As one grievor recently learned, exaggerating medical symptoms in order to avoid a return to work can be cause for dismissal. This was the finding of the arbitrator in Fédération des paramédics et des employées et employés des services préhospitaliers du Québec (FPESPQ) and Services préhospitaliers Laurentides-Lanaudière ltée (PDF - available in French only).
The employer operates an ambulance company and employs over 250 paramedics. The grievor, who worked on-call as a paramedic, had less than 18 months of seniority. During an emergency call, in a maneuver to lift a patient who needed critical emergency care, the grievor hurt both her wrists.
After seeing a doctor at the hospital's emergency department, the grievor was diagnosed with a light sprain of the left wrist and a moderate sprain of the right wrist. However, during subsequent medical appointments, the diagnosis evolved to tendinitis and a sprain of both wrists. The worker's doctor later diagnosed a cervical sprain. The grievor was off work for a few months and her treating physician refused to approve all temporary light-work assignments offered, on the basis that she was unable to drive. This was critical because the grievor was required to drive an ambulance as part of her duties. She also lived approximately 30 kilometers from her work.
In the meantime, the grievor's workers' compensation claim for the sprained wrists was allowed.
In various statements to her employer, the grievor claimed that she was unable to carry out any of her normal daily activities without help, such as getting dressed, brushing her hair, eating, drinking, emptying the dishwasher, etc. - all due to the dreadful pain in her arms. At some point, the grievor also claimed she had to wear wrist braces and a cervical collar, that she had to take medication which made her drowsy and that she had been restricted from driving more than 3 or 4 kilometres at a time. Many weeks following the accident, she was still reporting significant pain.
Because of her ever-evolving diagnosis and other inconsistencies, the employer arranged to have the grievor examined by a specialist, as well as followed for a few days by a private investigator.
The specialist concluded that the subjective symptoms and the pain reported by the grievor were incompatible with the clinical findings and that she was able to return to her regular duties.
The surveillance by the private investigator revealed that the grievor had been very active during the two days of surveillance. She had driven (at speeds over the speed limit, while zigzagging from lane to lane) to a hairdresser located some 28 kilometers from her home, had easily cleaned snow off her car, filled up her gas tank, gone grocery shopping (in multiple locations) and carried her grocery bags seemingly without difficulty.
In light of the specialist's medical report and the surveillance report, the employer dismissed the grievor for cause.
Based on the evidence, the arbitrator upheld the dismissal of the grievor in part because the surveillance revealed that she had carried out activities that were incompatible with her alleged medical condition. She obviously was able to drive a car over longer distances, could easily turn her head without restriction, and could grasp and lift various objects without apparent difficulty. Nowhere in the surveillance was she seen wearing a cervical collar or wrist braces.
According to the arbitrator, the grievor had voluntarily and knowingly lied about her medical condition to both her employer and the specialist. Moreover, during the arbitration hearing, the grievor refused to admit to her misconduct and failed to show any remorse in relation to her actions.
The arbitrator also considered that the position of paramedic carries a high level of responsibility. Paramedics are required to work with little supervision and enjoy great autonomy in their actions. An employer must be able to have full trust in an employee of this type. Here, the grievor's conduct broke that trust and the employer was consequently justified in terminating her employment.
Lessons to be Learned
Employers are entitled to expect that employees who are absent from work for reason of illness or workplace accident will be honest and transparent about their condition, its evolution and their ability to carry out light or restricted duties. Lying or exaggerating symptoms will be cause for discipline, and perhaps even dismissal, in appropriate cases.
However, before dismissing an employee who seems to have exaggerated his or her symptoms in order to delay returning to work, an employer must consider all relevant circumstances, including the employee's position, seniority and whether or not the employee has fraudulently received benefits as a result of his or her exaggerations or lies.