Miner off sick for back pain ‘caught on camera’

A mine worker accused of faking the severity of a back injury lost his case for unfair dismissal after private investigators hired by his employer filmed him lifting heavy objects without difficulty.

The Employment Appeals Tribunal ruled that Lisheen Mine had not wrongly sacked Thomas Patton of Urlingford, Co Kilkenny, because of the nature of how he had misrepresented the scale of his injuries.

Mr Patton, who began work at the Co Tipperary mine in Nov 2005 as an underground workshop operator, suffered an injury to his lower back on Nov 3, 2008, while lifting a container during a rescue exercise.

The company doctor, who diagnosed an injury to his lumbar spine, was puzzled at Mr Patton’s lack of improvement by Dec 2008 after an MRI scan had shown his lumbar spine was normal.

Over the following two months, Mr Patton complained about problems he had in performing even light duties. He claimed he could not bend down and found the ground at the plant too uneven to walk around. He could only sit for short periods and either asked to go or was sent home by 10am each day.

Despite being referred to medical specialists, he claimed his condition continued to deteriorate.

However, investigators hired by the mine saw the claimant lifting sheets of metal weighing 25kg without any obvious sign of distress or restriction over a 20-minute period in Apr 2009. Two days later, Mr Patton told the company doctor he had continuous upper back pain which became worse with activity. He told the mine’s GP that he had been unable to lift his son or a child’s buggy or drive any long distance.

The company doctor had found it unusual that there was no improvement in a young man with a strong physique given that he had received a lot of treatment.

On May 2, Mr Patton was seen by the private investigators lifting his son and buggy as well as holding the child for some time.

However, one of the investigators admitted he had also displayed obvious physical restriction of movement and had overheard Mr Patton telling another person that he was in constant pain and discomfort.

The mine’s safety manager told the EAT that he had seen Mr Patton walking without a limp on Apr 23, 2009, as well as bending and twisting without difficulty. However, the claimant began limping once he noticed the safety manager.

The EAT heard that Mr Patton was dismissed in June 2009 following a disciplinary hearing for deliberately misrepresenting his inability to work because of the extent of his injury. The company said such misrepresentation constituted gross misconduct.

In its ruling, the EAT said the company had reasonable grounds for believing Mr Patton to be guilty of the alleged misconduct.

It also claimed the mine’s decision to sack him was not disproportionate, as it genuinely believed he was lying about his inability to work over an extended period while on full pay.


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