SHP 692

AWARD OF THE ARBITRATOR

This arbitration concerns the assessment of forty-five demerits against Car Mechanic E. Vanderheyden of the Brampton Intermodal Terminal (BIT). The Company maintains that the grievor failed to properly report a workplace accident and that he provided false information in relation to his WSIB claim in that he failed to report a pre-existing medical condition. The nature of the dispute is reflected in the Dispute and Joint Statement of Fact and Issue filed by the parties before the Arbitrator, which reads as follows:

DISPUTE:

The discipline assessed Car Mechanic E. Vanderheyden following an investigation of a reported workplace accident and injury.

JOINT STATEMENT OF FACT AND ISSUE:

On September 13, car Mechanic E. Vanderheyden reported a workplace accident and injury that occurred on September 10, 2011.

On September 24, 2011, the Company conducted an investigation concerning the late reporting and irregularities in regard to the circumstances surrounding the reported injury.

Following the investigation, the Company assessed the grievor 45 demerits for fraudulent and late submission of a workplace injury to his back that allegedly occurred on September 10, 2011 and his failure to report a pre-existing medical condition associated with his back.

The Union contends that the discipline assessed was egregious and unwarranted, the charge of fraud is made without evidence or credibility on the part of the Company, he was disciplined when he was held out of service pending an investigation and the Canada Labour Code was violated as a result of the employee reporting a workplace injury.

The Union requested the discipline be expunged and that a sum of $5,000 be paid to him on account of his unjust and egregious treatment.

The Company disagrees with the Union’s contentions and has declined the Union’s request.

The record before the Arbitrator confirms that on September 10, 2011 the grievor was involved in painting a forklift at or near the south side east end of the Mechanical Building at the BIT. As the work was somewhat above the level of his head, he utilized a flexible ladder, placing it into the position of a scaffold. That involved him working at a height of some three feet from the ground. As he was concluding his task, according to the grievor’s account, which I accept, he lost his balance and fell from the ladder surface he was standing on with something of a twisting motion, landing on his feet. At the time of the incident the grievor felt no pain or injury.

According to Mr. Vanderheyden’s account, it was only after he had completed his tour of duty, as he was driving home for his regular two days off, that he first felt a twinge of pain in the base of his back. It would seem that that pain aggravated itself and became more pronounced over the weekend. The grievor’s first day back at work was September 13, 2011. As his tour of duty commenced later in the day, he visited his doctor. As it happened he had a pre-arranged appointment because he had previously undergone an MRI on September 3, 2011 with respect to a condition in his lower back. It appears that he was advised on September 13 that he had a herniated disc at L-4/5. When his doctor examined him he determined that he did not have a full range of motion as compared with his range of motion when he was examined on July 28, 2011.

The grievor’s physician provided him with a note for the Company indicating that he should be placed on modified duties. When Mr. Vanderheyden appeared at work he provided the doctor’s note and advised Sr. Mechanical Supervisor Frank Lafarciola of the incident which had occurred at the end of his last tour of duty, before his weekend break. On the same day the grievor filled out and filed a WSIB claim for his injury resulting from the fall from the ladder. That document, known as the Form 6 Worker’s Report of Injury, includes the following question:

Have you hurt this area(s) of your body before?

To the above question the grievor checked the box which says “no”. His Form 6 also includes the following partial narrative: “No supervisor on duty. Didn’t feel hurt until I left work.”

Following an investigation the Company concluded that the grievor failed to exercise proper care while working on the elevated ladder/scaffold, failed to report an accident to a Company supervisor as required by Company policy and fraudulently misrepresented or concealed that he had a pre-existing back condition. On that basis he was assessed ten demerits for his lack of care in working on the ladder and forty-five demerits for “your fraudulent and late submission of a workplace injury to your back that allegedly occurred on September 10, 2011, and your failure to report a pre-existing medical condition associated with your back.”

The material before me confirms that although the Company strenuously opposed the grievor’s WSIB claim, it was eventually successful. The claim does not appear to have been substantial in terms of the remedy obtained, involving the grievor’s modified work conditions and physiotherapy. Significantly, the ruling of the WSIB specifically noted that the grievor’s disc herniation diagnosis was not caused by the fall he sustained on September 10, 2011. That, significantly, protects the Company from any subsequent claims in relation to that disc herniation.

The issue before the Arbitrator is whether the Company had just cause for the discipline which it assessed. I am satisfied that it did not. Firstly, it is not unreasonable to conclude that the event which occurred when the grievor fell some three feet from the ladder/scaffold he was working on, landing on his feet, was in fact a workplace accident. Such a fall or stumble is likely not uncommon in any workplace and, on the moment it happened, the grievor felt no injury or ill effects. Whether an event does or does not constitute a “workplace accident” is obviously a gray area requiring an examination of the facts on a case by case basis. I do not consider that it was unreasonable for the grievor not to consider that he had been involved in a workplace accident when the event occurred. He simply descended three feet on to the ground from a horizontal ladder, landing on his feet and feeling no injury or other adverse effect. Additionally, there were no supervisors in the workplace at the late hour when the incident occurred. I am not inclined to conclude that the grievor’s decision not to call a Company supervisor at home to report what had occurred was an egregious violation of Company policy.

As the evidence indicate, it is only after he left work, during his drive home, that the grievor began to feel pain in his lower back. It is only at his subsequent medical appointment of September 13, 2011, after his weekend off, that Mr. Vanderheyden was examined by his doctor and found to have incurred a reduction in his full range of motion. On that basis he obtained a doctor’s note and reported what had occurred to Supervisor Lafarciola upon his return to work late on the 13th.

In my view, to that point, the grievor had committed no infraction which could merit discipline. When he was at work on the 10th, while he may have stumbled off his working platform, he had no reason to believe that he had suffered an injury or that a workplace accident had occurred. That possibility only became evident after he left work, when he first felt some twinges of pain on his drive home and felt greater pain over the weekend. As events unfolded, it was only on the morning of the 13th, upon his visit to his doctor, that it was confirmed to him that he had a reduced range of motion, as compared with his last examination, and that that change was caused by his stumble while at work on September 10th.

Can it be said that the grievor knowingly and deliberately concealed a pre-existing medical condition from the WSIB? Again, I believe that that question must be answered in the negative, on the specific facts of this case. I consider it not insignificant that the form which the grievor was required to fill out does not expressly ask whether he suffered from a pre-condition. Rather, the question found on the form asks: “Have you ever hurt this area(s) of your body before?” It appears to be common ground that Mr. Vanderheyden had never before suffered an accident which knowingly caused damage to his lower back. Further, it was only on the same day that was advised of the result of his MRI and learned that he had a herniated disc at L-4/5. The cause of that condition, which appears to have existed for some time, is unknown. In that setting, I do not consider it implausible that an individual might feel that he had never “hurt” his back previously. A reference to the Webster’s Ninth New Collegiate Dictionary includes the following under the definition of the word “hurt”: 1: a cause of injury or damage: BLOW 2a; . a bodily injury or wound.

In the Arbitrator’s view there is arguably an important distinction between hurting oneself by reason of a blow or accident and suffering degeneration in some part of the body. For example, in normal parlance an individual who suffers an eye cataract would not likely be heard to say “I hurt my eye.” Whatever the intention of the WSIB form which was filled out by the grievor, it would not be unreasonable to consider the question “Have you hurt this area(s) of your body before?” as asking whether he had suffered any previous accident or blow to his lower back.

It is clear that the WSIB did not consider that the grievor had attempted to mislead it. A letter dated November 9, 2011 sent to the Company from the WSIB’s Eligibility Adjudicator, Claudette Gayle-Morin states, in part, as follows:

In your letter you indicated that Mr. Vanderheyden’s workplace accident of September 10, 2011 was not witnessed, there was a delay in the onset of his low back pain and that he did not report his injury or seek medical attention until September 13, 2011. You stated that Mr. Vanderheyden submitted a medical note with a diagnosis of disc herniation which he has falsely presented as being a result of his workplace accident of September 10, 2011 and that there is no evidence to support that he sustained a personal injury by accident on September 10, 2011. You further indicated that I relied on WSIB policy # 10-01-13 to render the final decision, however, due to inconsistencies in Mr. Vanderheyden’s story, the balance of evidence is not equal and the preponderance of the medical evidence supports a pre-existing condition.

After a thorough review of Mr. Vanderheyden’s claim file, I note that there were no witnesses to the workplace accident of September 10, 2011. I also note that the worker reported that his incident took place close to the end of the work day and that he started experiencing pain in his low back on his drive home from work on September 10, 2011. He advised that his low back pain increased over the course of the following 2 days while he was scheduled off work. Mr. Vanderheyden indicated that he was not symptomatic prior to the accident at work and that he did nothing else that would have caused his low back pain. Noting the proximity of the onset of Mr. Vanderheyden’s low back pain to the occurrence of his workplace accident, I find it reasonable to accept that his low back pain resulted from his reported accident of September 10, 2011.

Mr. Vanderheyden sought medical attention and reported his injury to his supervisor, Frank Laforciola upon his return to work for his next scheduled shift on September 13, 2011. As indicated in my decision letter dated October 4, 2011, I have accepted Mr. Vanderheyden’s rationale and have deemed that his 3 day delay in reporting and seeking medical attention is reasonable.

Mr. Vanderheyden admitted to have low back pain in the past. He saw his physician on September 13, 2011 for a pre-scheduled visit to discuss his MRI results of September 3, 2011. Those results provided a diagnosis of disc herniation. During this visit he also reported his workplace accident of September 10, 2011. Medical information has been received to the claim file that confirms that Mr. Vanderheyden was diagnosed with a low back strain resulting from his workplace accident of September 10, 2011. Consequently, his claim was allowed specifically for a low back strain as this diagnosis is compatible with his reported workplace accident.

Mr. Vanderheyden’s report of his workplace accident of September 10, 2011 was accepted as fact and his claim was adjudicated on the merits and justice of the case as per policy WSIB # 11-01-03. Proof of accident was established in this claim noting that Mr. Vanderheyden identified a specific accident at work that caused his low back injury on September 10, 2011; he reported his injury to his supervisor and sought medical attention on September 13, 20111. Additionally, his diagnosis of low back strain was deemed compatible with the reported accident history. The Benefit of Doubt policy (WSIB # 11-01-13) was not applied in rendering the initial entitlement decision in Mr. Vanderheyden’s claim as the evidence was not deemed equal. I assured you in my letter dated October 4, 2011, that Mr. Vanderheyden’s claim was accepted solely for the diagnosis of low back strain and that the disc herniation diagnosis is not compatible with the reported accident history and as such there would be no entitlement for his disc herniation in this claim.

The Arbitrator is inclined to agree with the WSIB’s officer. As stressed by the Union’s representative, fraud is a serious allegation which must generally be substantiated by clear and compelling evidence. Bearing in mind that the Company bears the burden of proof, I must conclude that that standard of evidence is clearly not discharged on the facts before me. While it may be unfortunate that his family physician chose to use the phrase that he had been seen “for a WSIB low back injury with L-4/5 disc herniation”, that was clearly not a document of the grievor’s drafting, nor was there any serious effort on the part of the grievor or his physician to ever suggest that the incident of September 10, 2011 caused the grievor’s condition of disc herniation nor that the disc herniation caused the lower back strain which occurred. While that doctor’s note may have understandably set off alarm bells for the employer’s WSIB administrators, a close examination of the evidence confirms to my satisfaction that there was never any attempt on the part of the grievor to conceal his pre-existing condition or to deceive either the employer or the WSIB.

On the whole, therefore, I am compelled to the conclusion that the Company did not have any basis to assess discipline against Mr. Vanderheyden. His not reporting his fall from the ladder during the tour of duty when it occurred is not surprising, as there was no apparent consequence from what can fairly be characterized as little more than a stumble, and there were no supervisors then on duty. He did report it following his weekend off, as the first matter of business when he returned to work. I can see no serious violation of his obligations to the employer in what occurred. Nor can I find that he engaged in any deception of the Company or of the WSIB.

For the foregoing reasons the grievance is allowed. The Arbitrator directs that the forty-five demerits be expunged from the grievor’s record. I do not, however, consider the instant case to be one that is appropriate for awarding punitive damages, as requested by the Union. There is no medical or other professional evidence before me to suggest that the grievor suffered any serious stress, depression or other adverse physical or emotional effect from what occurred. That aspect of the Union’s request for a remedy is therefore denied.

I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this award.

Signed at Ottawa, this 18th day of May, 2011

__________________________________

MICHEL G. PICHER

ARBITRATOR