'Employers are entitled to clear, current, and credible evidence of a medical prognosis': lawyer
A British Columbia arbitrator has upheld the termination of a worker for being dishonest about his claims of disability and a work-related injury.
“Many employers are cynical about what a medical professional will write in a medical note, as there are examples of people being dishonest about things like limitations and disabilities,” says Mike Hamata, a labour and employment lawyer at Roper Greyell in Vancouver.
“It's important for employers to look at evidence of medical limitations objectively and see if it passes the credibility test and, if it doesn't, gradually escalate the requests for medical information until the employer is satisfied that it’s getting clear, current, and credible information.”
The worker was employed with Brewers Distributors (BD), a beer distributor in Western Canada, in BC since about 2003. He usually worked the graveyard shift.
In September 2021, the worker told BD that he had a medical condition that restricted him to graveyard shifts of no longer than six-and-a-half hours – regular shift length was nine hours. He said that his doctor and other health-care providers supported his claim.
BD initially accommodated the worker with shorter graveyard shifts and eventually sent a workplace accommodation medical questionnaire to the worker’s doctor on Sept. 15, 2022, which indicated that the worker’s shorter shifts should be maintained because “excessively long night shifts have an adverse effect on his sleep/work cycle and his medical condition.” The doctor stated that the worker’s restrictions were expected to last for another year.
Concerns about medical information
BD had concerns about the information being provided by the worker and his “unique and specific medical restriction.” It asked the worker to participate in a wellness program by its third-party insurance provider, but the worker declined.
“Employers are entitled to clear, current, and credible evidence of a medical prognosis, which is usually limited to limitations specific to the job,” says Hamata. “They're not entitled to a diagnosis because that's personal medical information and employers have no training to interpret a diagnosis.”
While employers can choose to provide informal accommodation, there’s a risk, according to Hamata.
“Employers also have obligations under occupational health and safety legislation that require them to ensure that it's safe for an employee to be at work,” he says. “So if there's any doubt in whether the worker is candidly describing their limitations, it would be duly diligent to at least get a note from a physician.”
On Dec. 7, BD informed the worker that it would no longer schedule the worker for graveyard shifts, as he had indicated that he could work 9.5-hour shifts in the day or afternoon.
Work-related injury
However, whenever the worker was assigned day or afternoon shifts, he called in sick. The union advised BD to only schedule the worker for 6.5-hour graveyard shifts, but BD disagreed. On Jan. 3, he was inadvertently scheduled for a graveyard shift, and at a meeting at the start of the shift the worker confirmed his restriction. The company allowed him to work the shift since he was already there, but the worker reported that he injured his back emptying a garbage can into a compactor a couple of hours into the shift and went home early. There were no witnesses to the incident.
The next morning, BD’s employee relations advisor called the worker, who said his back was fine and he had just “tweaked” it. However, he later said that he was disabled to the point of not being able to get out of bed.
On Jan. 5, the worker reiterated that he couldn’t get out of bed. BD later emailed him a list of optional modified light duties for him to review with his doctor. However, the worker filed a workers’ compensation claim from the injury, with a report from his physiotherapist stating that he had “difficulty maintaining any particular position like sitting, standing, walking” and could start modified duties on Jan. 30. The physiotherapist later provided a physical capacities evaluation that indicated the worker was totally disabled and should avoid any bending, lifting, pulling, pushing, and overhead activities for four weeks, at which point he would be reassessed.
The worker’s compensation claim was accepted, with acknowledgement that the worker described needing help from his family for activities of daily living.
BD was surprised, since the incident was initially considered minor and it happened just as the worker had been told he would no longer be accommodated with shorter graveyard shifts. The company hired a private investigator to conduct video surveillance of the worker on Feb. 3.
Video surveillance
The investigator provided video footage of the worker attending an elementary school basketball practice, during which he walked around and bounced and passed a basketball. Later he was seen getting in and out of his vehicle several times and walking without any problems. All of these activities exceeded the limitations that had been indicated by the worker’s doctor and seemed to be within the requirements of the modified duties that had been offered by BD.
“When you have a solid factual foundation to believe that employee is being dishonest about a disability or other sort of medical limitations, then often a private investigator can be justified, because there aren't many other good ways to determine if someone is being deceitful,” says Hamata. “But employers should be cautious about jumping straight to surveillance just because they have a suspicion - you want to be able to explain to an arbitrator why you took that step because a hunch isn’t enough.”
BD determined that the worker was being dishonest about his disability claim and met with him on Feb. 22. The worker confirmed that he was “just doing whatever my doctor is recommending.”
BD showed the worker pictures from the video surveillance footage and the worker maintained that he was performing within his medical restrictions. However, he acknowledged that he could have performed modified light duties by the end of January.
Termination for dishonesty
BD gave the worker a termination letter stating that he claimed to be totally disabled from work due to injury but he was seen “undertaking normal activities of daily living.” This was dishonesty warranting termination, the company said.
The union grieved the dismissal, claiming that the worker didn’t commit any misconduct and he was following the directions and recommendations of his health-care providers.
BD argued that the worker’s medical restrictions were based on his self-reported symptoms, which it suggested were fabricated to secure a more favourable work schedule. The surveillance footage and subsequent investigation revealed that the worker wasn’t honest about his limitations, the company said.
The arbitrator noted that the evidence, including the surveillance video, contradicted the claims made by the worker and his health-care providers. The video depicted him exceeding the restrictions outlined in the medical forms he had submitted to BD and his explanation for his actions, which relied heavily on following medical advice, wasn’t credible without further support, such as clinical records or testimony from the health-care providers. In addition, there was no evidence that the worker’s health-care providers were aware of the worker’s physical status at the time of the video surveillance and the worker remained “adamant that he had done nothing wrong because, as he says, at all times he was following the advice of his physicians,” said the arbitrator.
The video surveillance played an important role in proving the worker’s dishonesty, but employers should be careful about such evidence, according to Hamata.
“Employers will often get excited and think about [video footage] as a smoking gun, but you have to make sure that just because the worker is doing certain things in their regular life, that it’s actually inconsistent with their tasks at work,” he says. “Sometimes that's not the case and the arbitrator will say, ‘The worker is doing some things, but those things are sufficiently different than what they do at work that I'm not convinced they're being dishonest.’”
Serious misconduct
The arbitrator found that the worker’s initial injury was suspicious and his actions constituted serious misconduct, particularly the misrepresentation of his physical capabilities and his medical condition. The arbitrator concluded that the worker’s behaviour undermined the essential trust required in the employment relationship and that dismissal wasn’t an excessive disciplinary response.
In upholding the dismissal, the arbitrator acknowledged the worker’s 20-year tenure with BD but determined that the severity of the misconduct outweighed any mitigating factors. The grievance was dismissed.
This case is a good example of the fear that many employers have about medical information, says Hamata.
“The fear is that health-care professionals are often just being advocates for their patients, despite their professional obligations,” he says. “Here it sounds like the health-care professionals just provided correspondence to the employer that was in line with what the worker asked them to provide and it didn't turn out to be accurate.”
