Following the hearing, the Claimant was dismissed from service on August 9, 2004.
The record clearly indicates that, on June 22, 2004, the Claimant was holding an adjustable wrench on a nut that was being tightened by another employee with an impact gun. As he later reported in an injury report, the Claimant "felt a sharp pain in my lower back. [I] heard a pop and had to let go of wrench". His fellow employees at the scene were made aware of this and inquired if he required medical care. The Claimant declined medical treatment.
On June 23, 2004, allegedly on intensification of his pain and impaired movement, the Claimant advised his Supervisor, completed a injury report form, and sought treatment from his own physician. As a result, he did not report for work commencing June 23 and for an extended period thereafter.
Both the notice leading to the investigative hearing and the letter of dismissal included two separate charges: a) the Claimant's alleged "dishonesty" in his activity following June 22, and b) his failure to "immediately" report the injury. Each of these require separate review:
There are, of course, numerous instances in the course of work performance where an incident occurs involving failure to work safely and/or an unanticipated physical act causing momentary pain or strain. In instances where there is no further effect on the employee, it is questionable whether an "injury" occurred, at least to the extent of requiring an injury report. The Organization contends that such is the situation which occurred on June 22 and that no "injury" was immediately reportable. When the Claimant later found himself in continuing pain, the Organization points out that the Claimant immediately advised his Supervisor and completed the appropriate report. The Board finds, however, that this does not accurately
remainder of the shift. The Board concludes, therefore, that the claimant was in violation of Safety Rule 4000, although this was mitigated by his advising his Supervisor prior to reporting for duty the next day. However, the short delay in reporting the incident, in and of itself, would not be cause for dismissal from service.
The Board is limited to reviewing the precise offense of which the Claimant was charged, that is, dishonesty. The first sentence of this charge, quoted above, is somewhat unclear. The Board accepts it to mean that the Claimant "falsely asserted" that the incident of June 22 prevented him "from working your assigned position". The Claimant is also accused of "pursuing a fraudulent injury claim with the Carrier".
Lacking entirely is any charge of working in an unsafe manner (although this is mentioned in the Carrier's analysis of the event). There is also no contradiction to the Claimant's description of what occurred as he stated on the June 23 injury report. The issue is limited to the medical conclusion (by the Claimant's own physician) as contrasted with observations made of the Claimant's physical activity and ability.
In the June 23 injury report, the Claimant described his injury as follows:
The June 23, 2004 report of the Claimants physician, a member of Hudson Valley Orthopaedic Associates, states in pertinent part as follows:
With these findings, the physician classified the Claimant's "disability status" as "Totally disabled" (to be discussed further, below). The report predicted continuance of "totally disabled" until "7/15/04??", with return to full duty on August 1.
A further report from the same physician on July 16 continued the "totally disabled" classification, with a predicted date of return to work on September 15. The findings included the following:
when held for extended periods. In the literal sense of the phrase, the Claimant was not "totally disabled". The Carrier, in fact, did not believe this to be true in that the Claimant was offered the voluntary opportunity to return to duty in some sedentary capacity other than his regularly assigned position. (The Claimant declined this offer.)
The Board notes that, as to fitness classification, the physician is directed to check one of four boxes as to "disability status". The first is "Totally disabled - defined by NYS Worker's Compensation as unable to perform any work". The other three are various degrees of "Partially disabled". The Board, of course, has no means to determine why the physician chose the "Totally disabled" category. Clearly, however, it is recognized as a medical determination in relation to the work involved (in this instance, employment with the Carrier). one aspect, however, is certain: It was not the Claimant who made the determination. His degree of impairment is found in his injury report statement, in his responses to the physician, and the specific medical analysis as quoted above.
Upon receipt of the initial "totally disabled" report from the physician, the Carrier determined to place the Claimant under surveillance by a professional service. The Claimant was observed for portions of eight days between June 24 and July 8 and for four days between July 10 and July 15. These observations were made as the Claimant was driving his personal vehicle, performing various errands, repairing a car door lock and, most extensively, being
present at a pizza restaurant where the Claimant had been under a construction contract for restoration of the building.
The resulting video tapes were shown at the investigative hearing and included as evidence therein. With consent of the other two members of the Board, the Neutral Member reviewed these tapes concurrently with studying the hearing transcript and the surveillance written reports.
The Carrier accuses the Claimant of "dishonesty", apparently based on the range of his activities at a time he was supposedly "totally disabled". Specifically, the Carrier states the Claimant "is guilty of dishonesty when he falsely asserted a debilitating injury, which was inconsistent with his physical activities".
The Board finds little or no support for the Carrier's accusation of "dishonesty", for the following reasons:
1. There is no convincing demonstration that the Claimant simply continued his construction work at the restaurant after the June 22 incident. Best evidence of this is the introductory testimony by the surveillance expert, as follows:
This appears to conform with the Claimant's testimony that, immediately after June 22, he informed the restaurant owner that he could not continue his construction work and would get someone else to take over. The video tapes, as confirmed in the testimony, above, show that the Claimant continued to be present to "oversee" the physical work of others.
2. The video tapes clearly show the activity of an individual who is not "totally disabled" (if the phrase is taken literally). On the other hand, the Claimant's movements -- including some brief lifting, driving his personal vehicle, momentarily demonstrating a construction task at the restaurant work site -- are not incompatible with the Claimant's account of his condition to his physician, as quoted above.
3. Although such was not explained to the Board, it is apparently agreed that the Claimant was not obligated to accept a sedentary assignment of work. There was no indication that the refusal was because he felt himself unable to do the work; rather, he apparently simply elected to decline.
4. It is a matter of law whether or not the claimant's condition warranted receipt of compensation benefits or whether or not the physician's finding of "total disability" could be challenged by contrary medical judgment. In any event, such classification by the physician cannot be charged against the Claimant as an act of "dishonesty".
The record shows no support for the charge of "dishonesty". The Claimant's injury report was not challenged as to accuracy. He made no claim to his physician of inability to move about and function within his capacity for pain. The physician prescribed no specific limitations as to his activity (while at the same time finding him unable to "work").
It is possible, as argued by the organization, that the Claimant may have believed any pain resulting from the June 22 incident was only momentary and thus not an "injury"; when this proved not to be the case, the injury was promptly reported. As stated above, however, this judgment was not for the Claimant to make. He violated the rule requiring "immediate" reporting of an accident. For this, corrective discipline is warranted, but termination of employment is an overly severe penalty.
As a result, the Board finds the Carrier's action in dismissing the Claimant from service was disproportionate and unduly harsh. The Award will direct that the Claimant be restored to duty with seniority unimpaired. The Award does not include back or retroactive benefits on two bases: first, the Board is unaware when or if the Claimant has been found physically fit for duty; second, even if physically fit, the remaining period shall serve as a disciplinary suspension in reference to violation of General Rule 400.