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Injured employee's reckless behaviour outside of work was reckless, not dishonest: Arbitrator
AN INJURED Ontario worker who was dismissed for dishonesty after being observed performing activities beyond his stated medical restrictions outside of work has been reinstated.
Rick Adamo, 39, was a shipper/loader for Energex Tube, a manufacturer of steel tubes and pipes for oil and gas pipelines in Welland, Ont. He began his employment with Energex in 2001 and in 2006 he began experiencing problems with his lower back. Over the next few years, Adamo filed five claims with Ontario's Workplace Safety and Insurance Board (WSIB) relating to back injuries he sustained at work that kept him from working for a period of time.
On Feb. 13, 2013, Adamo hurt his back while moving a piece of lumber at work. He left a voice message informing his supervisor about it, though he didn't complete an accident report, which he had done for his previous injuries and was required practice.
Adamo was told to stay off work for one week and a medical note saying as much was sent to Energex. More doctor visits followed over the next few weeks and Adamo wasn't ready to come back. Eventually, he was able to return to work one month after the injury with modified duties.
When Adamo returned, his doctor completed a functional abilities form (FAF) which restricted him to walking no more than 100 metres at a time, standing for no more than 15 to 30 minutes, sitting for no more than 15 minutes, no lifting, no ladder climbing, no bending or twisting and no pushing or pulling. These restrictions were initially intended to apply for two weeks. As for whether Adamo could push these limitations if he began feeling better, the doctor advised him to "let pain be his guide."
When Adamo met with his supervisors to discuss his return to work, he said he would do whatever work they wanted him to do as long as it complied with the restrictions listed by his doctor on the FAF. He was assigned miscellaneous tasks taken from various other employees' work pulled together into one job.
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