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Expanded Case Details

Riverview Hospital (2011), 214 L.A.C. (4th) 113 (Burke)

In Riverview Hospital (2011), 214 L.A.C. (4th) 113 (Burke), the grievor had an extensive history of addiction to drugs and alcohol. He claimed that these addictions, which the employer had accommodated, commenced while he was serving in the Russian military in 1989. He claimed that he had ceased to use mood-altering substances approximately 15 months prior to his termination.

The employee’s termination arose from his having forced a disruptive patient out of a van filled with psychiatric patients who were on a day outing. The patient was left on her own by the roadside. Shortly before the van returned to the hospital, the employer received a telephone call from the RCMP, advising that they had a woman who claimed that she was a patient on the ward and that she had been thrown off the van. The employee subsequently misrepresented the event in his patient charting, stating that the patient had left the van on her own accord and that he and the other patients had been unable to persuade her to return. He advised that he had no remorse for his actions. In subsequent conversations with other employees, the employee appeared to treat the matter as a “joke”.

The employer first learned that the union was asserting a medical explanation for the employee’s behaviour at the commencement of the initial hearing, some 15 months after the termination. The union sought and was granted time to file a medical report. The subsequent report opined that the employee’s actions were due to a post-traumatic stress disorder. The employer rejected the opinion, in that it was based on only one interview with the employee and that two pieces of information that had been considered by the psychiatrist were allegedly incorrect.

Subsequent to the employee’s termination (but prior to the commencement of the initial hearing), an inquiry committee of the College of Registered Nurses of British Columbia approved an amendment to undertakings previously given to resolve an earlier complaint regarding the employee’s fitness to practice. The amendment required that the employee provide evidence from his treating psychiatrist concerning his psychological and emotional fitness to practice and to respond effectively to stress. In answer to a question posed by the union, the employee’s treating psychiatrist reported that the employee was not suffering from any psychiatric/psychological impairment, and opined that there was no evidence that the employee’s behaviour, in removing the patient from the van, was in any way the result of a psychiatric or psychological impairment.

Just over one year later (approximately 15 months after the termination), the employee, at the request of the union, met with a psychiatrist who diagnosed him as suffering with PTSD as a result of his Russian military service in Afghanistan. The employer contended that the employee was fabricating his experience in Afghanistan.

The psychiatrist testified that his contact with the employee had been limited to one interview. He testified that he was not surprised that the psychiatrist who had advanced the earlier opinion to the College of Registered Nurses had not diagnosed the employee with PTSD, for he “did not ask the questions necessary to elicit a diagnosis of PTSD.” Although the employee knew that the psychiatrist who testified was a specialist in PTSD, the employee had advised that psychiatrist that he had not previously been diagnosed with PTSD. However, the employee’s medical records subsequently revealed he had been diagnosed with PTSD arising from a work-related exposure to HIV virus some nine years earlier. Although he had seen another doctor on many occasions over a three year period (ending less than two years prior to his termination) for the previously diagnosed PTSD, the employee claimed to have forgotten that earlier diagnosis. Despite the employee’s acknowledged history of manipulation and lying, the psychiatrist testified that the employee’s “forgetfulness” might simply have been a memory issue attributable to earlier head injuries and the employee’s extensive use of drugs.

The employer also relied on a psychologist’s report that had been provided to Workplace BC shortly after the employee’s workplace exposure to the HIV virus. He had attended six out of an authorized 10 sessions. The report of the registered psychologist recounted that the employee had stated that he fled Russia in order to avoid military conscription and subsequent service in the Afghanistan conflict. He was said to have applied for and been granted political asylum in Italy. When cross-examined on this obvious discrepancy, the employee stated that he had probably failed to advise the psychologist of his service in Afghanistan (and his subsequent capture by the Mujahedeen) because “he really needs to trust someone before he talks about that.”

A specialist in addiction medicine also testified on behalf of the employee. The employee had been referred to him by the College some 18 months prior to his termination. He stated that the employee had not advised that he suffered from PTSD until after it was diagnosed some time after his termination. His chart notes recorded that the employee had mentioned his military experience. He recounted that the employee had mentioned that his service was extremely distressing and that he had been captured by the Mujahedeen.

The arbitrator commented that the “core of this matter is tied up with the credibility of the grievor.” Based on his assessment of the employee’s testimony and other supportive documents, he concluded that the employee did have the military experience in Afghanistan that had led to the PTSD diagnosis. He accepted the opinion of the testifying psychiatrist that the employee had “developed Chronic PTSD as a direct result of his wartime experience and that it was re-exacerbated by the [earlier] patient assault [by a patient carrying the HIV virus].” He accepted that opinion over that of the employee’s own psychiatrist who had rendered the earlier opinion to the College, for the latter had not been qualified as an expert and had not testified and been subjected to cross-examination. Moreover, the testifying psychiatrist’s opinion that the employee’s psychiatrist had not asked the correct questions was accepted as a reasonable explanation of why he had concluded that the employee was not suffering from a psychiatric or psychological impairment.

The arbitrator commented that certain of the employee’s misconduct would normally justify the imposition of discipline. Without reference to the hybrid analysis generally employed in British Columbia, the arbitrator concluded that there was a clear nexus between the employee’s conduct and the PTSD, and that the employee’s conduct was therefore non-culpable. That being the case, there was no just cause for discipline. Reinstatement was ordered, with the parties being directed to address issues of back pay and mitigation.

Based on the foregoing, it is reasonable to conclude that the result may have been different had the employer retained its own psychiatrist to examine the employee and then testify on its behalf concerning the employee’s condition and the validity of the psychiatric evidence adduced by the union.

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