vehicle in your garage which required you to frequently bend forward, squat and kneel. While working on the tire of your car you are also seen to torquing without difficulty on a wheel wrench to tighten the bolts.
According to Policy: 04-02 Part II Application I a worker is eligible to receive temporary total disability benefits when:
…there is medical evidence the work-related injury has resulted in temporary work restrictions which prevent the worker from resuming pre-accident employment or other suitable employment.
Temporary total disability benefits are payable for as long as the compensable temporary total disability lasts, generally until:
· The weight of medical evidence indicates the worker is considered fit to return to suitable employment
Your capabilities seen while under surveillance do not warrant payment of temporary total disability benefits as outlined in Policy: 04-02 and as a result you were informed on August 13 benefits would be discontinued as of the 13th.
During our meeting on August 17th and after reviewing the video you stated that you were capable of the duties seen due to Demerol which you take on a daily basis. You noted that on the day of the medical exam you did not take your medication which was the cause of the significant change in your abilities.
Although you confirmed that you regularly take your
medication (with the exception of the morning prior to the medical exam) the
capabilities seen while under surveillance and those displayed while at the
Columbia Rehab and during our meeting on
Due to the inconsistencies in your presentation and the capabilities seen on surveillance you are no longer considered to be temporarily totally disabled and are no longer entitled to benefits from the Workers’ Compensation Board.
Your doctor will be provided a copy of the surveillance tape and should he submit a report after reviewing the video it will be reviewed by myself and our medical department.
Should you have any questions I can be reached at 517 6187 or you may contact my supervisor, Don French at 517 6068.
The Workers’ Compensation Board of
· Made within twelve (12) months of the decision under appeal (Section 40(1) of the Workers’ Compensation Act),
· Made in writing
· Specific about the decision you are appealing
· Clear about the reason you are appealing, and
· Clear about the result you expect from the appeal.
…CPR is aware of the existence of certain documents and a video surveillance tape on the WCB’s files, a list of which is set forth below (the “Evidence”). For your convenience, we have enclosed copies of the Evidence, with the exception of the noted video tape. It is CPR’s understanding that the Evidence provided the basis for the WCB’s decision to terminate the Claimant’s WCB benefits. The union’s grievance on behalf of the Claimant asserts that the Claimant was injured and did not fraudulently claim the WCB benefits paid by CPR. Accordingly, CPR believes that the Evidence is very relevant to the arbitration and is necessary for a fair hearing o the union’s grievance.
CPR understands that in accordance with section 142(1) of
the Workers’ Compensation Act (
The Evidence is as follows:
1. WCB Memo dated
2. Note to file
3. Video Surveillance Tape.
4. Physician Weekly Update reports.
5. WCB CIS Notes/”TO DOS” as of 98-08-01 re: Joan Lantz’s discussion with Claimant regarding the reason for closing his file. Dated 2000-08-18 …
(hereinafter items, 1, 2, 4 and 5 will be referred to as the “WCB Documents”)
In response, on
…Further to your facsimile of March 1, 2001, this shall serve to confirm that you have the WCB’s consent pursuant to section 142(1) of the Workers’ Compensation Act, to make full use of the “evidence” (as outlined in your facsimile) obtained from Mr. Jaffer’s WCB’s claim file, in the upcoming labour arbitration hearing dealing with the grievance filed by Mr. Jaffer’s Union with respect to his termination by CPR….
In addition to the
WCB Documents, the
All known existing evidence to be used in the investigation shall be furnished to the employee at the commencement of the statement.
Copies of statements, stenographic reports and all other evidence taken shall be furnished to the employee and, if present, to his/her authorized representative.
Further, it is the
In support of its arguments the
The Company argues that the
The Company submits that in accordance with section 142(1) of the Act, it sought the WCB’s consent to use the WCB Documents in this arbitration hearing. As the WCB granted consent, it is the Company’s position that the WCB Documents are properly before this arbitration panel.
At the hearing, I reserved on
I am satisfied, following
careful consideration of the
The relevant provisions of the Workers’ Compensation Act are as follows:
Notice of Decision
39 On the making of a determination as to the entitlement of a worker or his dependent to compensation under the Act, the employer and the worker or, in the case of his death, his dependent, shall, as soon as practicable, be advised in writing of the particulars of the determination, and shall, on request, be provided with a summary of the reasons, including medical reasons, for the determination.
Confidentiality of Information
141(1) No member, officer or employee of the Board and no person authorized to make an investigation under this Act shall, except in the performance of his duties or under authority of the Board, divulge or allow to be divulged any information obtained by him in making the investigation or that comes to his knowledge in connection with the investigation.
(2) No member or officer or employee of the Board shall divulge information respecting a worker or the business of an employer that is obtained by him in his capacity as a member, officer or employee unless it is divulged under the authority of the Board to the person directly concerned or to agencies or departments of the Government of Canada, the Government of Alberta or another province.
(3) Notwithstanding subsections (1) and (2) and section 29(3), where a matter is being reviewed or appealed under section 40 or 116,
(a) the worker, or the worker’s personal representative or dependant in the case of the death or incapacity of the worker, or the agent of any of them, and
(b) the employer or his agent
are entitled to examine all information in the Board’s files that is relevant to the issue under review or appeal, and those persons shall not use or release that information for any purpose except for the purpose of pursuing the review or appeal.
Board Records Privileged
142(1) The books, records, documents and files of the Board and all reports, statements and other documents filed with the Board or provided to it are privileged and are not admissible in evidence in any action or proceeding without the consent of the Board.
(2) With respect to any information or material obtained, received or produced by a person in the performance of that person’s duties under this Act, neither
(a) a member of the board of directors of the Board,
(b) an employee of the Board,
(c) an appeals commissioner, nor
(d) an employee of the Appeals Commission
shall be required to give evidence in a civil suit or proceeding to which the Board or the Appeals Commission is not named as a party.
(3) Nothing in subsection (2) shall be construed so as to affect the powers of the Board or the Appeals Commission under section 12(5) and (6) or the powers, privileges or immunities of the Board under section 15.
143 A certificate purporting to the signed by the secretary
(a) setting out the substance of any order, ruling or decision of the Board, or
(b) setting out information from any books, records, documents or files of the Board in the form of an extract or description
shall be admitted in evidence as prima facie proof of the facts stated in it without proof of the signature or official character of the person signing it.
The letter of August 18, 2000 advised the grievor of the WCB’s decision to discontinue his benefits and provided information on how to appeal the decision. As noted at the bottom of the letter, a copy was sent to the Company. It is not disputed that the August 18, 2000 letter constituted a decision of the WCB (hereinafter referred to as the “WCB Decision”). Indeed, the grievor appealed the WCB Decision to the Claims Services Review Committee and thereafter to the Appeals Commission.
Pursuant to section 39 of the Act, the Company was entitled to receive the particulars of the WCB Decision, and a summary of the reasons, including medical reasons. That provision does not limit the Company’s use of the WCB Decision.
Moreover, a reading of sections 142(1) and 143 together leads me to conclude that the WCB Decision is not privileged as alleged by the Union. Section 142(1) provides that the “books, records, documents and files of the Board” are privileged. The section does not refer to “decisions” of the WCB. However, in section 143, subsection (b) refers specifically to the “books, records, documents or files of the Board” (i.e., exactly the same language as in section 142(1)) and subsection (a) refers to “any order, ruling or decision of the Board.” In other words, in section 143, a distinction is made between a decision of the Board and information from any books, records, documents or files of the Board.
The clear expression in subsection 142(1) that “books, records, documents and files of the Board” are privileged should therefore be interpreted as excluding decisions. In other words, it can be concluded that the drafters of the statute were intentionally silent in not including “decisions of the Board” in the list of privileged items set forth in section 142(1). If the Legislature intended decisions to be privileged, presumably the Legislature would have said so.
Thus, I am satisfied that the Company, at the time of its investigation, was not prohibited from using the WCB Decision for the purposes of its own investigation into the alleged misconduct of the grievor. Moreover, I note that a copy of the WCB Decision was provided to the grievor prior to the commencement of the investigative statement in accordance with Rule 28.2 of the Collective Agreement. Therefore, I find that WCB Decision is admissible as evidence.
As for the Union’s objection to the admissibility of the WCB Documents, it appears to me that this objection must also fail.
Pursuant to section 141(3)(b) of the Workers’ Compensation Act, the Company was prohibited from using the WCB Documents for the purpose of its investigation into the grievor’s alleged misconduct. Indeed, the Company did not furnish the WCB Documents to the grievor at the commencement of the investigative statement, nor did it refer to them in the course of the statement.
At the time of the grievor’s dismissal, the WCB Documents were still under the protection of section 141(3)(b) and therefore could not be used for the purposes of the grievor’s dismissal. As the Company contends, the grievor’s dismissal was based only on the WCB Decision and the grievor’s statement.
In the circumstances of this case, I find that Rule 28.2 has not been breached. The Company was not entitled to use the WCB Documents in its investigation into the grievor’s alleged misconduct and did not base its decision to dismiss the grievor on the WCB Documents.
Following the grievor’s dismissal, the Company sought and obtained the WCB’s consent to use the WCB Documents in this proceeding. The Workers’ Compensation Act expressly contemplates the use of the books, records, documents and files of the WCB in a proceeding other than a WCB review or appeal so long as the WCB consents. The discretion to determine if such information from the WCB file should be used in other proceedings is granted to the WCB pursuant to section 142. It is not for this arbitrator to determine whether, in the circumstances of this case, the WCB’s decision to provide consent was made erroneously.
However, I note that the Company did not seek nor receive the WCB’s consent to use the Medical Status Examination Report dated June 29, 2000. Therefore, pursuant to sections 141(3) and 142(1) of the Workers Compensation Act, I find that it is not admissible in this proceeding.
For these reasons, I find that the WCB Decision and the WCB Documents are relevant to the matter before me and are admissible in this proceeding.
I now turn to the merits of the case.
On January 28, 1998, the grievor suffered a work-related injury. He claimed that he felt pain in the lower area of his back while moving a cylinder head from a pallet to a conveyor belt. The grievor received WCB benefits until March 17, 1998 when he returned to work with certain restrictions. One week later, on March 25, 1998, the grievor complained to his supervisor that he was again experiencing lower back pain which resulted in another WCB claim and absence from work.
On June 17, 1998 the grievor returned to work on modified duties. In early December, 1998 he visited an on-site health center for heat treatments. On December 8, 1998 the grievor was observed in the workplace lying, with a heating pad, on a bench claiming his back was bothering him. The next day, he reported to work advising that he was under the influence of Demerol. The grievor was sent home due to safety concerns.
The grievor’s absence from work continued until March 5, 1999. Upon his return, he was placed on modified duties. On May 21, 1999, the grievor suffered another work-related injury to his lower back. According to the grievor, he felt a sharp pain in his lower back when he was pushing up against the spring tension of an intake valve while trying to close it. Despite this injury, the grievor remained at work up until May 31, 1999. On that day the grievor reported to work and advised his supervisor that he was under the influence of Demerol. He was sent home and applied for Weekly Indemnity Benefits and subsequently WCB benefits, which were granted on June 21, 1999. The grievor remained off work until his dismissal. The Company did not receive any medical documentation that indicated a potential return to work.
On June 29, 2000 the grievor was seen by Dr. England at the Columbia Rehab Center for a Medical Status Exam at the request of the WCB. Following Dr. England’s examination, the WCB conducted surveillance of the grievor from July 15-17, 2000.
On July 11 and 18, 2000, the grievor was examined by his personal physician, Dr. Suresh. In Dr. Suresh’s report to the WCB he indicates that the grievor was being treated with the medication Vioxx and that the grievor was not capable of work. I note that Dr. Suresh has not responded to the WCB’s request that he provide comments on the videotape of the grievor’s surveillance.
In a memorandum dated July 26, 2000 to the WCB case manager, Dr. Rowat, Medical Advisor with the WCB, relays his observations of the grievor from the videotape and concludes “[F]rom observation of the demonstrated functional ability it would be my opinion from observation that the subject of this video was probably capable of performing at least medium category activities. The subject performed tasks and moved much more freely and to a greater extent than was demonstrated at the medical status exam on June 29, 2000.”
On July 27, 2000 Dr. England wrote in a note to file:
I had the opportunity to do a Medical Status Examination on this gentleman on the 29th of June 2000.
This videotape demonstrates this gentleman walking in no apparent distress, bending, using an inversion machine and participating in activities in his garage which required bending, twisting and turning.
There is no doubt in my mind that this gentleman at the time of the Medical Status Examination attempted to deceive me. He did not represent his true capabilities on physical examination nor upon history.
It is likely that this gentleman is capable of a significant amount of work. My examination is invalid.
On August 13, 2000, the WCB case manager contacted the grievor and advised him of the surveillance. Among other things, the grievor was told that he had been observed working on his car in the garage. He indicated to the case manager that he did not recall working in the garage on his car and therefore it was not him on the tape.
On August 18, 2000, the grievor met with his WCB case manager, Joan Lantz. Her notes indicate, in part:
Worker indicated that it was infact (sic) him on the tape but he states that the only reason he is able to do the activities shown is because of the Demerol he takes. He states that he did not take his medication the morning of the MSE and did not tell this to the examining doctor. Reviewed that if the worker was able to do the activities in the video due to meds he should display this behaviour consistently. While at Columbia in the past couple of weeks this is not the case and today coming to the meeting he displayed a significant limp and walked very cautiously (although he confirmed that he did take his medication today).
In August of 2000, the Company received the WCB Decision from the WCB, the contents of which were reproduced above. Upon receipt of the WCB Decision, the Company conducted a formal investigation. On November 15, 2000, an investigative statement was taken from the grievor. The grievor was advised that the subject matter of the investigation was in connection with his “activities during the period of absence from May 31, 1999 to August 13, 2000 and subsequent Workman’s Compensation Board decision to cease your continued entitlement to Workers Compensation benefits.”
During the Company’s investigation, the grievor was asked the following questions:
Q06: In reference to the WCB Board letter sent to you, dated August 18th it states that your capabilities seen under surveillance do not warrant payment of temporary total disability benefits. Do you have comments in reference to that statement contained within the letter?
A06: I am appealing the Boards decision.
Q07: In fact, the WCB Board ceased your benefits, as a result of the video surveillance evidence and their conclusions on review of that evidence. Is this correct?
Q08: In reference to the WCB Board letter sent to you, dated August 18th, it also states that due to the inconsistencies in your presentation and the capabilities seen on surveillance you are no longer considered to be temporarily totally disabled and are no longer entitled to benefits from the Worker’s Compensation Board. Do you have any comments in reference to that statement contained within the letter?
A08: I am appealing that decision.
Q09: Within the Board’s letter to you, it details a variety of physical activities that you were observed as a result of surveillance conducted by the Board. The Board states that those physical activities indicated that no disability was displayed during the period of surveillance. Do you have any comments in reference to that statement?
A09: This statement is correct, however, I was under the influence of Demerol.
Q10: Please explain how you were able to perform the physical activities as stated within the Board letter dated August 18th/2000, claim #3893722, such as bending, twisting, turning, working on your vehicle, squatting, kneeling, walking for an extended period of time, and torquing bolts on your car, when in fact you have indicated to the Board that your physical condition was such that you are not capable of performing any type of physical activity?
A10: These activities referred to by the Board are difficult to perform but not impossible, with the aid of Demerol I can perform these functions.
Q11: In reviewing the Board’s decision to cease your WCB benefits, and the activities displayed by you during the surveillance, as stated by the Board, one can only, based on the evidence and the board decision, conclude that you were in fact not disabled, not entitled to WCB benefits, and were in fact capable of performing work for your employer. Do you have any comments in reference to this suggestion?
A11: This decision has gone to appeal as we speak.
Q12: The Board has stated in their letter to you of August 18th, that the physical activities displayed by you in the surveillance video are totally inconsistent with your capabilities displayed and described by you at the Columbia Rehab Center on June 29th, and your capabilities displayed at the Board meeting of August 17th. Do you have any comments in reference to this statement?
A12: I have no comment because this situation is going to appeal.
Q13. Do you understand that by not participating fully in this investigation, you are passing up the opportunity of providing the company with any information that may weigh in your favor?
A13: I believe I am fully cooperating with the company.
Q14: At your meeting with the Board on August 17th, you stated that the physical activities that you displayed within the video were due to the fact that you were taking Demerol on a daily basis, and this in itself allowed you to perform the activities displayed. Is this correct?
Q15: You also stated to the Board, that you take Demerol on a daily basis, except on the occasion when you attended the Columbia Rehab Center for your medical examination. Is this correct?
Q16: Please explain why you would not take your Demerol on the date you attended the medical examination at Columbia?
A16: I thought being not under the influence of painkillers would allow for a proper physical assessment.
Q17: Did you advise the attending physician on the date of your medical examination that you normally take Demerol on a daily basis, however you were not taking it on the morning of the examination?
A17: I’m on Demerol on a daily basis, and I don’t remember.
Q18: How long have you been taking the medication, Demerol?
A18: Roughly since 1998.
Q19: You have stated during this investigation and in your interview with the WCB Board case manager that the taking of Demerol enabled you to perform the variety of physical tasks that were displayed during the video surveillance. Does the taking of Demerol have such a significant positive affect on your physical limitations and daily functional capacity that you are physically able, without distress, to perform the physical activities demonstrated in the video?
Q20: Does the taking of Demerol on a daily basis impede or provide risk to you while performing physical activities such as repeated bending, twisting, kneeling, squatting, and walking for extended periods of time?
A20: I’m not qualified to answer that question.
Q21: Do you have anything else you wish to add to this statement?
A21: Due to a prior work related injury in 1998, I found myself working daily while taking Demerol. On May 31st/2000, I was sent home, by whom I believe was Allen Fauconbridge for being under the influence of Demerol. (The Company notes that this should be May 1999).
Q22: Do you have anything else you wish to add to this statement?
A22: Not at this time.
Q23: Are you satisfied in the manner in which this investigation has been conducted?
On November 28, 2000 the grievor was dismissed from service. The contents of the notice of discipline were reproduced above.
On December 29, 2000, the Union filed a Step II grievance on behalf of the grievor claiming that the Company had not produced any evidence on which they based their decision that a fraud or misrepresentation had occurred during the time period in question.
On January 6, 2001, the Company denied the Union’s appeal on behalf of the grievor, stating in part:
Mr. Jaffer has stated to the WCB board and during his investigation that he was able to perform these tasks due to the daily use of the medication Demerol. He further has stated that he has been using Demerol since 1998. Research provided on this medication indicate that Mr. Jaffer’s statements can not be considered truthful.
It must also be noted that the use of Demerol (Meperidine) may impair the mental and/or physical abilities required for the performance of potentially hazardous tasks such as driving a car or operating machinery. When employees are placed on this medication our medical department takes an active role in advising employees that alternative medications are available that would permit their return to work. They are further advised to discuss these options with their physicians. Clearly Mr. Jaffer made no attempt in this regard to permit his return to work.
At the hearing, an excerpt was submitted from the Compendium of Pharmaceuticals and Specialties (CPS), 36th edition, 2001 in regard to Meperidine, the clinical name for Demerol. The CPS advises:
[Demerol] is a narcotic medication…used for the relief of moderate to severe pain…The usual dosage is 50 to 150 mg orally, every 3 to 4 hours as necessary…Analgesic affects are detectable within about 15 minutes following oral administration, reaching a peak within about two hours and subsiding gradually over several hours thereafter…It may impair the mental and/or physical abilities required for the performance of potentially hazardous tasks such as driving a car or operating machinery…The most frequently observed adverse reactions include lightheadedness, dizziness, sedation, nausea, vomiting, and sweating. These effects seem to be more prominent in ambulatory patients and in those who are not experiencing severe pain…Other adverse reactions include: …uncoordinated muscle movements…Each white tablet contains…Meperidine HCL 50 mg.
According to information received by Dr. John Cutbill, the Company’s Chief Medical Officer, from the College of Physicians and Surgeons, the grievor has received the following prescriptions for Demerol: August 18, 1998 - 30 tablets; December 9, 1998 – 30 tablets; May 22, 1999 – 20 tablets and, July 5, 2000 – 30 tablets. In addition, prescription receipts dated December 19, 2000 and January 3, 2001, each for 100 tablets of Demerol, were tendered as evidence.
The grievor’s appeal of the WCB Decision to the Claims Services Review Committee was denied on June 15, 2001. A further appeal to the WCB Appeals Commission was denied on November 26, 2001.
At the time of his dismissal, the grievor was 49 years of age with 19 years of Company service. During his career, the grievor had been disciplined on four separate occasions. Specifically, for poor workmanship, taking an early quit, running on Company property and conduct unbecoming for engaging in a verbal and physical altercation. However, in accordance with the Company’s discipline system to all intents and purposes his record was clear at the time of his dismissal.
The grievor’s work history reveals a propensity for injury. From 1987 until the time of his dismissal, there have been a total of ten injuries which have resulted in 44 months of compensated lost time and a number of other instances, some of which resulted in modified or light duty accommodations.
POSITION OF THE COMPANY
The Company argues that the grievor did misrepresent his condition of a physical back injury to the Company and the WCB, as evidenced by the WCB Decision which confirms results of videotaped surveillance conducted by the WCB. According to the WCB Decision, the video clearly reveals actions by the grievor inconsistent with his claims of injury he suffered.
It is the position of the Company that the dismissal of the grievor was an appropriate response to attempts to claim WCB benefits to which he was not entitled. The Company submits that the reasons for the WCB’s denial of the grievor’s claim as outlined in the WCB Decision, coupled with the evidence obtained during the grievor’s interview, clearly establishes, on the balance of probabilities, that the grievor did engage in activities that were fraudulent with respect to his claims of injury.
The Company asserts that the grievor admitted during its investigation that he was indeed performing activities in contrast to the limitations he presented during a medical examination. His only explanation of this was that he had taken Demerol on a daily basis for a number of years, other than on the day of his medical examination. The Company submits that the only issue to be determined is whether or not this explanation is to be believed.
The Company submits that the grievor did not make full use of the investigative process to adequately explain his actions as described in the WCB Decision. It characterizes the grievor’s responses during the interview as being evasive. In the Company’s view, the grievor did not offer any information that would mitigate his responsibilities or explain his actions in the surveillance video. The Company rejects the grievor’s defense that he was under the influence of Demerol.
The Company’s position is that the research provided on Demerol, namely from the CPS, indicates that the grievor is not to be believed. In oral argument, Counsel for the Company indicated that according to Dr. Cutbill, Demerol is not considered a “casual pain killer” but is reserved for cases when all front line drugs or pain killers are not working. While Demerol can relieve pain in muscular-skeletal cases, it will not relieve stiffness. The Company argues that the evidence displays Demerol as an unlikely course of treatment over the long term for the condition of back pain.
As well, the Company argues that it is unlikely that the grievor could have taken Demerol daily prior to his exam with Dr. England, as he had not had a prescription since May 23, 1999 and his allotment of 20 tablets would by that time have been exhausted. The Company contends that the grievor has created the “illusion” that Demerol has been the cure to all his ailments.
The Company argues that the activities displayed on the video are inconsistent with the use of Demerol. In particular, the Company asserts that, in the video, the grievor showed no signs of difficulty while driving his car. The Company argues that it is clear from the evidence that the grievor greatly exaggerated his use of Demerol in a deceitful attempt to explain the inconsistencies demonstrated in his physical capabilities. Moreover, the Company notes that the WCB did not believe the grievor’s explanation with respect to Demerol.
The Company argues that the evidence from the WCB is compelling and provides further support for the Company’s decision to dismiss the grievor. In particular, the Company relies on the reports of Dr. England and Dr. Rowat in support of its position that the grievor’s abilities as displayed on the videotape were inconsistent with his claims for injury.
It is the Company’s opinion that if the grievor was capable of performing the activities on the videotape, as described in the WCB Decision, then he was also capable of returning to work, even if only on modified duties. The Company submits that even though the grievor was familiar with the Company’s Disability Management process, at no time did he approach the Company in this regard. Furthermore, the Company argues that as evidenced by Dr. Suresh’s reports which indicated the grievor was not capable of work, the grievor misled his own doctor about his abilities to perform modified duties.
The Company submits that the grievor’s display of a “significant limp” and “cautious walk” during the meeting with the WCB case manager on August 17, 2000, when he had advised he had taken Demerol, disputes the logic of his defense.
In the Company’s view, the seriousness of the grievor’s actions can only be met with dismissal. It submits that the grievor’s defense of Demerol strikes at the heart of his dishonesty.
POSITION OF THE UNION
It is the Union’s contention that the Company based the dismissal of the grievor on an unsubstantiated statement contained in the WCB Decision which suggests that, because of what the claims adjudicator allegedly viewed on surveillance tapes, the adjudicator felt he was not disabled. Furthermore, the Union argues that the Company did not establish any wrongdoing on the grievor’s behalf sufficient to give the Company cause to dismiss him. The Union submits that the grievor was treated in an arbitrary, discriminatory and excessive manner in regard to his dismissal.
The Union’s position is that the grievor’s explanation that he was on Demerol during the period of the video surveillance and that while he was under the influence of Demerol he was able to perform the activities observed, is undisputed evidence. The Union notes that the Company did not introduce any contrary evidence, nor take a supplementary statement regarding the effects of Demerol. Further, the Union submits that the Company has not presented any research information on Demerol which would substantiate its claim.
The Union submits that the WCB decision does not make any accusation with regard to fraud with respect to the time period June 21, 1999 to August 13, 2000 as stated in the Company’s Notice to Dismiss.
The Union argues that the grievor presented a plausible and believable explanation for his activities during the three days of surveillance. It seeks the grievor’s return to duty forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any monies owing.
Having carefully considered the evidence and submissions of the parties, I find that the grievance must be upheld. In Canadian Pacific Limited v. Transportation Communications Union, Case No. 2651 (July 13, 1995), Arbitrator Picher stated the following:
In the past this Office has had occasion to consider the seriousness of fraudulent claims of injury, when presented with compelling video tape evidence to sustain the Employer’s allegation. (See e.g., CROA 2184, 2302.) In an appropriate case, where the evidence establishes, on the balance of probabilities, that an employee has knowingly engaged in an attempt to defraud the Employer of sick leave, insurance benefits or Workers’ Compensation benefits, the seriousness of such action has been sustained by the arbitrator, with discharge generally being found to be appropriate in light of the breach of the relationship of trust fundamental to the employment contract.
It is well established in the jurisprudence that an employer must present cogent evidence in support of an employee’s dismissal on the ground of fraud. While in this case the Company clearly had reason to be suspicious, the evidence adduced by the Company does not meet the standard necessary to establish, on the balance of probabilities, that the grievor misrepresented his physical condition and subsequently fraudulently claimed and received WCB benefits.
The evidence is that the grievor suffered a series of injuries beginning on January 28, 1998 which entitled him to receive WCB benefits. Although the Company alleges that the grievor misrepresented his injuries from June 21, 1999, the evidence does not support such a finding. The WCB Decision that the Company relied upon, in conjunction with its investigation, to dismiss the grievor does not address a period of time prior to June 19, 2000.
During the interview, the grievor confirmed that taking Demerol enabled him to perform the variety of physical tasks that were displayed during the video surveillance. He explained that the activities referred to in the WCB Decision, were difficult to perform but not impossible, and that with the aid of Demerol he could perform these functions. He advised that he had been taking Demerol roughly since 1998 and that he takes it on a daily basis. He explained that he did not take Demerol on the date he attended the medical examination because he thought that not being under the influence of painkillers would allow for a proper physical assessment.
The grievor’s explanation does fit with evidence presented. Demerol is a pain killer and the grievor has a prior history of using it after suffering an injury at work. The grievor referred to his prior use of Demerol while at work in his statement to the Company. With respect to his use of Demerol during the period of July 15-17, 2000, the evidence concerning the grievor’s subscriptions for Demerol confirms that he received a prescription for 30 tablets on July 5, 2000, ten days prior to the WCB’s surveillance. That evidence also confirms that it is unlikely that he took Demerol on June 29, 2000, the occasion of his medical examination.
On the evidence presented, I am not satisfied that the activities displayed on the video, as referred to in the WCB Decision and confirmed by the grievor to have been performed, are inconsistent with the use of Demerol. The general information contained in the CPS and Dr. Cutbill’s remarks, without more, falls short of what is necessary to establish that the grievor’s explanation should not be believed. Furthermore, while Dr. England and Dr. Rowat were both of the opinion that the grievor’s abilities as displayed on the videotape were inconsistent with his claims for injury; neither indicated in their respective memorandums that consideration was given as to whether the use of Demerol could have explained the inconsistency. The grievor’s explanation that by using Demerol he was able to perform the activities in question, is not contradicted by the medical evidence presented.
While the circumstances were suspicious and called out for an explanation, I find that the grievor has presented a plausible one. The Company has failed to lead cogent evidence to disprove it. In the circumstances of this case, an independent medical examination may have offered the cogent evidence required by the Company to prove the grievor’s misrepresentation with respect to his physical condition.
I am not satisfied that the grievor willfully attempted to misrepresent his physical condition. It has not been disproved that he was able to perform certain activities when taking Demerol that otherwise would have been difficult to perform. I find that the Company has not established, on the balance of probabilities, that the grievor has committed a fraud.
For the forgoing reasons, I find that the dismissal of the grievor was unwarranted. However, that does not end the matter. The evidence establishes that, at the time of his dismissal, the grievor was taking Demerol on a daily basis and that this appears to have continued given the prescriptions tendered as evidence. I am also satisfied that the Company, knowing that the grievor was under the influence of Demerol, would not have permitted him to work. Thus, an order for reinstatement with full back pay would be inequitable for the evidence discloses that the grievor was not capable of working at the time of his dismissal. Therefore, I refer the matter of remedy back to the parties. It is for the parties to determine whether the grievor’s physical condition is such that he is capable of performing either his regular duties or modified duties and furthermore, to come to an agreement on the matter of back pay, if any.
I retain jurisdiction to resolve any disputes arising out of the implementation of this Award.
It is so awarded.
Dated at the City of Vancouver in the Province of British Columbia this 15th day of February, 2002.
Vincent L. Ready