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Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Employer suspicious of workplace injury pushes return to work too hard Company developed return-to-work plan behind worker's back despite medical assessments that worker was unfit to work BY JEFFREY R. SMITH A BRITISH COLUMBIA employer was too aggressive when it proposed a return- to-work plan for an injured employee and then fired the employee for not agreeing to it, an arbitrator for the Canadian Railway Office of Arbitration and Dispute Resolu- tion has ruled. Geoff Fuoco was a conductor for the Ca- nadian Pacific Railway (CPR) in Revelstoke, B.C., with ten years of service and a clean dis- ciplinary record. On Feb. 17, 2014, Fuoco suffered an in- jury to a bicep while at work. He reported the injury to CPR but didn't seek medical at- tention. However, two days later he told the company his pain was getting worse and he would be getting medical attention. CPR provided Fuoco with a functional abilities form (FAF) for his family physician to fill out. e physician completed the form indicating Fuoco would be off work for two to four weeks. She added Fuoco was "totally unfit for work" and was prescribed Tylenol 3s for the pain. e same day as Fuoco's medical ap- pointment, CPR made the employer's re- port of the injury to WorkSafeBC, the prov- ince's workers' compensation overseer. e company disputed Fuoco's claim for benefits, arguing that he was a bodybuilder whom it suspected was using steroids. As a result, CPR suspected an underlying cause of Fuoco's injury that wasn't work-related. CPR also indicated it would offer Fuoco sedentary, modified duties. In a Feb. 21 meeting, CPR informed Fuoco that the information in its possession indi- cated that he could perform light duties. Fuoco replied that he would like to speak to his physician before agreeing to anything, which he did later that day. e physician once again declared him unfit for work in an FAF and pointed out the prescribed medica- tion negatively affected Fuoco's alertness. Company surprised employee with return-to-work plan CPR's occupational health and safety nurse contacted Fuoco's physician without Fuo- co's knowledge and presented a return-to- work plan with modified duties. e nurse indicated Fuoco had been offered the modi- fied work the day before, but this wasn't in fact the case. Fuoco's physician assumed he had improved and had discussed the modi- fied work with his employer, so she agreed to the plan without speaking to Fuoco. e next day, CPR had a telephone confer- ence with Fuoco to offer him the modified duties under the return-to-work plan. e duties involved an indoor, office job with eight-hour days, five days a week and the plan was set to begin the next day, Feb. 28. Fuoco objected to the plan, telling the com- pany he had physiotherapist appointments on three of the next four days — though one of the appointments was for a massage, not physiotherapy. Management suggested he come to work after his appointment on Feb. 28, but Fuoco said the physiotherapy was strenuous and he wouldn't be capable of per- forming any work afterwards. It was then suggested he come to work on the one day he didn't have an appointment, but Fuoco said he needed a day of rest following treatment. At one point, Fuoco suggested he come into work late that day, but CPR didn't agree. CPR told Fuoco it believed it had provided a suitable return-to-work plan according to his medical restrictions provided by his doc- tor and asked for medical evidence regard- ing his medication, which made him unfit to drive. It also offered to provide transporta- tion to and from work. e company con- cluded by advising it would be informing WorkSafeBC he was refusing to accept rea- sonable work. However, Fuoco's claim for benefits was still approved. CPR was still suspicious about the extent of Fuoco's injury since he had taken two days to seek medical attention. It had also heard rumours of Fuoco going to a local hockey tournament, which led it to check a minor hockey website that showed Fuoco coached a team in the tournament. Given this suspi- cion and Fuoco's reluctance to participate in a return-to-work program, CPR launched video surveillance on him. A March 3 appointment was rescheduled to March 5 — through no fault of Fuoco's. e day of the scheduled appointment, a doctor who had taken over Fuoco's treat- ment completed another FAF stating Fuoco was unfit for any work and reiterating the af- fects of medication on his alertness. On March 11, the doctor completed an FAF that indicated Fuoco was fit for modi- RETURN-TO-WORK on page 11 » CREDIT: SUPHAKSORN THONGWONGBOOT/SHUTTERSTOCK