HomeMy WebLinkAbout2000-33088 Benefits Claimant 00-09-14 Decision
IN THE MATTER OF AN APPEAL
BEFORE
THE SUBCOMMITTEE OF THE
JOINT INSURANCE BENEFITS REVIEW COMMITTEE
REGARDING CLAIM # 33088
CHAIR LORETTA MIKUS
APPEARING FOR THE UNION ROBIN GORDON
APPEARING FOR THE EMPLOYER YASMEENA MOHAMED
DA TE OF DECISION SEPTEMBER 14, 2000
Claim # 33088 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
22 9 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 Union grievance filed under Article
22 13 (Union Grievance)
2291 Any other complaint or difference shall be referred to the Claims Review
Subcommittee of Joint Insurance Benefits Review Committee aIERe), established
under Appendix 4 aoint Insurance Benefits Review Committee), for resolution
Appendix 4
JOINT INSURANCE BENEFITS REVIEW 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 communications 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
sharing 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 accompanied by an Actuary to provide technical advice and
counsel.
Claim # 33088 2
4 Duties of the Committee
The duties of the Committee shall consist of the following
(I) Development of the specifications for the public tendering of any negotiated
benefits which may be included in the Group Insurance Plan (to cover the
bargaining unit only) ,
(ii) Determination of the manner in which the specifications will be made
available for public tendering,
(iii) Consideration and examination of all tenders submitted in response the
specifications for tender and preparation of a report thereon,
(iv) Recommendation to the Government of Ontario on the selection of the
insurance carrier or carriers to underwrite the Group Insurance Plans,
(v) Review of the semi-annual financial reports on the Group Insurance Plan,
and
(vi) 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 describe the benefits to be provided, the cost sharing
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 carrier acting solely on its own behalf This shall
not preclude such carrier from arranging reinsurance as may be necessary
The basis for recommendation of an insurance carrier(s) will include the ability of the
carrier(s) to underwrite the plan, compliance of the carrier's quotation with the
specifications for tender, the carrier'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 denial 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 arising under
Claim # 33088 3
4
Article 22 9 1 (Insured Benefits Grievance) 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
(b) Appropriate impartial medical consultants shall be available to the subcommittee
in an advisory capacity to provide information on the nature of specific illnesses or
disabilities
@ Membership on the subcommittee shall be for one (1) year period, 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 Union
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 during the qualification period, and during the first twenty-four months of the
benefit period' and thereafter during the balance of the benefit period, 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 experience
Subsequent to the signing 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 "LTIP") That memorandum
stated.
JIBRIC CLAIMS REVIEW SUBCOMMITTEE
TERMS OF REFERENCE
Claim # 33088
5
AUTHORITY
The JIBRC subcommittee is established under Article 22 9 2 and Appendix 4 of the
collective agreement between The Crown in Right of Ontario and the Ontario Public
Service Employees Union
PURPOSE OF SUBCOMMITTEE
To review and make decisions on appeals from employees on claims involving the denial
of insured benefits under the collective agreement which have previously been removed
from JIBRC
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 writing 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 clarify 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
Claim # 33088
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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 writing 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 rise to the dispute
arose
ROLE OF MEDICAL CONSULTANTS
Appropriate 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 on 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
FORMAT 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 clarification of medical evidence, a meeting of the Subcommittee will
Claim # 33088
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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 written 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 right to introduce a written 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 Chair and will
respond to OPSEU's position OPSEU will have right of reply Presentation by both
parties will be based upon the information/record on file before the insurance carrier 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 written 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
During the term of the previous collective agreement, the parties attempted to resolve these
disputes between themselves Not surprisingly, there were a number of instances wherein they
were unable to agree Those matters simply remained unresolved Those outstanding matters are
now being brought forward before the subcommittee as set out above In accordance with the
agreement of the parties, Arbitrator Loretta Mikus and I were asked to act as the third party or
Claim # 33088
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independent chair This is the first decision arising from this process
At the first day of hearing the parties agreed that the Chair should render a decision stating that
the claim was properly or improperly denied without elaborating on the quantum of the remedy
but remain seized of the matter Subsequent to the issuance of the decision the parties will
negotiate and hopefully agree upon a memorandum of agreement as to the appropriate remedy
There was also discussion between the parties about the extent and content required in decisions
issued by the Chair(s) I think is it fair to say the parties agreed that, at the beginning the Chair(s)
will attempt to set out in some detail the dispute and the reasons for the decision The parties'
anticipate that the Chair(s) will establish some principles they can be guided by in assessing future
disputes It is hoped that as the jurisprudence develops, there will be less need for lengthy
decisions because the fundamental principles will already by established
The partIes filed the folloWIng statement of fact concermng thIS claim
1 Ms M.M. was employed as a FIeld AudItor classIficatIOn FInanCIal
Officer 2, wIth the Mimstry of Finance In Thunder Bay Ontano from
May 1990
2 Ms M.M. took short term sIck leave from her posItIOn from June 1 1992
3 At the exhaustIOn of her short term sIck leave benefits under the CollectIve
Agreement, Ms M.M. applIed for Long Term Income ProtectIOn Benefits
4 Ms M.M. receIved LTIP benefits from December 1 1992 to August 3 1
1995
5 Ms M.M. has not returned to work wIth the Employer at any tIme relevant
to thIS claim
In August of 1992 the claimant saw a physIcIan who descnbed her "strange constellatIOn of
symptoms" as IncludIng a four month hIStOry of low back paIn whIch progressed to dIffuse muscle
paIn pnmanly on her left sIde, sharp lower quadrant abdomInal paIn and a slIghtly elevated
temperature In October she was seen by a rheumatologIst whose lIst of symptoms Included those
mentIOned prevIOusly but added several more, IncludIng Increased paIn In her left sIde and groIn, left
Claim # 33088
9
ankle paIn, left face andJaw paIn and dIfficulty sleepIng. His assessment was that she was suffenng
from FibromyalgIa and prescribed AmItnpylIne and Flexenl Her claim for benefits dated November
5 1992 cIted Chromc PaIn and FatIgue as the reasons for her absence from work.
That claim was ImtIally demed on the baSIS of InSUfficIent InformatIOn about the claimant's
condItIOn. Subsequent letters were ultImately exchanged whIch resulted In a reversal of the demal
In May of 1993 for the penod November 30 1992 to June 30 1993 The Insurer advIsed the
claimant that further benefits would be dependant upon the outcome of an Independent medIcal
assessment. On June 24 1993 she was seen by the Head of the InfectIOus DIseases Umt at the
Toronto HospItal His assessment of her condItIOn was that her fatIgue and muscle aches were not
of a severe degree but that her actIvIty level was about 50% less than It had been before the
symptoms began. Although she had some features of fibroSItIS and Chromc FatIgue Syndrome, she
dId not have the usual fibroSItIC tender pOInts assocIated WIth those condItIOns Laboratory tests
conducted the same day showed no abnormalItIes He concluded that "If she follows thIS programme
and gets a good understandIng of her condItIOn then she has a very good chance of ImproVIng to a
consIderable extent such that she should be able to return to work at least on a part tIme baSIS by the
end of the year"
On July 27 1993 she was advIsed by the Insurer that the medIcal InformatIOn supported her claim
of total dIsabIlIty from her own occupatIOn and that her benefits had been reInstated. She was also
advIsed that, based on the InformatIOn proVIded, those benefits would not be extended beyond
November 30 1994 because the medIcal reports dId not support a findIng that she was totally
dIsabled from performIng the dutIes of any occupatIOn whIch she was reasonably fit to perform by
educatIOn, traInIng or expenence
A November follow-up report from her rheumatologIst, Dr Roddy suggested Ms M.M. would
benefit greatly from tryIng to return to work on a part-tIme baSIS She was referred to the
RehabIlItatIOn SectIOn of the Insurer for an assessment of her abIlIty to return to employment WIthIn
her former work enVIronment or elsewhere If necessary A February 1994 report from her phYSICIan,
Claim # 33088
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Dr ReId, renewed the suggestIOn she return to work on a part-tIme baSIS, begInmng wIth four hours
a day
Throughout the rest of 1994 the Insurer remInded Ms M.M. about the need to proVIde suffiCIent
proof of total dIsabIlIty In order to maIntaIn her benefits In July she was referred to another doctor
who made sImIlar comments about her left sIded paIn and, In partIcular her IncreaSIng fatIgue He
suggested she see a phYSICIan whose prImary focus was chromc fatIgue syndrome
In September of 1994 Ms M.M. was agaIn advIsed that her LTIP benefits would cease on November
30 That deCISIOn was based on her physIcIan's reports IndIcatIng she was fit to return to work on
a part-tIme baSIS As a result of that letter Dr ReId wrote a letter to the Insurer dated October 18
1994 In whIch he stated
Mrs. M.M. contmues to expenence problems as a result of her chromc fatIgue/fibromyalgIa
s,ndromes. Earher I had thought that she mIght be able to return to work part-tIme
However the extent of her ~TI1ptoms are such that she remams totalh dIsabled from workmg.
By letter dated November 25 1994 Ms M.M. was Informed by the Employer that, notwIthstandIng
theIr prevIOUS offer to return her to modIfied dutIes, the October 18th letter IndIcated her InabIlIty
to do so and, as a result, she was beIng placed on unpaid leave of absence Ms M.M. appealed that
deCISIOn.
A follow-up letter from Dr ReId, dated December 28 1994 stated as follows
Ms M.M. suffers from fibromyalgIa s,ndrome WIth elements of chromc fatIgue s,ndrome
In the past, she has been treated WIth AmItrIptylme and more recenth 2010ft but response
to these medIcatIOns has been margmal. At present, she IS contmumg to expenence left sIded
shoulder and back pam as well as lower back pam and muscle spasms.
She complams of pam m the left leg and both feet, WIth the left sIde bemg more severe She
reports bemg fatIgued all the tIme despIte sleepmg more than twelve hours per da, Ms
M.M. has frequent headaches and she expenences dIfficul~ concentratmg.
Ms. M.M. has seen several specIahsts regardmg her problems WIth fibromyalgIa and chromc
fatIgue No speCIfic new treatments are recommended.
Ms. M.M. remams dIsabled as a result of her illness. At present she IS not capable of workmg
Claim # 33088
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at a regular Job because of the eas, fatIgabIh~ The nature of her problem makes It dIfficult
to determme how long she will remam dIsabled. It IS hoped that her s'TI1ptoms will gradualh
Improve WIth tIme
Ms M.M. was referred to an InternIst, Dr Mornson, whose February 28 1995 report reVIewed her
medIcal hIStOry and concluded, In part, as follows,
She has tender pomts m 10 out of 18 trIgger pomts, but the, are almost all on the left sIde
She IS not tender m other parts of her bod,
The patIent s other problems are reVIewed as follows
1 PrevIOus surgen T &A, tubal hgatIOn 1985 tubal re-anastomoSIS December
1992 nght patellar re-ahgnment.
2 RegIOnal chromc pam. I thmk thIS IS a more accurate dIagnOSIS than
fibromvalgIa smce It IS confined to a regIOn, but the adVIse (SIC) as to
management IS essentIalh the same That IS, that she can do no harm to
herselfb, actIvI~ and, m fact, she can do as much as she can on good days
and on bad days she should necessarih do less. She has had adequate
treatment WIth NSAIDA and trIcvchc antI-depressants so that I would not in
those further
3 She also meets the cntena for chromc fatIgue s,ndrome I thmk that senous
underlvmg dIsease has been ruled out (I took some addItIonal tests and will
report them If the, are posItIve) The abih~ to reassure the patIent about
underlvmg senous dIsease IS the first step m therap,
The patIent does not mamfest an, ObVIOUS depreSSIOn, and I dId not attempt
to explore underlvmg psychopath, but It IS commonh present. She has now
had a number of orgamc specIahsts reVIew her and I thmk that It would be
useful to have someone skilled m helpmg people understand ones emotIOns
see her as part of the attempt to rehabIhtate her In the meantIme I beheve
that she IS genumeh dIsabled from an, actIvI~ of an occupatIOnal nature at
thIS stage She will reqmre a long penod of rehabihtatIve effort.
That medIcal report prompted a request from the Insurer for more InfOrmatIOn. In a subsequent letter
dated July 24 1995 Dr Mornson, In response to the questIOns posed to hIm by the Insurer began
by statIng that, when he saw her In February he belIeved she was unable to work because of the
prImary dIagnOSIS of chromc fatIgue syndrome He concluded WIth the follOWIng
However It would be m, adVIce that she should be evaluated m a multI-dIscIphnan
management centre As well, her rehabIhtatIOn should be undertaken Jomth b, her employer
and her attendmg phYSICIan. I beheve that she needs to be started on graduated exerCIse and
actIvI~ but that she should be encouraged to attend work daih as much as she IS able to
gIven that on some days she will be less well than others I also beheve that because of her
lack of endurance she would be able to work onh a few hours and at most a Vz da, at the
Claim # 33088
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begmmng of her rehabihtatIOn. I would strongh support the proposal outhned m your letter
mdIcatmg modIfied and/or part-tIme work should be undertaken.
At the tIme that I saw the patIent, the specIfic symptoms of her condItIon were eas,
fatIgabIh~ brought on b, unpredIctable amounts of actIvI~ l.e some days she could do a
fair amount, and other days she would be wIped out WIth onh mImmal actIvI~ In addItIon,
she has been havmg pam mvolvmg mamh the left upper extremI~ whIch IS worse WIth
actIvI~ stress, damp weather and IS charactenzed b, a burnmg quah~ The pam also
extends mto the lower portIOn of the bod, as well. These s'TI1ptoms would affect an attempt
to return to work, as well as her hmIted endurance It would reqmre a tolerant supervIsor
On the other hand, It would be reasonable to set goals as to how much actIvI~ at least half
the tIme on a conSIstent basIs, and expectmg her to meet those goals 90% of the tIme
I have not seen the patIent smce Februan and then onh on one occaSIOn. However I would
recommend a modIfied work program, or work hardemng program. Such a program would
have to be tailored to her needs, whIch would mclude
- her mabih~ to attend work daIh on a conSIstent basIs, smce some days are better
than other and,
- her lack of endurance Some days she would be able to work onh a few hours and
at most Vz da, at the begmmng. It IS rather dIfficult for me to make a
recommendatIOn as to speCIfics at thIS stage but perhaps It would be reasonable to
recommend Vz days 3 days a week as a start, WIth a target of returnmg to work Vz da,
even da, wIthm 12 weeks. One could then antICIpate extendmg the work week to
a full da,
Ms M.M. was advIsed by letter dated August 25 1995 that, based on Dr Mornson's prevIOUS letter
her benefits would be reInstated, retroactIvely and that she should contact the Employer to arrange
for a part-tIme return to work on the bases set out In Dr Mornson's letter In October the Employer
confirmed Ms M.M.'s reJectIOn of temporary part-tIme modIfied work In the RetaIl Sales Tax
department based on her phYSICIan's recommendatIOn she not return to work. That recommendatIOn
was confirmed In a letter from her Dr ReId, dated October 21 st whIch stated
Mrs. M.M. contmues to expenence s'TI1ptoms as a result of chromc fatIgue s,ndrome Over
the past few months her symptoms have been more troublesome As a result she remams
dIsabled from her Illness and unable to work.
It IS InterestIng to note that, chronologIcally the next medIcal report concerns a hospItal report of
the dehvery of the claimant's son. AccordIng to the report, she was admItted on November 13 1995
delIvered a healthy baby boy at 21 04 hours and was dIscharged at 23 30 hours that same day Two
subsequent mIdwIfe reports IndIcated that mother and baby were dOIng well
Claim # 33088
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In December the Insurer wrote to Ms M.M. askIng for more InfOrmatIOn from her famIly physIcIan
about how her condItIOn had changed SInce Dr Mornson's earlIer report. Follow-up letters were
sent on March 11 and June 24 1996 wIthout a response Finally In November of 1996 her famIly
physIcIan wrote
Ms. M.M. has ongomg problems WIth fibromvalgIa and chromc fatIgue She contmues to
expenence s'TI1ptoms whIch have remamed unchanged smce seen b, Dr G MorrIson m
1995
In response to a request for further InfOrmatIOn, Dr ReId wrote, In March of 1996 that he had never
been proVIded wIth Dr Morn son' s second letter and that, as far was he was concerned, Dr
Mornson's OpInIOn was that the claimant was genuInely dIsabled. He concluded wIth the folloWIng:
Ms. M.M. was last seen b, myself on November 20 1996 At that tIme she reported that her
fibromvalgIa s'TI1ptoms were about the same but that she had been more fatIgued. When
seen m October 1996 Ms M.M. had mdIcated that her symptoms were about the same as
when she had seen Dr MOrrIson.
In December of 1997 she was seen by another doctor Dr JaIn, In Ottawa, who found
Present!, she IS onh about 30% of her normal functIOnal capacI~ She has headaches onh
on exertIOn. She sleeps 10 to 12 hours a da, but could sleep up to 14 hours. She has a pam
from the neck down mosth on the left sIde of the bod, WIth onh mild achmg on the nght
sIde The pam IS moderate m nature but worsens If she over exerts She has concentratIOn
dIfficultIes WIth frequent forgetfulness She demes depressIOn although she remams
frustrated from not Improvmg.
She has seen a number of phYSICIans mcludmg two rheumatologIst, mternal medIcme
specIahst, mfectIOus dIsease specIahst and a neurologISt. The final conclusIOn IS that thIS
patIent IS suffenng from Chromc FatIgue Swdrome WIth possible FibromvalgIa. She has had
routme blood work done whIch has come back wIthm normal range mcludmg arthntIc work
up
She does, therefore satIsf\ the 1998 CD C cntenas for a dIagnosIs of Chromc FatIgue
Syndrome Although there has been mild Improvement to sustam regular actIvI~ on a daih
basIs, she has not notIced an, sIgmficant Improvement to sustam regular actIvI~ on a daih
basIs. I would therefore have to support the other phYSICIans for total dIsabih~ until further
Improvement occurs. I do not have an, magIc cures for thIS patIent as tIme IS the most
Important factor along WIth decreased stress and pacmg.
In response to a request for further InformatIOn Dr JaIn, In February of 1998 wrote the folloWIng
The treatment recommendatIOn was gradual pacmg such as walkmg on a ven slow baSIS
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daih I have also suggested Prozac whIch has helped man, of m, patIents along WIth some
natural supplements such as Pnmose 011. Her phYSICIans will follow up on thIS. As far as
prognOSIS, she has been off work for a number of years WIth onh mImmalImprovement. As
a result, the prognosIs IS ven guarded for the near future and would remam off work
mdefimteh We can onh talk of prognOSIS from year to year m Chromc FatIgue S,ndrome
as man, of these patIents ma, Improve on the long-term basIs.
As a result, I do not see her returnmg to her gamful occupatIOn m the next year AlternatIve
occupatIOn can be conSIdered onh when there has been sustamed Improvement such that she
can functIOn for some degree on a daIh basIs regularh Therefore retrammg IS not
appropnate at thIS moment but would onh be conSIdered b, the assessment of her phYSICIan
when she Improves. LImItatIOns wIth respect to the ~'Pe of work at that pomt would be
pnmanh sedentan m nature where she IS not standmg or walkmg for and (SIC) extensIve
penod of tIme Agam, thIS IS onh when she shows Improvement.
A subsequent Independent medIcal assessment was arranged for June 8 1999 by the Insurer wIth a
doctor of phYSIcal medICIne and rehabIlItatIOn, Dr Rao His assessment was that Ms M.M.
dIsplayed thIrteen of the eIghteen tngger pOInts and therefore met the cntena for a dIagnOSIS of
fib romyalgIa. She would never be paIn free and that her symptoms of generalIzed aches and paInS,
fatIgue and sleep dIsturbances would fluctuate In IntenSIty Her condItIOn however would not get
progressIvely worse wIth tIme or age and would not lead to complIcatIOns such as arthntIs Dr Rao
was unable to comment on Ms M.M.' s functIOnal abIlItIes and adVIsed a FunctIOnal CapaCIty
EvaluatIOn to obtaIn obJectIve InformatIOn concernIng her Impairments He adVIsed the claimant
to keep as actIve as possible wIthIn the lImIts of her paIn.
Based on Dr Rao's assessment, the Insurer adVIsed the claimant In September of 1999 that she dId
not meet the defimtIOn of totally dIsabled from performIng the essentIal dutIes of any occupatIOn and
was not entItled to L TIP benefits The claimant appealed and the case was referred to me
DECISION
The partIes have accepted the medIcal OpInIOnS regardIng Ms M.M.' s InabIlIty to perform the dutIes
of her own occupatIOn for the two year penod allowed under the Insurance plan. The Issue before
me IS whether the medIcal eVIdence supports a findIng of total dIsabIlIty from performIng the
essentIal dutIes of any occupatIOn In the foreseeable future The test IS whether the claimant has
Claim # 33088
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been wholly and contInuously unable to perform the dutIes of any occupatIOn for whIch she IS
reasonably fitted by educatIOn, traInIng or expenence
It IS clear that the Insurer has accepted the fact that the claimant suffers from Chromc FatIgue
Syndrome and FibromyalgIa. However as It noted In ItS correspondence to the claimant, these
dIagnoses do not, In and of themselves, lead to an IneVItable conclUSIOn of dIsabIlIty It IS the
seventy and nature of the symptoms of these condItIOns that determInes whether a claimant IS
prevented from performIng the dutIes of hIs/her occupatIOn or any other occupatIOn. That
determInatIOn IS to be found In the medIcal InformatIOn provIded to the Insurer at the tIme the
deCISIOn was made to deny benefits
In the claimant's sItuatIOn, she first began notICIng these generalIzed aches and paInS on her left sIde
In 1992, accompamed by fatIgue A proVIsIOnal dIagnosIs of fibromyalgIa was made at the tIme
She was on short term SIck leave from June to December of 1992 and on the baSIS of her symptoms
of contInuIng paIn and fatIgue, her LTIP benefits were approved to June of 1993 An Independent
medIcal eXamInatIOn that same month by Dr SalIt, Head of InfectIOUS DIsease at The Toronto
HospItal confirmed the dIagnosIs of Chromc FatIgue Syndrome and quened the dIagnosIs of
FibromyalgIa. Nevertheless, the conclUSIOn was that she was unable to return to work at the tIme
but that If she followed the course of treatment there was every hope that she would be able to return
to work by the end of the year at least on a part-tIme baSIS Her LTIP benefits were extended to
November of 1994 a total of two years
A follow-up consultatIOn WIth a rheumatologIst, Dr Roddy In November of 1993 confirmed the
former OpInIOn that she could return to part-tIme work and a subsequent physIcIan's statement form
for the Insurer completed by Dr Roddy stated that the claimant was not dIsabled from eIther her own
or any other occupatIOn and was SUItable for some form of tnal employment. The claimant's own
applIcatIOn for contInued benefits at that tIme stated that she would "lIke to try some part tIme work
If at all possIble" A subsequent letter from Dr ReId, In February of 1994 affirmed her abIlIty and
Claim # 33088
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desIre to return to part tIme work. A March, 1994 physIcIan's statement of contInuIng dIsabIlIty was
completed by Dr ReId In whIch he noted that her condItIOn had Improved and that she was seekIng
a return to modIfied dutIes There IS some reference In the record to the effect that a rehabIlItatIOn
counsellor had been workIng wIth the claimant dunng thIS penod but an August letter from Dr ReId
IndIcated that she was stIll hopIng to return to work on a graduated basIs, begInmng wIth three 1Iz
days a week.
It IS not surpnSIng that the Insurer when It receIved Dr ReId's letter of October 18 1994 describIng
the claimant as "totally dIsabled from workIng" requested further InformatIOn about the detaIls of
her symptoms and her lImItatIOns and/or restnctIOns ThIS was an abrupt departure from the
prevIOUS OpInIOnS of the claimant and her condItIOn. The Insurer asked Dr ReId for an explanatIOn
for thIS change In status, a questIOn that was never satIsfactonly answered. To thIS pOInt the Insurer
had been prepared to accept Ms M'M. s claim for LTIP because It was to be mItIgated by part-tIme
employment wIth the ultImate goal of a complete return to full employment. Her claim now to be
totally dIsabled from performIng the dutIes of any occupatIOn was not supported by any medIcal
eVIdence that her condItIOn had detenorated to the extent that a return to work would be Impossible
ChronologIcally the next medIcal report appears, at first blush, to support Ms M.M.' s claim of
totally dIsabIlIty Dr Mornson stated that she was "genUInely dIsabled from any actIVIty of an
occupatIOnal nature at thIS stage" However when asked dIrect questIOns by the Insurer of hIS
OpInIOn concermng her restnctIOns and lImItatIOns for a return to modIfied or part-tIme work, he
explaIned hIS former comment by elaboratIng on hIS OpInIOn of Ms M.M.' s future prospects His
comment about total dIsabIlIty In hIS first letter had been followed by the comment "she wIll reqUIre
a long penod of rehabIlItatIOn effort" His subsequent letter of July 24 1995 confirmed hIS VIew
that she was unable to work at that tIme but then set out the condItIOns under whIch he belIeved she
could and, In fact, should, attempt a return to the workplace These letters are not InCOnSIstent or
contradIctory but rather complete Dr MOrrIson's VIew of the claimant and her dIsabIlIty He
recogmsed her lImItatIOns and speCIfically noted that some days she could do more than others and
Claim # 33088
17
that her endurance would fluctuate from day to day Nevertheless, he was clearly of the OpInIOn that
she could attempt a gradual return to work as long as these lImItatIOns were accommodated.
The next medIcal report In the record IS from Dr JaIn, dated December 28 1997 and IS, In my VIew
confUSIng. He confirmed the claimant's paIn and fatIgue and stated that "I would therefore have to
support the other physIcIan's for total dIsabIlIty untIl further Improvement occurs" AssumIng that
he had before hIm all of the medIcal reports that were provIded to me, the only physIcIan who stated
uneqUIvocally that the claimant was totally dIsabled was Dr ReId. NeIther rheumatologIst stated
she was unable to work. Both expressed a belIef that she probably suffered from fibromyalgIa and
chromc fatIgue syndrome but neIther speCIfically commented on her abIlIty or InabIlIty to return to
work at the tIme of theIr assessments In 1992 and early 1993 In fact, a later report from one of
them, Dr Roddy In November of 1993 stated that she would benefit from part-tIme work. Clearly
he dId not conSIder her unable to return to employment. The Dr SalIt opIned that she was unable
to return to work In July of 1993 but was of the OpInIOn she would be fit to do so by the end of that
year In fact, untIl October of 1994 her own phYSICIan, Dr ReId, belIeved she could return to part-
tIme modIfied work. Dr Mornson's medIcal consultatIOn of February 1995 does contaIn a statement
about the claimant's InabIlIty to work at the tIme but hIS follow-up report of July 1995 clanfied hIS
OpInIOn. When Dr JaIn saw Ms M.M. In December of 1997 he would have had the benefit of both
of Dr Mornson's consultatIOns If Dr JaIn was of the VIew that the claimant was dIsabled, he had
an opportumty to dIsagree WIth Dr MOrrIson's July findIngs He dId not and therefore I am not sure
what hIS VIews were on Dr Mornson's recommendatIOns for rehabIlItatIOn.
DealIng WIth hIS report speCIfically Dr JaIn saw the claimant once and wrote two separate reports
concernIng that same VISIt. In hIS second report he thought It was unlIkely that Ms M.M. could
return to gaInful employment untIl she had enJoyed a sustaIned penod of Improvement such that she
could functIOn on a dally baSIS WIth some regulanty He does not clanfy what Improvements he
would conSIder necessary If he meant Improvements In her paIn levels or management or In her
fatIgue, he IS correct when he states that she has had mImmalImprovement over the years WhIle
Claim # 33088
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he does not agree that retraInIng would be appropnate at the tIme, he does state that for patIents WIth
the claimant's dIagnoses, Improvements occur over a long penod of tIme, even years, and that at
some pOInt In the futIre, she mIght be able to return to sedentary work that does not reqUIre walkIng
or standIng for extensIve pen ods of tIme A graduated return to employment takIng Into account
those lImItatIOns IS exactly what Dr Mornson envIsaged In hIS recommendatIOns of July 1995
Finally we have the consultatIOn report of Dr Rao of June 8 1999 He offers no OpInIOn about her
abIlIty to return to work because of the lack of an obJ ectIve functIOnal evaluatIOn. SurpnsIngly It
would appear none was ever conducted on the claimant. In any event, hIS recommendatIOn was that
she keep as actIve as pOSSIble wIthIn the lImIts of her paIn.
With the exceptIOn of Dr ReId's and Dr JaIn's OpInIOnS, It would seem that the general consensus
has been that Ms M.M. could and should try part-tIme modIfied work as a work hardemng and
rehabIlItatIOn process No one has suggested she does not have legItImate medIcal problems but the
questIOn befoer me IS whether those medIcal problems are severe enough to prevent her from
performIng the dutIes of any occupatIOn. To a large extent I prefer the OpInIOnS of Dr Roddy Dr
Mornson and, to a lesser extent, Dr Rao over those of Dr ReId and Dr Jam. The former phYSICIans
were clearer about the reasons for theIr OpInIOnS and offered constructIve suggestIOns for a return
to work protocol that would allow Ms M.M. to adJust to the workplace after a long absence Dr
ReId, whIle maIntaInIng hIS pOSItIOn about MS.M. M.' s condItIOn, dId not offer any more InfOrmatIOn
about what her lImItatIOns were or how much or lIttle she could do from a rehabIlItatIve prospectIve
Requests further detaIls were met WIth general statements eIther confirmIng Ms M.M.' s condItIOn
or statIng that her symptoms had become more troublesome That IS SImply not enough In the
CIrcumstances An evaluatIOn of a claimant's abIlIty to return to work, be It theIr own or any
occupatIOn, reqUIres more than a general statement of dIsabIlIty It reqUIres a thoughtful and
comprehensIve descnptIOn of the claimant's restnctIOns and an explanatIOn of why those restnctIOns
prevent her/hIm from performIng the dutIes of a Job That explanatIOn should be related to the actual
dutIes of the Job If possible Ifnot, It should decribe why any Job dutIes would be out of the questIOn
Claim # 33088
for that partIcular claimant. Dr ReId dId not provIde a detailed explanatIOn for hIS conclusIOns Dr
JaIn sImply concurred wIth Dr ReId but agaIn offered no further InfOrmatIOn about her actual
abIlItIes, restnctIOns or lImItatIOns In the absence of a thorough evaluatIOn of her functIOnal
abIlItIes, there IS sImply not enough eVIdence before me of her InabIlIty to perform some Job
functIOns, albeIt on a reduced and modIfied level
I am of the OpInIOn that the medIcal InfOrmatIOn provIded to me does not support a findIng of total
dIsabIlIty from performIng the dutIes of any occupatIOn as defined by the Insurance polIcy The
appeal IS therefore demed.
Dated thIS 14th day of September 2000
Loretta Mikus