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Canadian HR Reporter, 2019 Canadian Employment Law Today | 3 Cases and Trends Injured worker dances back into job after dismissal for dishonesty Employer believed videos of worker dancing weren't compatible with physical restrictions in return to work, but work duties had different demands BY JEFFREY R. SMITH A MANITOBA worker who was filmed dancing while still reporting pain and diffi- culty returning to work after an injury was not being dishonest and should get her job back, an arbitrator has ruled. Roshni Tailor worked as a sonographer at the Winnipeg Health Sciences Centre (HSC), performing ultrasound scans on internal body structures and producing reports of the scans for radiologists. Hired in September 2010, she performed scans on emergency patients, inpatients, and re- ferrals. Scans could take between 30 and 60 minutes, so Tailor performed between seven and 10 scans per shift. Repetitive strain injuries were fairly common for sonographers because they had to apply varying amounts of pressure on a patient's body with probes as well as type in the information for the report on a keyboard. Because of this risk, managers and charge technicians tried to schedule a variety of scans for each sonographer over the course of a shift. Over the years, Tailor suffered from multiple repetitive strain in- juries to her wrists and elbow. After a pe- riod of recovery, she was able to return to work after each injury. On Jan. 14, 2017, Tailor was performing a cultural dance routine while off duty when she fell and broke her wrist. She was unable to work because of the injury and received short-term disability benefits until the end of March. In April 10, Tailor was scheduled to return to work on a graduated basis with several restrictions including no "pushing, pulling, gripping (or grasping) with right upper extremities. However, with her restrictions Tailor wasn't able to perform her sonographer du- ties or any role in the diagnostic imaging department. HSC's disability case manage- ment co-ordinator consulted the human resources department to see if there were other duties, but was unsuccessful. A few weeks later, Tailor's restrictions were updated to indicate she was "unable to do duties as an ultrasound sonographer, may return to sedentary work." HSC was still unable to accommodate Tailor's re- strictions, so it moved her to long-term disability (LTD) benefits administered by its insurer. Worker reported continuing pain Tailor began a reconditioning program in September 2017, but had to stop when she began experiencing neck and back pain. HSC commissioned an independent medi- cal examination (IME), which found Tailor should participate in a lighter recondition- ing program. By this time Tailor had re- sumed various cultural activities including cultural dancing and running, which the health care professionals in her program knew about didn't seem to be concerned. Tailor returned to work in February 2018, starting started with two days per week for four hours per day, which gradually in- creased over a few weeks to four days per week at four hours per day. On Feb. 26, Tailor told her manager that she was experiencing pain in her wrist that affected the functions of her hands. She also reported pain in her neck and back. As a re- sult, HSC cut back her shifts to two per week and the insurer recommended Tailor only perform "shorter/easier scans" with a break between them. Another graduated return-to-work plan was devised for April and early May that would see her working six-hour days, four days per week by early May, and full duties by the end of May. In mid-April, HSC became aware of vid- eos online that depicted Tailor participating in cultural dancing at events on March 14, March 31, and April 16. HSC believed the physical activity Tailor was exhibiting in the videos wasn't consistent with her work restrictions and the pain from which she complained she was suffering. e insurer contacted Tailor on May 7 and advised it was discontinuing her ben- efits because of the videos, which indicated to the insurer that she was no longer totally disabled. Tailor advised that she had been medically cleared to dance because she had told the medical professionals in her recon- ditioning that she had resumed dancing and they hadn't advised her to stop, but the insurer put her graduated return-to-work program on hold and requested an updated form on her restrictions. Employer investigated videos On May 16, HSC held a return-to-work meeting and informed Tailor it would in- vestigate the videos. She was to remain off work pending the investigation's outcome. ough Tailor wasn't officially suspended, she wasn't paid while she was off work — the insurer had been paying her wages as part of the return-to-work program. HSC scheduled a meeting on May 30, which it called a "follow up" to the May 16 meeting. However, HSC asked if there was any new information or medical support for Tailor's dancing and when Tailor didn't provide anything, it gave her a termination letter. HSC said it would be difficult to trust Tailor going forward because of the dis- crepancies between the videos and Tailor's restrictions. e arbitrator found that the cultural dancing Tailor performed in the videos demonstrated the actions "of a person who exhibits no visible pain or impairment" and it made sense that HSC and its insurer were concerned about it since she was progress- ing slowly in her return-to-work program. e dance routines were "very physical and involve full body and arm movements," and a comparison of videos before Tailor's in- jury showed little change to accommodate her restrictions, said the arbitrator. However, the arbitrator noted that the actions involved in the dancing and the actions involved in Tailor's job as a sonog- rapher were not necessarily compatible when it came to causing pain. Sonography involved applying sustained pressure for 30 to 45 minutes, while the dancing had quick movements with no pressure. "While I agree that the dance perfor- mances present a much different picture to a non-medically trained individual than the reports of pain continuing after Ms. Tailor's shifts at work I do not feel able to conclude without medical evidence that there is the required degree of inconsistency to shift the onus to her," said the arbitrator. e arbitrator also found that while Tailor told those running her recondition- ing program about the resumption of her dancing and they didn't tell her to stop, this didn't constitute medical clearance. How- ever, she wasn't being dishonest when she characterized it as that, said the arbitrator. e arbitrator determined Tailor was not dishonest with HSC regarding her restric- tions and return-to-work efforts. HSC was ordered to reinstate her with "full back pay." For more information see: • Winnipeg Regional Health Authority and MAHCP (R.T.)., Re, 2018 CarswellMan 781 (Man. Arb.).

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