HomeMy WebLinkAbout2014-1430.Union.15-03-25 DecisionCrown Employees
Grievance Settlement
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Commission de
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GSB#2014-1430
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and
Professional Crown Employees of Ontario
(Union) Association
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The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Marilyn A. Nairn Vice-Chair
FOR THE UNION Christine Davies
Sack Goldblatt Mitchell LLP
Counsel
FOR THE EMPLOYER Susan Munn
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING February 12, 2015
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Decision
[1] Article 32 of the collective agreement between the Crown in Right of Ontario (the
“employer”) and AMAPCEO (the “Association”) establishes a Joint Benefits Committee (“the
Committee”), with duties set out in Article 32.2.1 of the collective agreement. Those duties
include making decisions about complaints brought by individuals involving their entitlement to
benefits. Articles 32.2.2.2 and 32.5 of the collective agreement provide that, where the
Committee is unable to resolve a complaint by consensus, decisions of a mutually agreed upon
independent third party are final and binding.
[2] The issue before me is whether the claimant, referred to by the initials “C.F.”, is entitled
to long-term income protection (“LTIP”) benefits. Details that might identify the claimant have
been edited. There was no dispute that, pursuant to the collective agreement provisions cited
above, I have the jurisdiction to hear and determine this complaint as it related to the “own occ”
period. There was a dispute as to whether I had the jurisdiction to consider and determine the
“any occ” period.
[3] Eligibility for benefits under the LTIP Plan (“LTIP” or the “Plan”) requires the claimant
to be “totally disabled”, defined under the Plan as:
“Totally disabled” means, for the first 30 months of a Period of Disability, an employee is
wholly and continuously disabled by illness or accidental bodily injury which prevents him
from performing the essential duties of his normal occupation…After the first 30 months of
total disability, “Totally Disabled” shall mean he is unable to perform the essential duties
of any occupation for which he is reasonably fitted by education, training or experience.
[4] The medical file reviewed by the insurer, Great-West Life (“GWL”) and by the
Committee was provided. In addition, the claimant filed a written statement in support of her
application for benefits, and the employer was content not to exercise any right of cross-
examination. The matter proceeded on the basis of this written record, without prejudice to
AMAPCEO’s position that it may call viva voce evidence in other cases.
[5] I was referred to and have reviewed the following decisions: AMAPCEO and the Crown
in Right of Ontario (MGS), GSB File #2013-1414, decision of Vice-Chair Mikus dated July 23,
2014; ONA v. Hotel-Dieu Grace Hospital (Beaudet Grievance), [2004] O.L.A.A. No. 458
(Hunter); Trenton Memorial Hospital v. ONA [2000] O.L.A.A. No. 506 (Thorne); Toronto (City)
v. Canadian Union of Public Employees, Local 79 [2010] O.L.A.A. No. 389 (Nairn); Joseph
Brant Memorial Hospital v. ONA, [2014] CarswellOnt 18223 (Bendel); and two decisions
concerning appeals before the subcommittee of the OPSEU/Crown Joint Insurance Benefits
Review Committee, regarding claim #66072, decision dated April 14, 2000, and claim #45825,
decision dated April 10, 2000 (Briggs); and AMAPCEO v. The Crown in Right of Ontario
(MCSS) and Ms. R.G., decision of Briggs dated October 27, 2010.
Summary position of the Association
[6] The Association relied on an initial investigation by the claimant’s family physician in
testing and referrals that led, some months later, to a diagnosis of fibromyalgia (“FM”) and
chronic fatigue (“CF”). That condition, argued the Association, was complicated by further
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deterioration, in that the claimant also suffered from Irritable Bowel Syndrome, recurrent lung
infections, and other conditions. The Association noted that the family physician had closely
followed the claimant’s condition indicating throughout that she suffered from a significant level
of impairment and was unable to engage in gainful employment. Further follow-up eliminated
other possible medical issues and in December 2012 the family physician specifically noted that
the claimant was unable to maintain many activities of daily living (“ADLs”).
[7] The Association argued that there was no issue as to the claimant’s credibility or
motivation, as evidenced by a dramatic change in lifestyle and in her retaining an out-of-pocket
comprehensive medical assessment and supported by physician’s assessments. She was approved
for other disability benefits, including CPP and the disability tax credit. Through 2012 and 2013
the claimant was assessed by a rheumatologist, an internist, and a sleep specialist. An IME
conducted by a physiatrist failed to address the FM diagnosis, argued the Association, rendering
it of limited value. It also was the only report to conclude that the claimant’s subjective reporting
was inconsistent with the medically reported findings, argued the Association. A psychiatric IME
confirmed an adjustment disorder with depression, chronic, consistent, argued the Association,
with the physical diagnoses. The Association took issue with certain reports from the claimant’s
manager, noted by the insurer when concluding the medical did not support severe and
debilitating illness. The insurer improperly dismissed the rheumatologist’s and other reports as
based on self-reported symptoms, argued the Association.
[8] The Association noted that a recent GWL memo indicated explicit consideration of both
the “own occ” and “any occ” periods and that an earlier October 2014 memo appeared to
implicitly consider the “any occ” period. The Association argued that, if the claimant was
disabled under the “own occ” provisions, it was likely she would also be disabled under the “any
occ” provision. It urged that a decision be rendered with respect to both periods as being both
practical and efficient. In the alternative, the Association was prepared to waive the opportunity
to review the matter within the Committee by providing submissions on the “any occ” period
following the release of any decision on the “own occ” period.
Summary position of the Employer
[9] On the procedural issue, the employer argued that neither GWL nor the Committee had
had the opportunity to consider the “any occ” period. To proceed beyond a determination as to
the “own occ” period, argued the employer, would be to exceed the jurisdiction provided under
the terms of the collective agreement.
[10] On the issue of whether the claimant was totally disabled during the “own occ” period,
the employer argued that the medical evidence did not support the claim. It was not a case of
GWL dismissing the claim on the basis of subjective reporting, but a lack of evidence as to the
extent of impairment and how that affected the claimant’s ability to work, argued the employer.
There were no clinical findings to support impairment, argued the employer. The claimant was
not entitled to LTIP, argued the employer, simply because she suffers from a medical condition.
The onus was on the Association to show that the condition rendered the claimant wholly and
continuously unable to perform the essential duties of her job, argued the employer. As there was
no objective evidence supporting impairment, a subjective report of symptoms carried little
weight, argued the employer. No clinical tests were performed by the family physician, noted the
employer, and there was no evidence that any functional analysis was performed.
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[11] The employer argued that the internist noted only a basic finding of tender points; the
sleep test showed some impaired sleep efficiency, but neither showed how the claimant was
disabled. The physiatrist’s IME showed no evidence of impairment, argued the employer, and
there was no objective verification of pain. The psychiatric IME concluded that the claimant was
able to complete basic ADLs and failed to show any evidence of incapacity or cognitive and/or
memory impairment. That report concluded, argued the employer, that the psychiatric diagnosis
was not totally disabling. The evidence of the rheumatologist included no evidence of
examinations or clinical notes, argued the employer, and therefore was of little value and showed
no evidence of impairment. The family physician’s clinical notes refer to no distress and no
objective verification of symptoms, argued the employer. The claimant’s self-report cannot be
the sole basis for a finding of total disability, argued the employer. There must be some clinical
evidence that supported the claimant’s reporting and the level of impairment. The claimant’s job
is sedentary, noted the employer. The test, argued the employer, is not whether she can do the
job well or whether she requires appropriate accommodation. Rather, it is whether she is wholly
and continuously disabled from performing the essential duties of her position.
[12] The Association’s cases were readily distinguishable on their facts, argued the employer.
Where there were subjective symptoms, there was also evidence of clinical testing and other
evaluations to support those symptoms. There was no objective evidence concerning the level of
impairment in this case, argued the employer. No weight can be given to the fact that the
claimant was able to access CPP or other benefits, as the tests for disability were different,
argued the employer.
Association Reply
[13] In reply, and with respect to the procedural issue, the Association argued that Article
32.2.2.7 of the collective agreement provided for all the powers of a Vice-Chair of the Grievance
Settlement Board, including the power to control the proceedings, thereby enabling a decision
that took into account the most expeditious and appropriate process in the circumstances. It was
not an issue of jurisdiction, argued the Association, but a decision as to how best to proceed in
the circumstances.
[14] GWL did not draw a distinction between an objective basis for the claimant’s condition
and her level of impairment, argued the Association. There was evidence of impairment argued
the Association. There was no challenge to the claimant’s statement, noted the Association, and
must be accepted. There was evidence that the claimant was not malingering and that she was
impaired from performing ADLs. The onus remained one of a balance of probabilities, argued
the Association. The family physician was not just recording, argued the Association, but had
made a clinical assessment and was providing an opinion based on that assessment, having seen
the claimant regularly over the period. The rheumatologist’s conclusions were based on clinical
tests, argued the Association, and GWL did not suggest other tests available that had not been
utilized. The family physician was repeatedly asked if accommodation would allow the claimant
to work and he repeatedly indicated no, argued the Association. It was not possible for this
claimant to attend work regularly and perform the job with a reasonable degree of competence,
argued the Association. She spent most of her days sleeping and, on good days, did some
shopping and caring for her mother.
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[15] The RG case relied on by the employer was distinguishable, argued the Association, as,
unlike here, there were large gaps of time not reflected in the medical evidence. Receipt of CPP
disability benefits was persuasive, argued the Association, as that test required that disability
prevent work in any job. It noted that the claimant had signed a waiver so that the CPP file could
be available, but that it had not been obtained.
* * *
[16] The claimant has been off work since January 24, 2012. If eligible, the two-year “own
occ” portion of her LTIP claim would commence July 24, 2012. When she went off work, she
was 53 years of age.
[17] The claimant is employed as Regional Administrative Coordinator. The claimant has
been employed since May 1999 in a similar capacity although the job has evolved over the years.
According to the position description and the claimant’s performance appraisals, this was a new
position as of about 2008, although there was no evidence that the claimant was required to
compete for the position. Although no physical demands analysis was provided, the parties
appeared to agree that the job is sedentary, involving consistent and frequent use of a computer
and phone. The key job indicators are outlined in a Performance Development Plan and
Appraisal Form signed by the claimant’s manager (referred to herein as “L.L.”) following a mid-
year review on July 22, 2011 and in the position description dated 11/09/2010. That description
identifies that “exemplary organizational and prioritization skills are required in order to
multitask and handle multiple competing priorities and ensure that issues that can impact
operations are raised to the management team”. In addition to specific administrative, financial,
and human resources coordination duties, the description refers to general duties as including
briefing managers, research, advising, coordinating, answering inquiries, participating on
committees, and assisting the Regional Operations Coordinator.
[18] The claimant described a gradual deterioration in her health over 2011. She had enjoyed
an active and healthy lifestyle, including running a program promoting wellness among
government employees, a claim substantiated by her performance appraisals. She left work on
January 24, 2012. On January 30, 2012 she attended at a Crisis Intervention Clinic.
[19] The clinical notes of the family physician show a series of investigations. On February 7,
2012 he recorded the claimant’s chief complaint as ongoing fatigue and inability to concentrate.
In February 2012 she was investigated for chest issues, given there was a history of chronic
bronchitis. On February 28, 2012 completed a medical report to the employer, advising that the
claimant was “unable to maintain any gainful employment at this time” and was “unable to
attend to cognitive decision making and unable to manage physical activities”. He described
these restrictions as temporary and that further investigation was underway. He did not support a
return to work with accommodations.
[20] On March 1, 2012 the family physician received lab results from blood and urinalysis and
on March 5, 2012 he received results from an echocardiogram. A Holter ECG and a stress test
were both performed in early March 2012 with negative results.
[21] On March 21, 2012 the family physician recorded that the claimant’s chief complaint
continued to be “overwhelming fatigue and weakness, with aches all over”. Under his
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assessment and treatment plan he noted that the claimant was unable to maintain any gainful
employment and that further tests were ordered. On March 22, 2012 a lab report was provided
and on March 26, 2012 a chest CT was done, with unremarkable results. In early April 2012
thyroid, abdominal and pelvic/transvaginal ultrasounds were performed. The claimant suffers
from hypothyroidism, but that condition was being successfully treated with a thyroxin
replacement.
[22] Further lab results were provided on April 18, 2012. In an office visit on April 19, 2012
the family physician recorded the claimant’s chief complaint as persisting chronic fatigue and
muscle ache. He appears to have found no tenderness across the claimant’s spine, or upper and
lower extremities. However, he assessed the claimant with “chronic fatigue” and concluded that
the claimant could not tolerate activity.
[23] On April 20, 2012 the family physician provided the employer with another medical
report, advising that the claimant was “unable to attend to even sedentary tasks at this time” and
was “unable to maintain any gainful employment”. He noted that further consultations were
being arranged. He made a referral to an internist on April 21, 2012.
[24] On May 10, 2012 L.L. wrote to the family physician asking him to provide certain
information. That letter advised The family physician as follows:
It is important that you are aware, that as [the claimant’s] employer, we have the ability to
modify her work in order to support a gradual return to work by providing such things as a
temporary reduction in duties, work hours,…Therefore as part of your assessment of [the
claimant] at her next appointment, we kindly ask that you address the questions below in as
much detail as possible…This comprehensive medical information will support [the
claimant’s] ability to continue to utilize her remaining Short-Term Sickness Credits and/or
provide me as her employer, the ability to develop an accommodation plan/return to work
that best suits her needs. Should it be determined that the medical information you provide
does not support her continued absence from the workplace, please be advised that we may
seek an Independent Medical Assessment (IME) of [the claimant].
[25] The family physician was therefore aware that the employer was willing and able to
consider modified work. In response to a question concerning the claimant’s current cognitive
abilities, the family physician responded that his “examination shows [decreased] concentrating
ability and [decreased] multitasking abilities” with “chronic fatigue and myalgia”. He noted that
a functional abilities evaluation (“FAE”) would have to be done to assess the claimant’s
limitations with respect to modified work opportunities. Similarly, with respect to the claimant’s
abilities to perform sedentary work, the family physician indicated that an FAE would be
required. He noted that consultations with an internist and an ENT specialist were being
arranged. No FAE was ever requested or arranged. No IME was sought at the time.
[26] On May 22, 2012 the family physician diagnosed the claimant with bronchitis and FM.
He prescribed Cipralex, an antidepressant used to treat FM, as well as an antibiotic for the
bronchitis. He concluded that the claimant was “unable to maintain any gainful employment at
this time”.
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[27] Also on May 22, 2012 the claimant applied for LTIP benefits. The family physician’s
attending physician statement dated June 12, 2012 provided diagnoses of FM, chronic asthma,
and sinusitis. He indicated that the claimant was able to perform sedentary duties, “mainly
sitting, occasional walking and standing”, noting that she was limited in lifting to less than 5 kgs.
He described the claimant as presenting “with severe fatigue myalgia [and decreased] cognitive
and [decreased] concentrating abilities”. He did not provide any indication of other physicians
involved in the claimant’s care.
[28] The claimant was seen in an ENT Clinic in Toronto in May 2012 and again on June 26,
2012. While confirming that the claimant had suffered and likely would continue to suffer from
chronic changes in her respiratory mucosa and that she had had some acute infection, those
chronic symptoms were not suggested to be seriously limiting her function and suggestions for
symptom management were made.
[29] An internist saw the claimant on July 9, 2012. His report noted that, on “examination of
the skeletal system, she had several tender points, especially over the head and neck and the back
area”. He concluded that she “most likely has underlying Myofascial Pain
Syndrome/Fibromyalgia” and that her symptoms seemed to be improving on the Cipralex.
[30] The claimant was phone interviewed by GWL on July 16, 2012. She indicated significant
restrictions with respect to ADLs and sleep and reported that the Cipralex helped to “make the
pain bearable”. It was noted that she had not been seen by a rheumatologist, nor had had a
neurological assessment.
[31] Also in July 2012 the claimant was tested for Lyme disease and underwent regular breast
cancer screening, both with negative results.
[32] On July 24, 2012 the family physician completed an attending physician statement for
President’s Choice Financial, wherein he indicated that the claimant had no cognitive limitations,
but had severe functional limitations with respect to driving, walking, standing, climbing, sitting,
bending, and lifting. There appears to be some inconsistency between this report and the report
to GWL with respect to the claimant’s cognitive abilities. The claimant also reported no issues
with driving.
[33] On August 29, 2012 GWL denied the claim on the basis that, although the claimant
exhibited some symptoms, the medical information did not support a severe and debilitating
medical condition, and that it did not support restrictions, limitations and a severe functional
impairment that would prevent her from performing the essential duties of her own occupation.
[34] The family physician saw the claimant again on August 27, 2012 and on October 2, 2012.
He further prescribed Celebrex for pain management and also treated the claimant for acute
asthma.
[35] On October 6, 2012 The family physician responded to the employer’s letter of
September 18, 2012 indicating limitations and restrictions as “severe fatigue’, “general myalgia”
and “recurrent asthma, shortness of breath”, further indicating all as temporary limitations with
an indeterminate prognosis for improvement. He agreed that an FAE would assist the employer
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in determining the claimant’s current cognitive and physical abilities for returning to work and
confirmed that the claimant could participate in such an assessment.
[36] On October 10, 2012 further thyroid investigation was recommended following an
ultrasound. That condition appears to be managed. A spinal ultrasound done on October 29, 2012
showed borderline disc space narrowing at L2-3 and L3-4.
[37] In an attempt to find answers, the claimant chose to obtain a private assessment through
MedCan. Its comprehensive health assessment report dated November 29, 2012 found high
levels of stress, no active joints, normal musculoskeletal exam and leg strength. However,
because of the complaint of generalized pain and excessive fatigue, the claimant was referred to
a rheumatologist. Dr. Ali saw her on December 19, 2012. He found that:
Clinically there is no evidence of any active joint disease. There is no joint effusion. She
had a normal power exam. Reflexes were normal. She is tender over 18 point [sic] of
fibromyalgia. Chest exam was normal. She had normal heart sound.
Clinically I think the most likely diagnosis on this lady is chronic fatigue
syndrome/fibromyalgia however I would like at this point to rule out any other
condition…because of possible symptoms of obstructive sleep apnea and restless leg
syndrome I will also organize for a sleep study…we started proposing treatment including
starting her on Flexeril…We had a long discussion about the management of this condition
including the non-pharmacological aspect…
[38] Dr. Li, a respirologist and sleep disorders specialist, did a sleep study on February 16,
2013. It concluded that the claimant had a reduced sleep efficiency of 66.5%.
[39] By letter dated March 14, 2013 Dr. Ali confirmed his assessment of chronic fatigue
syndrome/fibromyalgia to the family physician. He went on to state:
I was asked about the prognosis of [this] condition and it is hard to predict…Usually
response [is] very slow and it [takes] a long time for recovery. In terms of her restrictions at
work I think to do working and the employer should understand [sic] that this patient could
get easily fatigability and had a considerable amount of pain. I think she fulfilled the
definition of disability or illness because she is having difficulty in performing her activity
of daily living. I am hoping though that with treatment that she will be able to return back
to work slowly and able to function in the community.
[40] A report from Dr. Li was dated June 4, 2013. He indicated a primary diagnosis of “non-
restorative sleep due to restless legs syndrome (possibly) and fibromyalgia”.
[41] Dr. Ali saw the claimant again on June 5, 2013. In a letter of the same date, he confirmed
his diagnosis, listed the patient’s subjective symptoms as excessive fatigability, generalized body
pain, lack of energy, sleeping difficulty, and [restless] leg syndrome. He noted objective findings
included the claimant’s sleep study and a physical examination showing tenderness over
fibromyalgia points. He noted that the claimant’s symptoms were consistent with her diagnosis.
Dr. Ali concluded that, in his opinion, the claimant fell within the “own occ” definition of total
disability and that, within the limits of his experience with the claimant, had no concern
regarding her credibility. He did not speak to the “any occ’ definition.
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[42] On July 14, 2013 the family physician signed an attending physician’s statement of
continuing disability to Sun Life Financial indicating that the claimant was “not yet able to return
to work”. On August 20, 2013 he similarly completed a medical report for Service Canada. He
saw the claimant on October 21, 2013. On a visit on November 18, 2013, he recorded no
tenderness on his physical exam of the claimant.
[43] Some months later, on March 1, 2014 the claimant underwent a one-hour IME with a
physiatrist. Dr. Waseem indicated that he reviewed certain documentation provided from the
claimant’s clinical file. It does not appear that he reviewed the claimant’s position description,
but noted certain information provided by the claimant.
[44] Dr. Waseem concluded that his findings were not consistent with symptoms and
limitations as reported by the claimant. He found no serious physical impairment or abnormality,
but noted, “given the longstanding nature of her symptoms and poor response to treatments, the
likelihood for improvement is quite low”. In terms of diagnosis he stated:
Within the level of my expertise, I do not have a specific diagnosis that can explain the
constellation of [the claimant’s] subjective complaints. At best, her subjective physical
complaints may be consistent with myofascial pain. The sleep disturbance she is
experiencing may be a consequence of restless leg syndrome. If she is not sleeping well,
the lack of restorative sleep may contribute to and exacerbate her underlying subjective
pain complaints. Her chronic headaches, sinus complaints, abdominal issues, and reports of
chronic pain may be having an impact on her psychological well being.
[45] He recommended an exercise program, hydrotherapy and some massage, certain
antidepressant treatment, and psychological treatment, including cognitive behavioural therapy
and counselling. In commenting on the claimant’s ability to return to work, Dr. Waseem stated:
In my opinion, although no objective physical impairment exists at the present time, [the
claimant] is not in a position to return to work until she has had the opportunity of the
treatments outlined…
[46] In terms of whether the physical impairment was severe enough to interfere with
returning to work to any sedentary occupation, Dr. Waseem stated:
From a physical and physiologic perspective, I do not believe that her physical impairment
is at a severe enough level to interfere with returning to work at any occupation…in order
for this to be successful, I would highly recommend that my recommendations as
proposed…be initiated.
[47] On April 12, 2014 the family physician completed another attending physician’s
statement of continuing disability for Sun Life Financial, indicating again that the claimant was
not able to return to work. The family physician saw the claimant for additional sinus and
urology complaints on February 11, May 13, June 25, and July 7, 2014. The claimant was
approved for CPP disability benefits and the disability tax credit.
[48] There was no evidence that the claimant received the psychological treatment suggested
by Dr. Waseem. She did attend a psychiatric IME on September 8, 2014. Following a three and a
half hour assessment, and what appeared to be a more comprehensive review of her clinical file,
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including a review of the claimant’s position description, Dr. Sui did not detect any gross
abnormality with respect to concentration, attention and/or memory. Having administered the
Montreal Cognitive Assessment he also found no difficulty with cognition.
[49] Dr. Sui reviewed and considered the information concerning alleged work issues prior to
going on sick leave. He noted at page 16 of his report that he did “not believe there are any
workplace issues in regards to workload, job changes, problems with co-workers or supervisors,
negative evaluations or warning letters or threat of layoff or termination that are contributing to
[the claimant’s] psychiatric problems”.
[50] He found that the claimant met the criteria of an adjustment disorder with depressed
mood, chronic and concluded that, from a psychiatric perspective, the condition did not cause the
claimant to be wholly and continuously disabled from performing the essential duties of her own
occupation. He also commented on the “any occ” period.
[51] Dr. Sui does appear to have canvassed the claimant’s functional abilities in greater detail
than Dr. Waseem. He reviewed not only the claimant’s ADLs in terms of normal hygiene and
self-care, but also inquired in greater detail about meal preparation, housecleaning, shopping,
socialization, and daily routine.
[52] The claimant continued to attend the family physician on a regular basis.
DECISION
[53] This is not a case where there was no medical diagnosis. It did take some time before a
diagnosis was made. However, that will not be unusual where ongoing medical investigations
seek to rule out other possible explanations for reported symptoms. The internist concluded that
the claimant was most likely suffering from Myofascial Pain Syndrome/Fibromyalgia. The
rheumatologist, Dr. Ali, confirmed a diagnosis of chronic fatigue syndrome/fibromyalgia. Both
referred to other possible accompanying and/or complicating issues such as restless leg
syndrome and depression. Both a reduced sleep efficiency and depression were subsequently
confirmed. Dr. Waseem did not entirely discount those conclusions, when he stated that, “at best,
her subjective physical complaints may be consistent with myofascial pain”.
[54] Nor is this a case like AMAPCEO and The Crown in Right of Ontario (MCSS) and Ms.
R.G., supra. In that case, there was no medical evidence referable to the six-month elimination
period that ended in July 2008. Over the “own occ” period, there was a consult report dated
September 9, 2008 that merely queried certain test results and a November 24, 2008 letter that
advised of a possible diagnosis but no physical contraindication to Ms. R.G. performing clerical
work. Subsequently, a June 9, 2009 document advised that symptoms “would make it difficult to
perform the essential duties of her normal occupation”. Nothing further was received until the
spring of 2010. In rejecting the claim, it was found, beginning at page 33:
The Employer suggested that this claim must be denied because, in part, Ms. R.G. was not
“under the personal treatment of a physician during the entire period of total disability” as
set out in the policy. I do not deny this claim on that basis. However, I do understand the
Employer’s concern in this regard…. I also want to be clear that substantiation of total
disability is not a “numbers game”…a finding of total disability is not determined or
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dependent upon the number of tests performed or the frequency of visits to a family
physician or any other medical practitioners…
The first time indication of a physician putting their mind to the matter of Ms. R.G.’s level
of functioning is the November 24, 2008 letter…his comments…regarding her ability to
function do not lead to a finding that the claimant was wholly and continuously disabled
from performing the essential duties of her normal occupation. Indeed, with some
qualification, his view appears to be otherwise.
[55] In this case, the claimant was under the care of a treating physician at all relevant times.
And, as noted, a number of inquiries were made and tests conducted which, over time,
eliminated other possible explanations for the claimant’s symptoms.
[56] GWL found that, while the claimant exhibited some symptoms, in its view the medical
information did not support a severe and debilitating medical condition or restrictions and
limitations that would prevent the claimant from performing the essential duties of her
occupation. I note that the Plan definition does not speak to “severe and debilitating medical
condition”. The “own occ” definition speaks to being “wholly and continuously disabled by
illness…which prevents him from performing the essential duties of his normal occupation”.
[57] The employer did not take serious issue with the diagnoses in this case. It was the extent
of any resulting limitations and/or level of impairment that was in issue. Although it argued that
GWL did not dismiss the claim on the basis of subjective reporting, the employer argued that
there were no clinical findings to support impairment. That is, the employer argued that the
asserted level of impairment was based on the claimant’s self-report and was not substantiated by
clinical findings and that a subjective report of symptoms carried insufficient weight from which
to make a finding of total disability.
[58] It is a legitimate concern that self-reporting be ‘tested’ in some way. Fundamentally, that
concern goes to an issue of a claimant’s credibility with respect to that reporting, both in terms of
expertise and self-interest.
[59] The kind of evidence required to support a claim for LTIP benefits where there is a lack
of objective medical evidence of illness was recently considered in Joseph Brant Memorial,
supra. The arbitrator made three points at paragraphs 209 – 212 of the decision. First,
fibromyalgia and other conditions for which there is no objective medical test are not, ipso facto,
ineligible for compensation. Second, medical evidence based on self-report and other non-
objective medical evidence can be sufficient to prove a disability claim. Third, in the absence of
objective medical evidence of disability, the credibility of the claimant is very much in issue.
[60] These parties choose to proceed on an expedited basis and on the basis of a written record
without the full benefit of evidentiary testing provided by a more fulsome litigation process.
They are to be commended in that effort for otherwise all are left in doubt for years as to
entitlement and/or potentially accruing liability. The Joseph Brant Memorial matter, for
example, was heard over some 23 days over three years.
[61] The decision in AMAPCEO and the Crown and Ms. R.G., supra, notes at page 29:
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In its submission, the Employer also emphasized that the claimant’s symptoms are, in large
measure, subjective…. in Re JBRIC Appeal #64586 (supra) it was noted on page 13:
In this matter, as it has in the past, the Employer relied heavily on the lack of objective
evidence in suggesting that this appeal should be denied. In my view, there might well be
instances where non-subjective evidence is very difficult, if not impossible to gather. When
subjective evidence [in] these matters is accompanied by very real documented symptoms
that are interpreted by a physician and lead to a diagnosis, and a course of treatment, the
lack of objectivity can be to varying degrees depending on the facts of any particular
matter, mitigated.
[62] This is the kind of case where the gathering of objective evidence of impairment is
difficult. Short of an FAE or surveillance (both of which may have inherent limitations), one
wonders how one might objectively verify a claimant’s reporting of their level of ability when
fatigue and pain, and what might be described as a corresponding loss of stamina, is the primary
affect. It was not suggested that there were clinical tests available that had not been administered.
Nor was it suggested that the claimant was opposed to an FAE. Much rests on the clinician’s
assessment of the patient and the patient’s credibility.
[63] Fundamentally, as noted in the Joseph Brant Memorial case, one seeks to test the
credibility of the claimant’s reporting. So, for example, in AMAPCEO and The Crown in Right of
Ontario (MGS), supra, the Vice-Chair noted that the insurer had placed emphasis on the lack of
the claimant’s motivation to return to work. The Vice-Chair concluded at paragraph 30, that:
In my view, all of the medical specialists, including her family doctor, psychiatric
consultant and therapists have confirmed her symptoms, confirmed her continuing quest for
treatment and motivation to recover from her medical issues and return to work.
[64] That is, the report of subjective symptoms was received, assessed clinically, and a
diagnosis and treatment plan was developed as a result. That occurred in this case. The family
physician conducted a preliminary investigation. He then made appropriate referrals. The
claimant undertook a private assessment and was able to access an assessment and treatment by
the rheumatologist, who also made further appropriate referrals. The family physician, the
internist, Dr. Ali, and Dr. Sui all received the claimant’s self-reported symptoms, undertook an
assessment within their field of expertise, and drew conclusions concerning the claimant’s
medical condition. Dr. Ali noted that the claimant’s subjective report was consistent with his
clinical findings. Dr. Waseem did not contradict the conclusions with respect to diagnosis.
[65] The family physician, Dr. Ali, and Dr. Sui also assessed the claimant’s report of
limitations and daily activity levels. Those physicians were aware that the claimant’s position
was sedentary. The family physician was also aware that the employer was willing and able to
accommodate the claimant by modifying the work and/or the working conditions.
Notwithstanding, he was consistently of the view that the claimant was unable to engage in
employment. Nor do the family physician’s reports and notes suggest any particular attempt to
advocate for the claimant. Dr. Ali noted the claimant’s report that she had no energy to perform
her “regular admin work and even simple household duties”. He concluded that the claimant’s
condition met the definition of total disability. Dr. Sui recorded the claimant’s detailed report of
ADLs and daily routine, recording that the claimant was completing at most two tasks per day
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and sleeping excessively. Dr. Sui’s conclusion that the claimant was not precluded from working
was limited to his area of expertise regarding her psychiatric condition.
[66] While some of this reporting was not as fulsome as one might wish for, that, in and of
itself, cannot be cause for declining to assign any weight to the evidence. The insurer was in a
position to request further information or testing. I must assess the record before me. Although
they recognized the subjective nature of the reporting, there was no indication of concern
regarding malingering or exaggeration of symptoms by the claimant by these medical
practitioners. Dr. Waseem reported that he did not specifically explore the claimant’s motivation
to return to work or factors that might be affecting her return to work, while concluding that she
was not in a position to return to work until she had had the opportunity to participate in the
treatments he recommended.
[67] What of other evidence to test the claimant’s credibility? In rejecting the claim, GWL
relied on information that appears to have been entirely untested. By letter dated August 29,
2012, GWL advised the claimant that it was denying her claim for LTIP. It noted that while the
claimant exhibited some symptoms, the medical information, in GWL’s view, did not support a
severe and debilitating medical condition or restrictions and limitations that would prevent the
claimant from performing the essential duties of her occupation. The letter went on to state:
It is also noted that employment issues may be causing or contributing to your absence
from work. Please be advised that these issues are not considered when assessing disability.
[68] However, these asserted “employment issues” were considered when GWL assessed
disability. In a Medical Consulting Review completed by Dr. Grossman on August 10, 2012 he
explicitly stated, “employment issues appear to play a pivotal role here”. That conclusion was
also provided by the case manager in her referral note to Dr. Grossman. In assessing the medical
evidence, Dr. Grossman also relied on a report from the claimant’s manager that the claimant
exhibited no behavioural changes at work prior to going off work, as well as that the claimant
power walked at lunch, the latter found to be consistent with excellent cardiac test results
reviewed by Dr. Grossman. Dr. Grossman concluded that the claimant’s restrictions and
limitations were “self-determined and self-imposed”.
[69] GWL formed its conclusion with reference to information it obtained from L.L. in an e-
mail dated July 16, 2012. That information was not tested in any way. So, for example, the
manager stated, “there were absolutely no changes in her behaviour that caused me concern other
than her struggle to meet performance expectations”. No information about the “struggle to meet
performance expectations” was provided or requested, information from which one might be
able to assess whether or not any such issues could also be explained, in whole or in part, by the
onset of illness. The manager reported her concern in circumstances where the claimant’s
performance appraisals back to 2003 were exemplary.
[70] Similarly, the claimant was described as “having missed a lot of work in the past”,
suggesting long-term attendance issues. The claimant was absent for an approved three-month
period between May and August 2005 following her father’s death and her mother’s diagnosis of
cancer. Between January and June 2011 she was absent for 18.5 days. That record appears to
show attendance ‘issues’ beginning in 2011, a factor equally consistent with the claimant’s
assertion that she started experiencing health issues in 2011. The manager “believed” that the
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claimant had cleaned out her desk on her last day, suggesting that she had no intention of
returning to work. Both of those assertions were denied by the claimant in her statement.
[71] Information about workplace issues is relevant to assessing a claimant’s credibility and
their claim. But that information should also bear some hallmarks of reliability. While it may be
more or less important depending on the case, it was relevant here given the nature of the claim.
One only need ask whether the case manager’s and Dr. Freedman’s views might have been more
circumspect had they been told that the claimant was an excellent employee, had no performance
issues, and had had excellent attendance over her almost thirteen years of employment with the
exception of the year immediately prior to leaving the workplace.
[72] According to the claimant’s performance appraisals, L.L. managed the claimant from
April 1, 2011 until the claimant left work in January 2012, approximately ten months. During
that period she completed an appraisal dated July 22, 2011 that indicated only that the claimant
was to receive training in certain accounting and financial applications in order to provide
support for the Operations Coordinator. No performance issues were recorded. The immediately
preceding performance appraisal dated only four months earlier at March 31, 2011, completed by
the predecessor manager, indicated that the claimant “provided great support to the Regional
Operations Coordinator and her manager to ensure our fiscal commitments were met”. As noted,
the earlier performance appraisals were all very complementary of the claimant’s work and work
ethic, and also record the claimant’s commitment to fitness and wellness and that she is
“straightforward” and “honest” (2007-2008 appraisal). That evidence of evaluation paints quite a
different picture of the claimant than the untested comments of L.L.
[73] Based on the evidence before me, I am not persuaded that workplace issues had a bearing
on the claimant’s departure from work or on her motivation to return to work. The longer history
of her performance appraisals indicate a valued, hard working employee who had successfully
coped with change long prior to her departure from work in 2012. Those appraisals are also
consistent with the claimant’s assertions that she previously led a physically active lifestyle,
including leading a wellness program for fellow employees. Dr. Sui concluded that workplace
issues were not affecting the claimant’s psychiatric problems. There was no other evidence
challenging the claimant’s credibility.
[74] Having regard to the evidence of the family physician, Dr. Ali, and Dr. Sui that supported
the claimant’s self-report, to the finding that workplace issues had no bearing on the claimant’s
departure from work or motivation to return to work, and there being no other evidence
challenging the claimant as other than credible, I find the claimant to be credible and, further,
that reliance may therefore be placed on her self-report of limitations.
[75] In the City of Toronto, supra, at paragraph 86, it was found that, “[t]he fact that the
grievor is able to engage in certain activities of daily living is not evidence from which one may
conclude that she is able to function in employment”. Dr. Sui’s recording of the claimant’s
activities of daily living and daily routine at pages 5-6 of his report indicate a level of activity
inconsistent with any reasonable ability to engage in the essential duties of the claimant’s
position. While there will always be doubt in cases such as this, I am persuaded, on a balance of
probabilities, that the claimant was wholly and continuously disabled from performing the
essential duties of her occupation during the relevant period of the “own occ” claim.
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The procedural issue
[76] Whether or not it goes to my jurisdiction, I am of the view that the issue of the claimant’s
entitlement to benefits under the “any occ” definition of the Plan ought to be remitted to the
usual process for consideration. There was no suggestion that the Committee gave that issue its
full consideration. In addition, while some medical practitioners were asked to direct their minds
to that issue, some were not. It is only appropriate that the parties have a full and fair opportunity
to assess that question prior to having any final and binding determination made by a third party.
Conclusion
[77] In the result, I find that the claimant, C.F., was entitled to LTIP benefits for the “own
occ” period under the Plan. I direct the employer to ensure that those benefits are paid
appropriately. I will remain seized with respect to any implementation issue arising from the
determination that the claimant was entitled to LTIP benefits for the “own occ” period. I remit
the matter of benefits for the “any occ” period to the parties.
Dated at Toronto, Ontario this 25th day of March 2015.
Marilyn A. Nairn, Vice-Chair