Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2017 News | March 2017 | CSR Old injury comes back to haunt worker Employment terminated after employer learns of previous injury not disclosed on new-hire medical history questionnaire BY JEFFREY R. SMITH AN ARBITRATOR has upheld the termination of an Ontario railway worker who misrepre- sented his medical history on a health questionnaire he filled out when he was hired. Yves Chouinard, 30, was hired by Algoma Central Rail- way, a passenger railway in northern Ontario, in June 2012 to be a track labourer. As part of the hiring process, Choui- nard was required to complete a health questionnaire before he started work. The health questionnaire featured ques- tions about the new employee's health so Algoma could identify physical or medical issues that could cause the employee to de- velop medical limitations in the line of work. The health questionnaire in- cluded questions on whether the employee had any previous claims for disability or work- ers' compensation, functional limitations, muscle problems, or joint diseases. Chouinard an- swered "no" to all of these. The questionnaire included a warn- ing that any false information or failure to declare a past or pres- ent medical condition would be "subject to action …up to and including dismissal." One year before he joined the Algoma Central Railway, Chouinard worked for a sub- contractor in a mine. One day, he experienced pain in his up- per back and neck, though he didn't file a workers' compensa- tion claim. He took two weeks off — which was part of a shift rotation in which he worked 14 days on and then had 14 days off. The pain eventually cleared up and the worker didn't experience any serious problems, though he sought chiropractic treatment. Over the first three years of his employment with Algoma, Chouinard received a three-day suspension for not filling out a crane log as required by the drivers manual, and two written reprimands — one for the same infraction and another for not backing up his foreman. Previous injury revealed In February 2016, Chouinard hurt his shoulder while swing- ing a pick axe to break up ice on a guardrail at the rail yard. After reporting the injury to his su- pervisor, he completed a report of injury form for the Ontario Workers' Compensation Board. He indicated on the form that he had a prior related workers' compensation claim and the shoulder first caused him trou- ble "with my previous claim." Algoma investigated the in- jury, including Chouinard's health questionnaire that he had filled out after being hired. In an interview, Chouinard said he had previously injured his shoulder working in the mine in 2011 and there was a workers' compensation claim. He also said he had sought treatment for the injury and had taken two weeks off. Algoma determined that Ch- ouinard had misrepresented his medical history, as he had not re- vealed the back and neck injury he suffered while working at the mine. It terminated his employ- ment for giving false informa- tion in a way that amounted to a breach of trust. The union challenged the dis- missal, arguing Chouinard did not in fact have a previous dis- ability or workers' compensation claim and he was in good health when he filled out the health Credit: Shutterstock/Chinnapong Past > pg. 8 Worker indicated on injury form he had a prior related compensation claim and injury, while health questionnaire indicated no previous claims.

• Cover