Did the Company have just cause to terminate James Kane for falsifying employment records? If not,...
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Did the Company have just cause to terminate James Kane for falsifying employment records? If not, what shall be the appropriate remedy? Background The Company is a world-class integrated Pulp and Paper Mill which has approximately 1,050 hourly and salaried employees. The Grievant, James Kane, was employed on March 10, 2014 as a Reserve on No. 34 Paper Machine. This arbitration stems from the following letter from Sam Gill, Human Resources Generalist, dated August 21, 2014, to James D. Kane, the Grievant. Your employment is being terminated effective immediately. The reason for your termination is falsification of Company records, specifically failure to disclose all medical information on the New Employee Health History form provided to you during your pre-employment medical assessment. The information that you failed to disclose was important not only to the initial determination of the most appropriate job assignment from a safety perspective, but also critical to ensure you received the most appropriate medical treatment in the event of an on-the-job medical emergency similar to the one you experienced. In fact, the medical personnel have indicated that they would have handled a pre- vious medical situation differently had they been aware of the information you omitted from the pre-employment medical history. On the form dated 3/1/2014 you answered No to Section B: In the past 5 years have you ever been told that you had one of the following health problems, or have you been provided medical treatment for: (16) Liver, stomach, bowel disease and (26) Kidney or bladder disease. The form that you signed includes the following statement: I certify that all statement and answers pro- vided by me are true, complete and correct to the best of my knowledge. I understand and agree that my employment and continued employment is con- ditioned upon full disclosure of all information. requested. I understand and agree that any false, incomplete or incorrect statement or answer made by me shall be considered sufficient cause for denial of employment or discharge. You read and signed the form certifying accu- racy of the medical information. The Company never takes the termination of an employee lightly. Our decision to terminate your employment was reached after careful and thorough consideration and discussion of all aspects of our investigation of this matter. The Union filed the following Grievance: Specific Provision(s) of Contract Violated: All applicable Statement of Grievance: Wrongful termination. Action Requested: Return to work with all seniority and benefits restored. Make whole. In a letter dated October 27, 2014, Jack Fuller, HR Manager, wrote to Kevin Jackson, Union Repre- sentative: Mr. James Kane was terminated on August 20, 2014. The reason given for Mr. Kane s termination was falsification of Company records, specifically failure to disclose all medical information on the New Employee Health History form provided during his pre-employment medical assessment. A copy of the termination letter is attached and is herewith incorporated into this third step griev- ance answer. During the third step grievance meeting it was the contention of the Union that Mr. Kane did not have knowledge of the specific health problems and/ or medical treatment for the specific health pro- blems at the time that he completed the New Employee Health History form. Following the third step meeting, we have again reviewed in detail the medical records released to the Company by Mr. Kane. The Com- pany remains convinced that he did, in fact, have knowledge of the medical conditions which should have been disclosed on the New Employee Health History form. Having again reviewed the factual circum- stances of this case, the Company has concluded that Mr. Kane s termination should stand. This grievance must, therefore, be denied. The Grievance was appealed to arbitration. Relevant Provisions of the Labor Agreement Section XXXIII Management Rights The Union agrees that unless specifically abridged by this Agreement, the Company shall be vested solely with all the rights it had prior to the signing of this Agreement, including the management of the business, the direction of the working force, the right to hire, plan, direct and control all plant operations; the right to promote, demote, layoff, assign or transfer, disci- pline, or discharge for just cause.... Positions of the Parties The Company: Mr. James Kane was employed on March 10, 2014 as a Reserve on No. 34 Paper Machine. On June 21, 2014, he was working the 6:00 P.M. to 6:00 A.M. shift when he experienced symptoms of heat stress. He was brought to the Mill Medical Department by his supervisor and was evaluated by the on-duty Mill nurse, Doris Kates, RN, who completed a required written evaluation of the Grievant. Treatment for heat stress and dehydration was begun. Kane was kept in Medical Department through the night with the nurses who checked the progress of his recovery. The Mill Medical Director, Dr. Wayne G. Stanwich, was called and was apprised of the Grievant s condition. Dr. Stan- wich in turn provided direction for his treatment. By morning on June 22, 2014, Kane had recovered sufficiently well to be allowed to go home. Based on the notes of the Nurse Practitioner, Max Smith, Patient states he s feeling a lot better. The nurse felt the heat exhaustion problem was resolved. Kane was given instructions to follow for the coming days and was told to follow up on June 25, 2014, before returning to work and to contact the Medical Department if he had further problems. After June 22, 2014, he saw his personal doctor, Dr. Vadik and was hospitalized. He was released from the hospital on June 26, 2014 and returned to work on June 29, 2014. Since his hospitalization was related to the illness he experienced at work, the Mill Medical Department requested records from the hospital, and based on that information requested records from his personal doctor. Once these records were reviewed by the Mill the Mill Medical Director led to discovery of Medi- cal conditions which he had not acknowledged when he completed a New Employee Health History Form prior to his employment. These discrepancies were then investigated, and based on the statements on the form relating to accuracy and completeness of information provided; he was terminated on 8/20/14. The statements on the form are clear as to the person completing the form attesting to the accuracy and completeness of the information pro- vided, and the consequences of false, incomplete, or inaccurate information is likewise clear and under- standable. The Grievant signed the form on 3/1/14. The evidence is overwhelming that the Grievant had knowledge of the relevant health conditions, had been advised by his doctor of the conditions on a number of occasions, but he chose to answer NO on the form. The Company believes the Grievant s knowingly violated the provision of the New Employee Health History Form, the penalty for which is termination. The Company s decision to terminate the Grievant was based solely on his vio- lation of the conditions on the New Employee Health History Form, and the absolute need to maintain the integrity of the employment process. This need has been and is recognized by arbitrators in deciding numerous similar cases. At no time has it been suggested that the Company s actions were arbitrary and capricious. The Company therefore respectfully requests that this grievance be denied, the integrity of the employment process be preserved and the termination stand. The Union: The Union filed a grievance on behalf of James Kane s unjust termination. The Company denied the Grievance in its final answer dated August 23, 2014, and stated that it had reviewed in detail the medical records released to the Company by Mr. Kane. The Company remains convinced that he did, in fact, have knowledge of the medical conditions which should have been disclosed on the New Employee Health History form. The Company has concluded that Mr. Kane s termination should stand. This grievance must, therefore, be denied. Mr. James Kane was employed at the Company on three different occasions. Kane was laid off, due to lack of work on the two prior occasions. Kane s length of layoff status required him to be rehired due to the seniority on recall provisions in the contract. Mr. Kane s employment records are without blemish until his unjust termination on August 20, 2014. Mr. Kane had applied for employ- ment and been rehired multiple times with the Company and was always forthcoming in his application process and screening procedures. On March 1, 2014 was no dif- ferent. During this rehire, Kane was asked to complete a New Employee Health History which he did. The ques- tionnaire asked multiple health questions with lines for explanation to answers given. The questionnaire provided space to reveal all prescribed medications currently being taken. Kane identified all of his known medical issues and the medications he was taking at the time. Kane truthfully admitted tobacco use, knowing that the Company did not test for tobacco. Mr. Kane was forthcoming with all answers to this questionnaire. Mr. Kane signed and dated the form s last page which certified the accuracy of the information with no reservations. On the question- naire, Kane indicated that he suffered from Diabetes, High Blood Pressure, Cholesterol, and Anxiety and also listed the medications for each known ailment and the amounts prescribed for his condition. On June 21, 2014, Kane was working as a sixth hand on the winder. The job was extremely demanding due to the speed of the process and the sheer number of paper rolls being produced. The temperature in the facility was in excess of 100 degrees. Due to the heat and overexertion to the job task, Kane began to cramp in his shoulders and back. Kane became dizzy and reported to the on-site medical facility. Kane was trea- ted by the nurse on call. Kane s clothing was loosened and he was given squincher sports drink and allowed to rest. After a couple of hours in the medical department, Kane informed his nurse that he couldn t catch my breath. The nurse called Dr. Stanwich. When Kane returned, he said, if they had to give me an IV, it would be a recordable incident, and it was left at that. She never gave me an IV. Just kept feeding me Squincher or Gatorade. Kane saw a nurse practitioner the morning before he left the facility and was told to go home and rest and continue hydration. He was told he would be suscepti- ble to similar episodes in the following days. Kane s condition worsened and he was hospitalized on June 24, 2014. Kane was admitted for dehydration and was treated by Dr. Vadik, his Doctor of Internal Medicine. Kane received aggressive IV fluid rehydration during these days of inpatient care. Upon Kane s return to work June 29, 2014, he was informed to report through the Company s medical facility. Kane met with Supervisor Frank Nix and completed an Incident Investigation Report. The report briefly describes the incident root causes, analysis, and corrective action(s) as prepared by the Company. Kane was instructed to report to the nurse s station and was instructed to go into a room. The nurse dialed Curtis Smith, Nurse Practitioner. Kane was handed the phone. Kane testified that Mr. Smith said You don t know what kind of mess you have caused by not coming through medical. Why didn t you come through medical instead of going to your physician? Smith said, You ve thrown a monkey wrench in this. We re going to have to go back with workman s comp. Kane felt somewhat threatened by the message and feared retaliation. Kane testified that he felt he was inadequately trea- ted in the medical facility due to a corporate safety initiative. He felt that he did not receive IV fluids to rehydrate his system because the Company would have to report the treatment and that would be a recordable injury. Kane worked the rest of the week which con- sisted of Tuesday, Wednesday and Thursday night. On his break on Friday morning, Kane received a call from Jack Fuller around 11:00 A.M. telling him not to report back to work pending an investigation. Kane hand delivered 92 pages of medical records on July 22, 2014. These records were from Doctors Condale and Vadik. Kane signed a Release of Medical Information to be sent to Liberty Health Care, the contracted medi- cal providers for the Company, on July 29, 2014. The Company advised Kane that his employment was being terminated effective immediately. The reason was falsification of Company records, specifically fail- ure to disclose all medical information on the New Employee Health History. The Company stated that the information that Kane failed to disclose during his preemployment medical assessment was important not only to the initial determination of the most appropri- ate job assignment from a safety perspective, but also critical to ensure he received the most appropriate medical treatment in the event of an on-the-job medi- cal emergency similar to the one he experienced. In fact, the medical personnel have indicated that they would have handled his medical situation differently had they been aware of the information Kane omitted from the preemployment medical history. On October 10, 2014, Kane presented two separate letters written by Dr. Vadik, M.D. who specializes in internal medicine. These letters described the condition of Kane and Dr. Vadik gave his expert medical opinion that refuted the Company s position that Kane had Chronic Renal Insufficiency and stated he is perfectly fit to return to work. The Union argued that the evidence makes several things clear. Kane was forthcoming in all his state- ments and answered all questions truthfully. Kane never tried to hide any condition known to him at the time of his preemployment New Employee Health History. Kane filled out this form to best of his knowl- edge, as truthfully as a person untrained in medical terminology could possibly comprehend. Kane was being treated for Diabetes, High Blood Pressure, Cho- lesterol, and Anxiety. Kane listed all medications pre- scribed for the treatment of these illnesses. Kane was forthcoming and admitted using tobacco products in Section A: listing the brand of snuff he uses Copenha- gen. Kane said multiple times that he was never told that he had liver, stomach, bowel, kidney or bladder disease. Kane testified I would sign it again today just like it is. He signed the Certification of Accuracy of Medical Information and Authorization to Obtain Additional Medical Information from which included all he knew was wrong with him. The Company brought several claims about a fatty liver condition. Kane freely admitted he was diagnosed with a fatty liver. Kane testified numerous times that his doctor told him the fatty liver was reversible with proper lifestyle choices. He testified that he did not consider fatty liver a disease. Kane thought, as a regular person, not a trained medical practitioner, that fatty liver was reversible with lifestyle modification and he was never told he had a liver disease. When asked if the form had said that in the past five years, you have been told or you had one of the following health problems or you have been provided medical treatment for, or if this question said kidney or bladder problems, what would your answer have been? Kane testified Yes. He testified if the word disease had not been affixed to either of these, he would have answered the questions differently. Kane repeatedly testified he was aware of the kidney test. Also, he received routine eye and feet examinations, all due to his diagnoses of diabetes. The records prove Kane regularly visited his physicians and was aware of his diabetes and complications of the disease. The Union argued that the Company had com- plete access to Kane s health records and performed tests prior to his employment. The conditions as por- trayed by the Company would not have returned nor- mal under the blood and urine screens provided in early March. The statement that the Company would have han- dled his medical situation differently is perplexing. The Company was aware Kane was a diabetic yet only checked his blood sugar twice the night Kane suffered heat exhaus- tion. The first glucose blood check was high at 212, around 9:00 P.M. The last check was at 6:00 A.M. the following morning. The Union asked why there were only two checks of glucose levels on a diabetic who during the night experienced trouble breathing? Dr. Stanwich testified that, if he had known the renal insufficiency, we would have been more apt to send him to the hospi- tal, rather than orally re-hydrate him. The Union argued that diabetes affects the kidneys, and medical protocol for diabetics are more stringent. Dr. Stanwich testified diabetes can affect the kid- neys or renal system. Dr. Stanwich also testified he had been notified by the nurse that Kane was a diabetic during the call he received the night of the heat exhaus- tion. Dr. Stanwich testified he could have ordered Kane, IV therapy. In regard to the termination letter statement The medical personnel have indicated that they would have handled your medical situation differ- ently had they been aware of the information you omit- ted from the pre-employment medical history. The Union asked: How? The Company knew of the dia- betes and potential complications from that illness. When asked about the fatty liver, Dr. Stanwich testified that the word disease was not mentioned, but it says he was advised of fatty liver. The word disease was not used. The reason is simple, Kane was never told he had a disease. Curtis Smith penned the letter to Mr. Fuller on July 23, 2014. He stated, that Kane answered No to Section B: In the past 5 years have you ever been told that you have one of following health problems, or have you been provided Medical Treatment for: (16.) Liver, stomach, bowel Disease and (26) Kidney or bladder disease. Kane was never told of any disease, other than diabetes. The Union concluded: ..... in this case, the Company had the burden of proof, to show by preponderance of the evidence, that they had just cause to terminate Kane s employment. The Company provided medical docu- ments that were hand delivered by Kane. The Com- pany brought multiple witnesses who were trained professionally as doctors, to give interpretation to other doctor s notes, and results. Kane testified truthfully to all questions, and also provided two letters provided by Dr. Joshua Vadik, M.D. Internal Medicine, to provide insight into his condition. the Union feels Kane was unjustly termi- nated for an incident that happened on the night of June 21, 2014, that would blemish the safety record of the mill. Kane is a common man, not a medical professional whose dialogue consists of medical terminology. He stated from the beginning he was a diabetic, and that was the only Disease he suffered from. The Union believes it made a clear case to show what happened in this matter. the Union respectfully asks that the griev- ance be sustained, that Kane be returned to employ- ment, and made whole for all lost wages and benefits. 111 111 Questions 1. Should Kane receive credit for his previous years of employment with the Company? 2. Compare the weight to be given the Company doc- tor to that of Kane s personal doctor. 3. What level of proof should be used in this decision? 4. Now you decide. Did the Company have just cause to terminate James Kane? If so, why? If not, why not? Did the Company have just cause to terminate James Kane for falsifying employment records? If not, what shall be the appropriate remedy? Background The Company is a world-class integrated Pulp and Paper Mill which has approximately 1,050 hourly and salaried employees. The Grievant, James Kane, was employed on March 10, 2014 as a Reserve on No. 34 Paper Machine. This arbitration stems from the following letter from Sam Gill, Human Resources Generalist, dated August 21, 2014, to James D. Kane, the Grievant. Your employment is being terminated effective immediately. The reason for your termination is falsification of Company records, specifically failure to disclose all medical information on the New Employee Health History form provided to you during your pre-employment medical assessment. The information that you failed to disclose was important not only to the initial determination of the most appropriate job assignment from a safety perspective, but also critical to ensure you received the most appropriate medical treatment in the event of an on-the-job medical emergency similar to the one you experienced. In fact, the medical personnel have indicated that they would have handled a pre- vious medical situation differently had they been aware of the information you omitted from the pre-employment medical history. On the form dated 3/1/2014 you answered No to Section B: In the past 5 years have you ever been told that you had one of the following health problems, or have you been provided medical treatment for: (16) Liver, stomach, bowel disease and (26) Kidney or bladder disease. The form that you signed includes the following statement: I certify that all statement and answers pro- vided by me are true, complete and correct to the best of my knowledge. I understand and agree that my employment and continued employment is con- ditioned upon full disclosure of all information. requested. I understand and agree that any false, incomplete or incorrect statement or answer made by me shall be considered sufficient cause for denial of employment or discharge. You read and signed the form certifying accu- racy of the medical information. The Company never takes the termination of an employee lightly. Our decision to terminate your employment was reached after careful and thorough consideration and discussion of all aspects of our investigation of this matter. The Union filed the following Grievance: Specific Provision(s) of Contract Violated: All applicable Statement of Grievance: Wrongful termination. Action Requested: Return to work with all seniority and benefits restored. Make whole. In a letter dated October 27, 2014, Jack Fuller, HR Manager, wrote to Kevin Jackson, Union Repre- sentative: Mr. James Kane was terminated on August 20, 2014. The reason given for Mr. Kane s termination was falsification of Company records, specifically failure to disclose all medical information on the New Employee Health History form provided during his pre-employment medical assessment. A copy of the termination letter is attached and is herewith incorporated into this third step griev- ance answer. During the third step grievance meeting it was the contention of the Union that Mr. Kane did not have knowledge of the specific health problems and/ or medical treatment for the specific health pro- blems at the time that he completed the New Employee Health History form. Following the third step meeting, we have again reviewed in detail the medical records released to the Company by Mr. Kane. The Com- pany remains convinced that he did, in fact, have knowledge of the medical conditions which should have been disclosed on the New Employee Health History form. Having again reviewed the factual circum- stances of this case, the Company has concluded that Mr. Kane s termination should stand. This grievance must, therefore, be denied. The Grievance was appealed to arbitration. Relevant Provisions of the Labor Agreement Section XXXIII Management Rights The Union agrees that unless specifically abridged by this Agreement, the Company shall be vested solely with all the rights it had prior to the signing of this Agreement, including the management of the business, the direction of the working force, the right to hire, plan, direct and control all plant operations; the right to promote, demote, layoff, assign or transfer, disci- pline, or discharge for just cause.... Positions of the Parties The Company: Mr. James Kane was employed on March 10, 2014 as a Reserve on No. 34 Paper Machine. On June 21, 2014, he was working the 6:00 P.M. to 6:00 A.M. shift when he experienced symptoms of heat stress. He was brought to the Mill Medical Department by his supervisor and was evaluated by the on-duty Mill nurse, Doris Kates, RN, who completed a required written evaluation of the Grievant. Treatment for heat stress and dehydration was begun. Kane was kept in Medical Department through the night with the nurses who checked the progress of his recovery. The Mill Medical Director, Dr. Wayne G. Stanwich, was called and was apprised of the Grievant s condition. Dr. Stan- wich in turn provided direction for his treatment. By morning on June 22, 2014, Kane had recovered sufficiently well to be allowed to go home. Based on the notes of the Nurse Practitioner, Max Smith, Patient states he s feeling a lot better. The nurse felt the heat exhaustion problem was resolved. Kane was given instructions to follow for the coming days and was told to follow up on June 25, 2014, before returning to work and to contact the Medical Department if he had further problems. After June 22, 2014, he saw his personal doctor, Dr. Vadik and was hospitalized. He was released from the hospital on June 26, 2014 and returned to work on June 29, 2014. Since his hospitalization was related to the illness he experienced at work, the Mill Medical Department requested records from the hospital, and based on that information requested records from his personal doctor. Once these records were reviewed by the Mill the Mill Medical Director led to discovery of Medi- cal conditions which he had not acknowledged when he completed a New Employee Health History Form prior to his employment. These discrepancies were then investigated, and based on the statements on the form relating to accuracy and completeness of information provided; he was terminated on 8/20/14. The statements on the form are clear as to the person completing the form attesting to the accuracy and completeness of the information pro- vided, and the consequences of false, incomplete, or inaccurate information is likewise clear and under- standable. The Grievant signed the form on 3/1/14. The evidence is overwhelming that the Grievant had knowledge of the relevant health conditions, had been advised by his doctor of the conditions on a number of occasions, but he chose to answer NO on the form. The Company believes the Grievant s knowingly violated the provision of the New Employee Health History Form, the penalty for which is termination. The Company s decision to terminate the Grievant was based solely on his vio- lation of the conditions on the New Employee Health History Form, and the absolute need to maintain the integrity of the employment process. This need has been and is recognized by arbitrators in deciding numerous similar cases. At no time has it been suggested that the Company s actions were arbitrary and capricious. The Company therefore respectfully requests that this grievance be denied, the integrity of the employment process be preserved and the termination stand. The Union: The Union filed a grievance on behalf of James Kane s unjust termination. The Company denied the Grievance in its final answer dated August 23, 2014, and stated that it had reviewed in detail the medical records released to the Company by Mr. Kane. The Company remains convinced that he did, in fact, have knowledge of the medical conditions which should have been disclosed on the New Employee Health History form. The Company has concluded that Mr. Kane s termination should stand. This grievance must, therefore, be denied. Mr. James Kane was employed at the Company on three different occasions. Kane was laid off, due to lack of work on the two prior occasions. Kane s length of layoff status required him to be rehired due to the seniority on recall provisions in the contract. Mr. Kane s employment records are without blemish until his unjust termination on August 20, 2014. Mr. Kane had applied for employ- ment and been rehired multiple times with the Company and was always forthcoming in his application process and screening procedures. On March 1, 2014 was no dif- ferent. During this rehire, Kane was asked to complete a New Employee Health History which he did. The ques- tionnaire asked multiple health questions with lines for explanation to answers given. The questionnaire provided space to reveal all prescribed medications currently being taken. Kane identified all of his known medical issues and the medications he was taking at the time. Kane truthfully admitted tobacco use, knowing that the Company did not test for tobacco. Mr. Kane was forthcoming with all answers to this questionnaire. Mr. Kane signed and dated the form s last page which certified the accuracy of the information with no reservations. On the question- naire, Kane indicated that he suffered from Diabetes, High Blood Pressure, Cholesterol, and Anxiety and also listed the medications for each known ailment and the amounts prescribed for his condition. On June 21, 2014, Kane was working as a sixth hand on the winder. The job was extremely demanding due to the speed of the process and the sheer number of paper rolls being produced. The temperature in the facility was in excess of 100 degrees. Due to the heat and overexertion to the job task, Kane began to cramp in his shoulders and back. Kane became dizzy and reported to the on-site medical facility. Kane was trea- ted by the nurse on call. Kane s clothing was loosened and he was given squincher sports drink and allowed to rest. After a couple of hours in the medical department, Kane informed his nurse that he couldn t catch my breath. The nurse called Dr. Stanwich. When Kane returned, he said, if they had to give me an IV, it would be a recordable incident, and it was left at that. She never gave me an IV. Just kept feeding me Squincher or Gatorade. Kane saw a nurse practitioner the morning before he left the facility and was told to go home and rest and continue hydration. He was told he would be suscepti- ble to similar episodes in the following days. Kane s condition worsened and he was hospitalized on June 24, 2014. Kane was admitted for dehydration and was treated by Dr. Vadik, his Doctor of Internal Medicine. Kane received aggressive IV fluid rehydration during these days of inpatient care. Upon Kane s return to work June 29, 2014, he was informed to report through the Company s medical facility. Kane met with Supervisor Frank Nix and completed an Incident Investigation Report. The report briefly describes the incident root causes, analysis, and corrective action(s) as prepared by the Company. Kane was instructed to report to the nurse s station and was instructed to go into a room. The nurse dialed Curtis Smith, Nurse Practitioner. Kane was handed the phone. Kane testified that Mr. Smith said You don t know what kind of mess you have caused by not coming through medical. Why didn t you come through medical instead of going to your physician? Smith said, You ve thrown a monkey wrench in this. We re going to have to go back with workman s comp. Kane felt somewhat threatened by the message and feared retaliation. Kane testified that he felt he was inadequately trea- ted in the medical facility due to a corporate safety initiative. He felt that he did not receive IV fluids to rehydrate his system because the Company would have to report the treatment and that would be a recordable injury. Kane worked the rest of the week which con- sisted of Tuesday, Wednesday and Thursday night. On his break on Friday morning, Kane received a call from Jack Fuller around 11:00 A.M. telling him not to report back to work pending an investigation. Kane hand delivered 92 pages of medical records on July 22, 2014. These records were from Doctors Condale and Vadik. Kane signed a Release of Medical Information to be sent to Liberty Health Care, the contracted medi- cal providers for the Company, on July 29, 2014. The Company advised Kane that his employment was being terminated effective immediately. The reason was falsification of Company records, specifically fail- ure to disclose all medical information on the New Employee Health History. The Company stated that the information that Kane failed to disclose during his preemployment medical assessment was important not only to the initial determination of the most appropri- ate job assignment from a safety perspective, but also critical to ensure he received the most appropriate medical treatment in the event of an on-the-job medi- cal emergency similar to the one he experienced. In fact, the medical personnel have indicated that they would have handled his medical situation differently had they been aware of the information Kane omitted from the preemployment medical history. On October 10, 2014, Kane presented two separate letters written by Dr. Vadik, M.D. who specializes in internal medicine. These letters described the condition of Kane and Dr. Vadik gave his expert medical opinion that refuted the Company s position that Kane had Chronic Renal Insufficiency and stated he is perfectly fit to return to work. The Union argued that the evidence makes several things clear. Kane was forthcoming in all his state- ments and answered all questions truthfully. Kane never tried to hide any condition known to him at the time of his preemployment New Employee Health History. Kane filled out this form to best of his knowl- edge, as truthfully as a person untrained in medical terminology could possibly comprehend. Kane was being treated for Diabetes, High Blood Pressure, Cho- lesterol, and Anxiety. Kane listed all medications pre- scribed for the treatment of these illnesses. Kane was forthcoming and admitted using tobacco products in Section A: listing the brand of snuff he uses Copenha- gen. Kane said multiple times that he was never told that he had liver, stomach, bowel, kidney or bladder disease. Kane testified I would sign it again today just like it is. He signed the Certification of Accuracy of Medical Information and Authorization to Obtain Additional Medical Information from which included all he knew was wrong with him. The Company brought several claims about a fatty liver condition. Kane freely admitted he was diagnosed with a fatty liver. Kane testified numerous times that his doctor told him the fatty liver was reversible with proper lifestyle choices. He testified that he did not consider fatty liver a disease. Kane thought, as a regular person, not a trained medical practitioner, that fatty liver was reversible with lifestyle modification and he was never told he had a liver disease. When asked if the form had said that in the past five years, you have been told or you had one of the following health problems or you have been provided medical treatment for, or if this question said kidney or bladder problems, what would your answer have been? Kane testified Yes. He testified if the word disease had not been affixed to either of these, he would have answered the questions differently. Kane repeatedly testified he was aware of the kidney test. Also, he received routine eye and feet examinations, all due to his diagnoses of diabetes. The records prove Kane regularly visited his physicians and was aware of his diabetes and complications of the disease. The Union argued that the Company had com- plete access to Kane s health records and performed tests prior to his employment. The conditions as por- trayed by the Company would not have returned nor- mal under the blood and urine screens provided in early March. The statement that the Company would have han- dled his medical situation differently is perplexing. The Company was aware Kane was a diabetic yet only checked his blood sugar twice the night Kane suffered heat exhaus- tion. The first glucose blood check was high at 212, around 9:00 P.M. The last check was at 6:00 A.M. the following morning. The Union asked why there were only two checks of glucose levels on a diabetic who during the night experienced trouble breathing? Dr. Stanwich testified that, if he had known the renal insufficiency, we would have been more apt to send him to the hospi- tal, rather than orally re-hydrate him. The Union argued that diabetes affects the kidneys, and medical protocol for diabetics are more stringent. Dr. Stanwich testified diabetes can affect the kid- neys or renal system. Dr. Stanwich also testified he had been notified by the nurse that Kane was a diabetic during the call he received the night of the heat exhaus- tion. Dr. Stanwich testified he could have ordered Kane, IV therapy. In regard to the termination letter statement The medical personnel have indicated that they would have handled your medical situation differ- ently had they been aware of the information you omit- ted from the pre-employment medical history. The Union asked: How? The Company knew of the dia- betes and potential complications from that illness. When asked about the fatty liver, Dr. Stanwich testified that the word disease was not mentioned, but it says he was advised of fatty liver. The word disease was not used. The reason is simple, Kane was never told he had a disease. Curtis Smith penned the letter to Mr. Fuller on July 23, 2014. He stated, that Kane answered No to Section B: In the past 5 years have you ever been told that you have one of following health problems, or have you been provided Medical Treatment for: (16.) Liver, stomach, bowel Disease and (26) Kidney or bladder disease. Kane was never told of any disease, other than diabetes. The Union concluded: ..... in this case, the Company had the burden of proof, to show by preponderance of the evidence, that they had just cause to terminate Kane s employment. The Company provided medical docu- ments that were hand delivered by Kane. The Com- pany brought multiple witnesses who were trained professionally as doctors, to give interpretation to other doctor s notes, and results. Kane testified truthfully to all questions, and also provided two letters provided by Dr. Joshua Vadik, M.D. Internal Medicine, to provide insight into his condition. the Union feels Kane was unjustly termi- nated for an incident that happened on the night of June 21, 2014, that would blemish the safety record of the mill. Kane is a common man, not a medical professional whose dialogue consists of medical terminology. He stated from the beginning he was a diabetic, and that was the only Disease he suffered from. The Union believes it made a clear case to show what happened in this matter. the Union respectfully asks that the griev- ance be sustained, that Kane be returned to employ- ment, and made whole for all lost wages and benefits. 111 111 Questions 1. Should Kane receive credit for his previous years of employment with the Company? 2. Compare the weight to be given the Company doc- tor to that of Kane s personal doctor. 3. What level of proof should be used in this decision? 4. Now you decide. Did the Company have just cause to terminate James Kane? If so, why? If not, why not?
Expert Answer:
Answer rating: 100% (QA)
1 No his past working years dont lend the company credence to reinstate it because every time he was ... View the full answer
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ISBN: ?978-0470424704
5th edition
Authors: Mckinsey, Tim Koller, Marc Goedhart, David Wessel
Posted Date:
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