Monday, July 30, 2012

Workers’ Compensation Benefits Curtailed for Injured Antiques Aficionado

An October, 2011, decision by the Nova Scotia Workers’ Compensation Appeals Tribunal should signal to those of us who not only collect, but also repair, show or deal in antiques, that our hobby activities may be scrutinized by adjudicators determining entitlement to benefits arising out of a workplace injury.

The names of the injured worker and his employer are not disclosed in the reported decision. However the details of the injury, treatment, ongoing physical and emotional difficulties, and expert opinions are each enumerated in detail. The worker had been employed since 1988 as a Division Crewman, performing general labour duties; but he worked primarily as part of an asphalt crew doing brush cleaning and traffic control. He was injured in October, 2005, when he lifted a steel ramp on the back of a truck. He stated that since his injury he has had pain in his low back and numbness in his left leg, and could not work at his job.

The worker was an antique car and machinery collector. He had been off work for a number of years, he had undergone extensive treatment and testing, and he was now being offered an alternate, less stressful position with the employer which he had begun pursuant to a back-to-work program. The worker claimed that the subsequent onset of migraines, and bowel and bladder problems were causally connected to the initial injury, and thus should be taken into consideration during a review of his case, and his application for additional benefits. In addition he claimed he was unable to fulfill the requirements of the newly offered job.

The appeals tribunal reviewed the prior decision of the Workers’ Compensation Board which found that these additional medical problems were not related to the injury, that the offer of an alternate position with the employer was reasonable and appropriate, and that the worker was not entitled to further treatment at a pain management clinic. The worker’s appeal of that decision was denied in its entirety by the Appeals Tribunal. The final two issues (offer of alternate employment and denial of ongoing treatment) are relevant to our discussion of the worker’s passion for antiques and should serve as a warning to those of us who are injured on one job, but carry on with another vocation, even if it’s a hobby.

Most of us have heard stories about insurance companies sending out private investigators to spy on people who have been injured in car accidents, to speak to their neighbours, and to otherwise dig up information which suggests that they are not as injured as they claim or are simply malingerers. Workers’ compensation boards have a similar right to test the veracity of the claims of injured workers by hiring investigators. And now, in the age of the internet, it’s much easier to find out how injured individuals are really spending their time while away from the workplace, ostensibly recovering.

The evidence at the appeals hearing disclosed that the antiques aficionado, while off work had been participating in events involving antique cars and machinery, including a plowing event. He stated that because of his condition he wasn’t able to participate in the festivities “to any great extent.” He said that he would still drive an antique car around, but not while taking medication.

The worker owned four antique cars and some antique trucks and tractors, and would work on their restoration. He said that his friends would help him out to some extent working on his cars, but admitted that he did spend time on his own in his home workshop. When asked about coming to work (the back-to-work program) with grease under his nails, he admitted to working at things at his shop and showing his son how to do mechanical things, such as replacing a bicycle chain. But in an effort to rehabilitate his testimony, he stated that the mechanical jobs he was doing around the house now took longer since he had difficulty concentrating since the accident. He also said that his doctors had told him to challenge the pain, and therefore that was why he’d been seen doing strenuous activities.

On cross-examination the worker admitted that he had also been spending time on eBay and Kijiji while at work. He had been conducting business on these two internet sites while at the work at the new position offered to accommodate him. He stated that he found the websites difficult to use.

The Appeals Tribunal decision noted all these activities that the worker had been engaging in while either off work entirely, or at the back-to-work program. Yet supposedly he was unable to return to his usual job duties because of ongoing medical issues and in fact new problems which, he alleged, arose as a result of the 2005 accident.

As indicated, the worker’s claims were denied in their entirety. His claim for further treatment at a pain management clinic was denied. The Tribunal determined that he was medically able to perform the duties of the alternate position that had been made available to him, and which he in fact had been working at.

The lesson to be learned is straightforward. If you’re an antiques collector or dealer and are attempting to advance claims arising out of an accident or injury, be careful. Whether it’s an insurance company, an employer, or a workers’ compensation board, each has means of delving into your day-to-day activities. A couple of decades ago those investigations were restricted to having private eyes looking into your comings and goings. While these investigations continue today, in the modern age of internet technology, sites like eBay, Facebook and other social media networks and websites make it much easier to determine if you’re in fact entitled to the benefits and entitlements you claim. Investigators can now go online rather than follow you around and speak to your neighbours.

- Alvin Starkman, Oaxaca, Mexico
Alvin Starkman received his Masters in Social Anthropology in 1978. After teaching for a few years he attended Osgoode Hall Law School, thereafter embarking upon a successful career as a litigator until 2004. Alvin, a good-standing member of the Law Society of Upper Canada, now resides with his wife Arlene in Oaxaca, Mexico, where he writes, leads small group tours to the villages, markets, ruins and other sights, is a consultant to documentary film production companies, and operates Casa Machaya Oaxaca Bed & Breakfast.

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