HomeMy WebLinkAbout2000-15902 Benefits Claimant 00-08-03 Decision
In the matter of an Appeal
Before
The Subcommittee of the
JOint Insurance Benefits Review Committee
Regarding Claim # 15902
Chair: Felicity D. Briggs
Appearing for the Union: Don Martin
Appearing for the Em ployer: Yasmlna Mohamed
1
Included In the most recent collectIve agreement between the partIes are the folloWIng
provIsIOns
Article 22 - Grievance Procedure
Article 22.9 - Insured Benefits Grievance
229 1 An allegatIOn that the Employer has not provIded an Insured benefit
that has been contracted for In thIS Agreement shall be pursued as a
Umon gnevance filed under ArtIcle 22 13 (Umon Gnevance)
1 Any other complaInt or dIfference shall be referred to the Claims
ReVIew SubcommIttee of JOInt Insurance Benefits RevIew
CommIttee (JIBRC), establIshed under AppendIx 4 (JOInt Insurance
Benefits RevIew CommIttee), for resolutIOn.
Appendix 4
JOINT INSURANCE BENEFITS REV IEW COMMITTEE
1 Name of Committee
The CommIttee shall be referred to as the JOInt Insurance Benefits RevIew
CommIttee
2. Purpose of Committee
The purpose of thIS CommIttee IS to facIlItate commumcatIOns between the
Employer and the OPSEU on the subJect of Group Insurance, IncludIng BaSIC LIfe
Insurance, Supplementary LIfe Insurance Extended Health Insurance Long Term
Income ProtectIOn Insurance, and such other negotIated benefits as may from tIme
to tIme, be Included In the Group Insurance Plane
It IS understood that the Group Insurance benefits to be proVIded to employees and the
cost shanng arrangements between the Employer and ItS employees shall be as set out
In any applIcable collectIve agreement or arbItratIOn award, and the matters for
conSIderatIOn by thIS CommIttee shall be only as set out In these terms of reference
3 Composition of Committee
The CommIttee shall be composed of an equal number of representatIves from the
Employer and from the OPSEU wIth not more than eIght (8) representatIves In
total At meetIngs of the CommIttee, each party may be accompamed by an
Actuary to proVIde techmcal advIce and counsel
2
4 Duties of the Committee
The dutIes of the CommIttee shall consIst of the folloWIng
- Development of the specIficatIOns for the publIc tendenng of any negotIated
benefits whIch may be Included In the Group Insurance Plan (to cover the
bargaInIng umt only)
- DetermInatIOn of the manner In whIch the specIficatIOns wIll be made avaIlable
for publIc tendenng;
- ConsIderatIOn and eXamInatIOn of all tenders submItted In response the
specIficatIOns for tender and preparatIOn of a report thereon,
- RecommendatIOn to the Government of Ontano on the selectIOn of the Insurance
carner or carners to underwnte the Group Insurance Plans,
- ReVIew of the semI-annual finanCIal reports on the Group Insurance Plan, and
ReVIew of contentIOUS claims and recommendatIOns thereon, when such claim
problems have not been resolved through the eXIstIng admInIstratIve procedures
The speCIficatIOns for tender wIll descnbe the benefits to be proVIded, the cost
shanng arrangement between the Employer and ItS employees, the past finanCIal
hIStOry of the Insurance plans, the employee data, the format for the retentIOn
IllustratIOn for each coverage and the finanCIal reportIng reqUIrements Tenders
shall be entertaIned by the CommIttee from any IndIVIdual Insurance carner actIng
solely on ItS own behalf ThIS shall not preclude such carner from arrangIng
reInsurance as may be necessary
The basIs for recommendatIOn of an Insurance carner(s) wIll Include the abIlIty of
the carner(s) to underwnte the plan, complIance of the carner's quotatIOn wIth the
speCIficatIOns for tender the carner's servIce capabIlItIes and the expected long
term net cost of the benefits to be proVIded.
1 Experience Review
2. Claims Review Subcommittee
(a) There shall be a subcommIttee whose mandate IS to reVIew and make
decIsIOns on, complaInts or dIfferences InvolvIng the demal of Insured
benefits under the Central CollectIve Agreement, when such Issues have
not been resolved through the eXIstIng admInIstratIve procedures, save and
except a complaInt or dIfference ansIng under ArtIcle 22 9 1 (Insured
Benefits Gnevance) of the Central CollectIve Agreement. The
subcommIttee shall be composed of two (2) representatIves selected by the
Employer two (2) representatIves selected by OPSEU and an Independent
thIrd party who IS agreed to by both partIes
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(b) Appropnate ImpartIal medIcal consultants shall be avaIlable to the
subcommIttee In an advIsory capacIty to provIde InfOrmatIOn on the nature
of specIfic Illnesses or dIsabIlItIes
(c) MembershIp on the subcommIttee shall be for one (1) year penod, and IS
renewable at the dIscretIOn of the nomInatIng party or partIes In the case of
the renewal of the term of the Independent thIrd party
(d) DeCISIOns of the subcommIttee are final and bIndIng.
(e) The fees and expenses of the medIcal consultants referred to In clause (b)
and the Independent thIrd party referred to In clause (a) shall be dIvIded
equally between the Employer and the Umon.
Article 42 - Long Term Income Protection
Total dIsabIlIty means the contInUOUS InabIlIty as the result of Illness, mental
dIsorder or InJury of the Insured employee to perform the essentIal dutIes of hIS or
her normal occupatIOn dunng the qualIficatIOn penod, and dunng the first twenty-
four months of the benefit penod and thereafter dunng the balance of the benefit
penod, the InabIlIty of the employee to perform the essentIal dutIes of any gaInful
occupatIOn for whIch he or she IS reasonably fitted by educatIOn, traInIng or
expenence
Subsequent to the sIgmng of thIS collectIve agreement the partIes negotIated and
sIgned terms of reference regardIng the establIshment of a subcommIttee to deal
wIth dIsputes between the partIes regardIng Long Term Income ProtectIOn
(hereInafter referred to as "L TIP") That memorandum stated
JIBRIC CLAIMS REVIEW SUBCOMMITTEE
TERMS OF REFERENCE
AUTHORITY
The JIBRC subcommIttee IS establIshed under ArtIcle 2292 and AppendIx 4 of
the collectIve agreement between The Crown In RIght of Ontano and the Ontano
PublIc ServIce Employees Umon.
PURPOSE OF SUBCOMMITTEE
To reVIew and make decIsIOns on appeals from employees on claims InvolvIng the
demal of Insured benefits under the collectIve agreement whIch have prevIOusly
been removed from JIBRC
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REFERRAL TO THE SUBCOMMITTEE
Employees wIth claims that have been removed from JIBRC wIll be notIfied of
such, In a tImely manner by letter (referred to as the "NotIce Letter") to theIr last
known address
An employee whose claim has been removed, has 45 days, from the date of the
notIce letter to submIt a request In wntIng to OPSEU askIng that OPSEU refer
theIr case to the subcommIttee ThIS letter must be copIed to the Management Co-
Chair of the JIBRC
OPSEU has 90 days from the date of the notIce letter to advIse the Management
Co-Chair of JIBRC of theIr decIsIOn to agree or deny the request to appeal If
notIce IS not receIved from OPSEU wIthIn 90 days from the notIce letter then the
claim wIll be deemed to be wIthdrawn.
SCOPE OF COMMITTEE
The SubcommIttee represents the final stage In the appeal process
The SubcommIttee wIll clanfy medIcal eVIdence as needed, wIth a medIcal
consultant agreed to by both MBS and OPSEU
DeCISIOns of the SubcommIttee are final and bIndIng.
Upon receIpt of the decIsIOn, a Memorandum of Settlement (as attached) wIll be
prepared and sIgned by the partIes and forwarded to the Insurer
SUBCOMMITTEE MEMBERSHIp.
The subcommIttee wIll conSIst of resource representatIves from OPSEU and MBS
and an Independent thIrd party "Chair" to be named by MBS and OPSEU
ROLE OF THE CHAIR
To reVIew case representatIOns from MBS and OPSEU
To make a determInatIOns In wntIng wIth respect to each case DeCISIOns must be
In accordance wIth the OPS CollectIve Agreement between the Employer and
OPSEU and conSIstent WIth the group Insurance plans In place at the tIme facts
gIVIng nse to the dIspute arose
ROLE OF MEDICAL CONSULTANTS
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Appropnate ImpartIal medIcal consultants wIll be agreed by the partIes and shall be
avaIlable to the SubcommIttee In an advIsory capacIty If the partIes cannot agree
on a medIcal consultant, the Chair may call on a consultant from a roster supplIed
by the College of PhysIcIans and Surgeons
The medIcal consultants wIll provIde InformatIOn on the nature of specIfic Illnesses
or dIsabIlItIes
The Chair may request an InterpretatIOn of medIcal reports, test results and other
medIcal documentatIOn on file
The medIcal consultant IS not a member of the commIttee and wIll not provIde an
OpInIOn related to a decIsIOn on the appeal
FEES
Fees and expenses, as approved by the partIes, of medIcal consultants and the Chair
shall be dIvIded equally between MBS and OPSEU
FORMA T OF MEETINGS
Each appeal wIll be dealt wIth separately
Both partIes, through theIr representatIves wIll provIde, full dIsclosure of the
supportIng documentatIOn upon whIch they Intend to rely ThIS dIsclosure wIll take
place at least two weeks In advance of the meetIng of the subcommIttee dealIng
wIth the subJect matter of the appeal
If the Chair reqUIres clanficatIOn of medIcal eVIdence, a meetIng of the
SubcommIttee wIll be arranged wIth a medIcal consultant agreed to by both MBS
and OPSEU or faIlIng such agreement, wIth a medIcal consultant called by the
Chair
MBS and OPSEU wIll JOIntly present a statement of agreed upon facts (to the
extent possIble) for the appeal to the Chair
ASIde from the ImpartIal medIcal consultant dIscussed above, no other wItnesses
wIll be called, except by request of the Chair However the IndIVIdual claimant
wIll be allowed to file a wntten statement In lIeu of testIfYIng. If the IndIVIdual
claimant chooses to file a statement It must be provIded to the Management Co-
Chair of JIBRC at the same tIme as OPSEU's request for appeal MBS has the
nght to Introduce a wntten response to thIS statement.
OPSEU wIll present ItS posItIOn on the case wIth supportIng arguments to the
Chair MBS wIll present ItS posItIOn on the case wIth supportIng arguments to the
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Chair and wIll respond to OPSEU's posItIOn. OPSEU wIll have nght of reply
PresentatIOn by both partIes wIll be based upon the InformatIOn/record on file
before the Insurance carner at the tIme the matter IS removed from the JIBRC the
employee statement If any and MBS's response to the statement.
EIther party may If necessary request the attendance of the claimant, who shall be
allowed a leave of absence wIthout pay wIth no loss of credIts, to attend the sub-
commIttee meetIng as an observer only
The Chair wIll render a wntten decIsIOn wIth supportIng ratIOnale
FREQUENCY OF MEETINGS.
On an as needed basIs as determIned by MBS and OPSEU JOIntly
The partIes agree to these Terms of Reference In support of the ImplementatIOn of
ArtIcle 22 9 2 and AppendIx of the collectIve agreement.
It was preVIOusly agreed by the partIes that a decIsIOn should sImply IndIcate whether a
claim was properly or Improperly demed. The Chair IS to refraIn from elaboratIng on the
quantum of the remedy but rather remaIn seIzed. Subsequent to the Issuance of the
decIsIOn the partIes wIll negotIate and execute a memorandum of agreement that wIll
Include the appropnate remedy
Dunng the term of the prevIOUS collectIve agreement, the partIes attempted to resolve
these dIsputes between themselves Not surpnsIngly there were a number of Instances
when consensus was not achIeved. Those matter sImply remaIned unresolved. Those
outstandIng matters are now beIng brought forward before the subcommIttee as set out
above
In thIS case, the partIes proVIded an agreed statement of fact that stated
1 Ms lB started work wIth the government on August 23 1990
2 SometIme In 1990 and/or 1991 she suffered a work related aCCIdent to her back. It IS
not known whether or how long she may have been away from work.
3 In relatIOn to thIS LTIP claim, she contInued at work as a file clerk untIl November 6
1995
4 Ms lB applIed for LTIP benefits on February 23 1996
5 She attempted a gradual return to work In Apnl, 1996 but It was unsuccessful
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6 Short term sIckness benefits expIred on May 8 1997
7 Her L TIP claim was approved on August 2, 1996
8 Benefits were termInated on June 30 1997
9 Ms lB attempted a return to work from June 2, to July 30 1997
10 Benefits were re-Instated untIl October 21 1997 on concerns expressed by the
employer
11 Ms lB made three appeals agaInst demal of her benefits
12 The last appeal was demed on May 28 1999
13 The case was removed from the table at JIBRC on June 25 1999
14 Ms lB seeks benefits from October 21 1997 and contInuIng.
Ms lB has been under the care of Dr C J a specIalIst In phYSIcal medICIne and
rehabIlItatIOn SInce October 1995 In a January 1996 statement to Workers' CompensatIOn,
he stated that Ms lB' s dIagnosIs was "fibromyalgIa - lumbar/sacral paIn" He IndIcated
that she was to "avOId lookIng up reachIng up prolonged workIng down, workIng over
shoulder or below Waist heIght, not lIftIng 1 0 kgs, no long standIng, SIttIng or walkIng" In
hIS ImtIal attendIng physIcIan's report to ManulIfe, he stated that her dIagnOSIS was,
"fibromyalgIa, cervIcal lumbar straIn/spraIn" In that assessment he also stated, In part
. she IS unable to pursue the phYSIcal aspects of her Job
. she should look at more sedentary work for whIch there IS freedom to move
frequently
. she needs some aSSIstance findIng a J ob whIch IS SUItable
. she has maJor problems assocIated WIth chromc paIn In her neck, shoulders and
back. She IS very short and finds the repetItIve reachIng, pullIng, pushIng,
bendIng and lIftIng too much for her She has the capabIlIty of beIng retraIned
to a less phYSIcal Job whIch IS more appropnate for her phYSIcal condItIOn. I
thInk thIS need to be looked Into
In Apnl of 1996 Ms lB attempted to gradually return to work. Some accommodatIOns
were made to aSSIst In thIS return but to no avaIl On May 2, 1996 Dr C.J wrote the
folloWIng
Ms lB has tned to return to work and she has more paIn. The return IS not gOIng
to work. I don't see that she can do her Job even WIth modIficatIOns She wIll need
to be retraIned.
When her LTIP claim was beIng ImtIally assessed by ManulIfe, Dr C J wrote a lengthy
consultatIOn note The last paragraph of that report IS InformatIve It stated
Ms lB has a chromc paIn problem assocIated WIth a sleep dIsorder whIch has
been present for years She has been aggravated WIth phYSIcal actIvIty espeCIally
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workIng over her head and pullIng and pushIng. GnppIng and lIftIng also bothers
her She has a grade XII educatIOn and has some courses In college She has
nothIng that IS completely transferable Into a Job but I feel wIth some vocatIOnal
counsellIng for dIrectIOn as well as some refined retraInIng, she would be able to
handle a Job where she would be able to change posItIOns frequently not use
computer or wnte constantly and also use a phone She IS personable as well and I
feel she wIll eventually be employable In my OpInIOn, the Job that she was dOIng IS
not sUItable for her
Her L TIP claim was approved In August of 1996 and shortly thereafter ManulIfe decIded
to retaIn the servIces of SIbley & ASSOCIates (hereInafter referred to as "SIbley") to
perform a functIOn capaCIty assessment of the claimant and to assIst In the process of
gettIng her back to work. In theIr ImtIal correspondence SIbley stated the folloWIng, In
part
. The pnmary goal for rehabIlItatIOn IS to return Ms lB to her pre-dIsablIty
occupatIOn as a FIle Clerk wIth her present employer
. Should a return to the present occupatIOn not be feaSIble, the employer has a
few temporary placements, however thIS would be a secondary goal
SIbley contInued to meet and work wIth the claimant and send updates to ManulIfe
regardIng progress A number of suggestIOns were made to the employer for physIcal
workplace changes to assIst In the claimant's return to work. Those alteratIOns, whIch
were not InsIgmficant, were made and the claimant attempted another return to work In
early 1997 It should be noted that the employer was very SupportIve and made a SIncere
and concerted effort to assIst the claimant In a return to the workplace A detaIled plan for
return was developed and sent to both the claimant and Dr Johnson for theIr approval and
sIgnature It IS InterestIng to note that neIther agreed In wntIng to the plan.
NotwIthstandIng that lack, Ms lB was at the workplace seven days In February one day
In March. Dunng the attempted reIntegratIOn Into the workplace, SIbley contInued to work
wIth the claimant.
The claimant was absent from work the month of Apnl 1997 Ms lB stated In a form
requestIng contInuIng benefits dated Apnl 9 1997 "I am able to work, but not as a File
Clerk as I can't stand for long penods of tIme or lIft" On the same day Dr C.J IndIcated
to ManulIfe that the claimant IS "draIned by her paIn" He also reported that he had
9
requested an occupatIOnal therapIst to VISIt her at her home to assIst WIth any stressors
and needs wIthIn her home envIronment.
A meetIng was arranged at the workplace on Apnl 30 1997 whereIn the claimant, Dr
Johnson, SIbley and employer representatIves dIscussed another return to work plan.
UltImately a plan that both the claimant and Dr C J approved of was determIned and
Ms lB returned to work In May of 1997 However she only worked twelve hours In
total In that month. In the first week of June she worked three half days and that pattern
was contInuIng for the second week when she pulled a muscle and was absent for a few
days She worked a total of 55.25 hours In June
On June 16 1997 an occupatIOnal therapIst attended at the worksIte to establIsh whether
further modIficatIOns could be made to assIst the claimant In her return to work. It was
said In a report that "there are no other modIficatIOns that thIS therapIst can suggest to
Increase Ms lB 's prodUctIVIty and Increase her comfort whIle performIng the filIng and
sortIng dutIes"
Another meetIng was held wIth Dr C J the claimant and SIbley Dr C J had further
recommendatIOns and both he and the claimant eventually agreed that she would agaIn
attempt to return to work.
On June 17 1997 ManulIfe wrote to the claimant InformIng that her benefits were to be
dIscontInued. In that letter It was stated
On contact wIth your employer however we were advIsed that you have not
followed through wIth the rehabIlItatIve regImen, as recommended and approved
by Dr Johnson. GIven the fact that you were medIcally released to engage In a
graduated return to work program and the result of the Job SIte AnalYSIS and
FunctIOnal CapacItIes Assessment, we have determIned that you have not been
complIant wIth the return to work mandate, as agreed upon by you and all other
partIes Involved In your case
On June 24 1997 Dr C.J sent a further attendIng physIcIan's form whereIn he stated
. she needs more sedentary work wIth frequent changes In posItIOns
10
. she has been tryIng to go back to her Job Her nght arm and back have had
contInued flare ups whIch has (SIC) made work return dIfficult. I am not sure
she wIll be successful In her attempt. She IS contInuIng to try
On June 16 1997 the claimant saw a rheumatologIst for a consultatIOn. In hIS report, he
stated, In part
I thInk that gIven her hIStOry the most lIkely dIagnosIs IS FIbromyalgIa. It IS
becomIng IncreasIngly recogmzed that patIents may present WIth FIbromyalgIa
and stIll have tenderness at the control sItes ThIS does not therefore exclude the
dIagnosIs of FIbromyalgIa, If her other hIStOry IS compatIble wIth It. I thInk that
she has got a Chromc PaIn Syndrome In the back, and head and neck. ThIS would
be lIkely aggravated by her current work settIng.
On August 8 1997 after Ms lB had agaIn ceased workIng, Dr C.J wrote In a
physIcIan's statement to ManulIfe
. the more physIcal actIVIty Ms lB does, the more paIn she has It seems to be
cumulatIve
. all file work actIVItIes Increase her paIn and fatIgue
. she IS unable to tolerate her present level of actIVIty A vocatIOnal rehab
program needs to be developed for her to see If she IS employable In any
occupatIOn
. Ms lB gave a work tnal a sIgmficant try She has not been found
competItIvely employable In thIS Job She reqUIres a look at other more
SUItable work. Her condItIOn wIll not change conSIderably so she wIll have to
find If she IS capable of any actIVIty at a relIable and dependable level
Dunng August of 1997 there was correspondence back and forth between employer
representatIves and Dr C.J Rather than set that dIscussIOn out In detaIl, I wIll reproduce
part of a letter wntten on September 12, 1997 from the employer's human resources
representatIve to ManulIfe I have found that correspondence to be most InfOrmatIve The
letter stated, In part
From both the employees perspectIve and our own, It was clear that Ms lB was
not capable of performIng the core dutIes of the Job on a full tIme baSIS by the
tIme plan was neanng completIOn. Ms lB was havIng dIfficulty In COpIng WIth
the volume of work and was expenenCIng a vanety of physIcal problems whIch
she was documentIng on a dally baSIS The faIlure to meet expected levels by the
end of the week of July 21 on ItS own would not normally have been suffiCIent
reason for us to suspend the return to work however thIS IS the thIrd "reVISIOn" to
the return to work plan whIch has In fact spanned over four months and appeared
we were not seeIng much sIgmficant progress towards a return to full capaCIty
despIte the accommodatIOns made to the Job and the Job sIte In addItIOn, dunng
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thIS last phase of the plan, Ms lB was able to adhere to the schedule on a more
regular basIs wIth a mImmum number of absences, so we felt that thIS penod of
work dId more accurately reflect on her capacIty to perform the dutIes of her Job
In the file room
In the course of dIscussIOns wIth the employee regardIng the progress of the return
to work plan, It became clear that (SIC) were some sIgmficant InCOnsIstencIes
between what we had been led to belIeve were a) the restnctIOns surroundIng the
return to work and b) Dr C J ' s prognosIs regardIng Ms lB' s ultImate abIlIty to
return to full dutIes on a full tIme basIs These InCOnsIstencIes started wIth the
assurance of both Barbara El Farr and Mindy AZIZ that there were no "condItIOns"
on the return to work other that (SIC) the tImetable set out In the plan, whIch
conflIcted wIth the InfOrmatIOn we were gettIng from the employee and Dr C.J
that had further physIcal restnctIOns placed on the actIvItIes of Ms lB whIch
would preclude her from performIng the full range of dutIes and volume of work
reqUIred by the J ob
More sIgmficantly we now understand that Dr C J was not In fact IndIcatIng
that he dId feel that Ms lB was In fact capable of returnIng to her dutIes on a full
tIme basIs but that he was only supportIng the attempted return on a "tnal" basIs
but there was consIderable uncertaInty as to whether or not she could return. In
fact, In hIS letter to us dated August 11 he IndIcates that as early as June of 1996
he wrote to Karen LIntlop IndIcatIng that the Job In the file room was SUItable
gIven Ms lB's condItIOn but that gIven there were no other Job avaIlable a
decIsIOn was made to Involve a rehabIlItatIOn consultant In order to attempt a
return to the file clerk Job He notes that there were sIgmficant modIficatIOns and
accommodatIOns made at the workplace but that Ms lB was not able to "tolerate
the process of return to work even from the start" and that "It IS of no surpnse that
the attempt was not successful" SInce she had not had any appreCIable response to
the treatment of her underlYIng condItIOn(s) It now appears that these condItIOns
Include a dIagnosIs of fibromyalgIa whIch Dr C.J IndIcates appears to be (SIC)
have sIgmficant Impact on Ms lB ' s abIlIty to perform the physIcal aspects of her
Job
In hIS letter Dr C J IndIcates on a number of occaSIOns that he was told that there
were not other optIOns avaIlable to Ms lB In regards to more "sUItable"
employment. It would be normal In most LTIP cases to concentrate on a return to
the pre-InJury Job up to the pOInt of defimtIOn change, however I am concerned
that the messagIng to Dr C.J seems to have been that there were no other optIOns
avaIlable From the employers perspectIve we are of course oblIged to consIder
any accommodatIOns short of undue hardshIp to accommodate employees wIth
dIsabIlItIes In the case of Ms lB we were takIng our lead from the work beIng
done by ManulIfe and were under the ImpreSSIOn that a return to the pre-InJury Job
was a reasonable goal, whIch In turn we were supportIng through a vanety of
accommodatIOns If In fact thIS was not the case and we had been asked to explore
other opportumtIes for Ms lB we would have done so
On October 3 1997 ManulIfe sent a letter to the employer that said, In part
12
However In lIght of your concerns wIth respect to Ms lB ' s apparent InabIlIty to
perform her Job despIte the modIficatIOns camed out we are wIllIng to allow for a
three month benefit extensIOn, In addItIOn to her July 1997 calculated rehab
benefit entItlement, to be paid In advance, In order to provIde her wIth a sUItable
penod of tIme In regard to her Job search endeavors
We have also conducted a transferable skIlls analysIs In order to IdentIfy other
Jobs for whIch Ms lB would be qualIfied, based on her educatIOn, traInIng and
work expenence ThIS analysIs has IdentIfied thIrty-eIth other Jobs for whIch Ms
lB would be sUIted. The results of thIS analYSIS IS enclosed for your perusal
Ms lB 's benefits were dIscontInued October 21 1997 The Issue for me to determIne IS
whether the claimant was totally dIsabled from her own occupatIOn as of October 21
1997 It IS useful to set out agaIn the defimtIOn of total dIsabIlIty
Total dIsabIlIty means the contInUOUS InabIlIty as the result of Illness, mental
dIsorder or InJury of the Insured employee to perform the essentIal dutIes of hIS or
her normal occupatIOn dunng the qualIficatIOn penod, and dunng the first twenty-
four months of the benefit penod and thereafter dunng the balance of the benefit
penod, the InabIlIty of the employee to perform the essentIal dutIes of any gaInful
occupatIOn for whIch he or she IS reasonably fitted by educatIOn, traInIng or
expenence
In my OpInIOn, a reVIew of the eVIdence In thIS case can only lead to a findIng that the
claimant was totally dIsabled at the tIme her LTIP benefits were dIscontInued. Indeed,
there can be lIttle doubt. She made three attempts to return to her regular occupatIOn
despIte the fact that her rehabIlItatIOn speCIalIst, Dr C J doubted from the outset that
she would be able to do the work. DespIte those genUIne attempts, she sImply could not
"perform the essentIal dutIes" of her normal occupatIOn, accordIng to all accounts
IncludIng her employer
On the face of the documents It appears that thIS matter was dealt wIth by ManulIfe as If
the claimant IS In the penod for whIch she must be dIsabled from "any gaInful
employment" In the October 3 1997 letter to the employer representatIve set out above,
In part, ManulIfe stated the three month benefit extenSIOn was "In order to provIde her
WIth a sUItable penod of tIme In regard to her Job search endeavours" I sImply fall to
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understand thIS statement. The first twenty four months penod contemplates dIsabIlIty
from one's own occupatIOn.
The June 17 1997 demalletter wntten to Ms lB by ManulIfe stated that she had "not
been complIant wIth the return to work mandate, as agreed" ThIS language seems
Inappropnate In the face of the complacInants ongOIng efforts to reIntegrate Into the work
force Moreover If there had been any sIgmficant dIscuSSIOn between ManulIfe and the
employer or between ManulIfe and Dr C J at the tIme, It would have been eVIdent that
Ms lB was not able to carry out the plan as opposed to beIng "non-complIant" It
appears that ManulIfe was suggestIng a delIberate faIlure and I am conVInced that thIS
was not the case
I understand the ratIOnale behInd ManulIfe's decIsIOn to retaIn the servIces of SIbley to
assIst the partIes In determInIng whether the claimant could return to work. I thInk there
are Instances when such actIOn IS very appropnate and thIS mIght well have been one of
them However In thIS case It appears that the agent chosen to help the complaInant to get
back to work defined a specIfic goal and then embarked upon a path to achIeve It
IrrespectIve of all IndIcatIOns that the goal was not realIstIC In the first Instance A readIng
of the eVIdence reveals that, for whatever reason, SIbley determIned that the only real
goal was to get the claimant back to work at her old Job That was unfortunate It was also
contrary to the often stated VIew of Dr C J
I also must mentIOn some concern regardIng the physIcal testIng performed on the
claimant to assess her physIcal capabIlItIes I understand that such testIng IS a necessary
step In the process of establIshIng a successful return to work program However I am
not conVInced that what occurred In thIS Instance was suffiCIent. I found Dr C J ' s
perceptIOns regardIng the 'physIcal capacIty test' gIven to Ms lB most InterestIng. In a
letter to the employer dated August 11 1997 he stated
In regards to Number 3 the report of the physIcal capacItIes testIng done by PPRC
that I have, IndIcates that It was done on one day only (November 13 1996)
There IS no IndIcatIOn of how long she was tested. A one day assessment wIth a
condItIOn that tends to become more symptomatIc as actIvIty IS done IS really of
no value whatsoever In determInIng If an IndIVIdual can maIntaIn a level of
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productIve actIvIty day In and day out as IS reqUIred to do a Job competItIvely It
only says that Ms lB was able to do the actIvItIes on the day that she performed
them There was nothIng that I could see In the report that measured how Ms lB
fared after In the days after the assessment. What we are seeIng In the work place
now IS that as tIme passes and as the work load gets heavIer Ms lB IS less and
less able to cope wIth the demand.
In conclusIOn, the appeal IS upheld.
Dated at PIcton, thIS 3rd day of August, 2000
(Electromcallv SIgned)
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