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HomeMy WebLinkAbout2000-67525 Benefits Claimant 00-07-28 Decision In the matter of an Appeal Before The Subcommittee of the JOint Insurance Benefits Review Committee Regarding Claim # 67525 Chair: Felicity D. Briggs Appearing for the Union: Robin Gordon Appearing for the Employer: Hlroko Sawal 2 Included m the most recent collectIve agreement between the partIes are the followmg provIsIOns Article 22 - Grievance Procedure Article 22.9 - Insured Benefits Grievance 229 1 An allegatIOn that the Employer has not provIded an msured benefit that has been contracted for m thIS Agreement shall be pursued as a Umon gnevance filed under ArtIcle 22 13 (Umon Gnevance) 1 Any other complamt or dIfference shall be referred to the Claims ReVIew SubcommIttee of Jomt Insurance Benefits RevIew CommIttee (JIBRC), establIshed under AppendIx 4 (Jomt 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 Jomt 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 mcludmg 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 mcluded m 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 m any applIcable collectIve agreement or arbItratIOn award, and the matters for conSIderatIOn by thIS CommIttee shall be only as set out m these terms of reference 3 Composition of Committee Clmm#67525 3 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 m total At meetmgs of the CommIttee, each party may be accompamed by an Actuary to provIde techmcal advIce and counsel 4 Duties of the Committee The dutIes of the CommIttee shall consIst of the followmg - Development of the specIficatIOns for the publIc tendenng of any negotIated benefits whIch may be mcluded m the Group Insurance Plan (to cover the bargammg umt only) - DetermmatIOn of the manner m whIch the specIficatIOns wIll be made avaIlable for publIc tendenng; - ConsIderatIOn and exammatIOn of all tenders submItted m response the specIficatIOns for tender and preparatIOn of a report thereon, - RecommendatIOn to the Government of Ontano on the selectIOn of the msurance 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 eXIstmg admmIstratIve 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 msurance plans, the employee data, the format for the retentIOn IllustratIOn for each coverage and the finanCIal reportmg reqUIrements Tenders shall be entertamed by the CommIttee from any mdIvIdual msurance carner actmg solely on ItS own behalf ThIS shall not preclude such carner from arrangmg remsurance as may be necessary The basIs for recommendatIOn of an msurance carner(s) wIll mclude 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 Clmm#67525 4 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 (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 Clmm#67525 5 occupatIOn for whIch he or she IS reasonably fitted by educatIOn, trammg or expenence Subsequent to the sIgmng of thIS collectIve agreement the partIes negotIated and sIgned terms of reference regardmg the establIshment of a subcommIttee to deal wIth dIsputes between the partIes regardmg Long Term Income ProtectIOn (heremafter 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 m RIght of Ontano and the Ontano PublIc ServIce Employees Umon. PURPOSE OF SUBCOMMITTEE To reVIew and make decIsIOns on appeals from employees on claims mvolvmg the demal of msured 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, m 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 m wntmg to OPSEU askmg 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 wIthm 90 days from the notIce letter then the claim wIll be deemed to be wIthdrawn. Clmm#67525 6 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 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 Clmm#67525 7 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 supportmg documentatIOn upon whIch they mtend to rely ThIS dIsclosure wIll take place at least two weeks m advance of the meetmg of the subcommIttee dealIng wIth the subJect matter of the appeal If the Chair reqUIres clanficatIOn of medIcal eVIdence, a meetmg of the SubcommIttee wIll be arranged wIth a medIcal consultant agreed to by both MBS and OPSEU or faIlmg such agreement, wIth a medIcal consultant called by the Chair MBS and OPSEU wIll Jomtly 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 mdIvIdual claimant wIll be allowed to file a wntten statement m lIeu of testIfymg. If the mdIvIdual 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 mtroduce a wntten response to thIS statement. OPSEU wIll present ItS posItIOn on the case wIth supportmg arguments to the Chair MBS wIll present ItS posItIOn on the case wIth supportmg arguments to the Chair and wIll respond to OPSEU's posItIOn. OPSEU wIll have nght of reply PresentatIOn by both partIes wIll be based upon the mformatIOn/record on file before the msurance 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 meetmg as an observer only The Chair wIll render a wntten decIsIOn wIth supportmg ratIOnale FREQUENCY OF MEETINGS. On an as needed basIs as determmed by MBS and OPSEU Jomtly Clmm#67525 8 The partIes agree to these Terms of Reference m 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 mdIcate whether a claim was properly or Improperly demed. The Chair IS to refram from elaboratmg on the quantum of the remedy but rather rem am seIzed. Subsequent to the Issuance of the decIsIOn the partIes wIll negotIate and execute a memorandum of agreement that wIll mclude the appropnate remedy Dunng the term of the prevIOUS collectIve agreement, the partIes attempted to resolve these dIsputes between themselves Not surpnsmgly there were a number of mstances when consensus was not achIeved. Those matter sImply remamed unresolved. Those outstandmg matters are now bemg brought forward before the subcommIttee as set out above In thIS case, the partIes proVIded an agreed statement of fact that stated 1 Mr H.B was employed as an AudItor wIth the Mimstry of SOlICItor General and CorrectIOnal ServIces, he has worked m the Ontano PublIc ServIce from November 1990 2 Mr H.B was on sIck leave from May 15 1996 hIS short term sIck leave benefits expIred November 5 1996 3 Mr H.B applIed for Long Term Income ProtectIOn benefits November 15 1996 and was subsequently demed. 4 Mr H.B returned to work on a gradual basIs June 22, 1997 Attendance records show that he worked 21 75 hours for the penod June 24 to 29 5075 hours for the penod June 30 to July 13 and returned full tIme as of July 14 1997 As can be seen from the above statement, the penod at Issue m thIS matter IS lImIted to November 15 1996 to July 14 1997 mcludmg the three weeks of partIal benefits The Umon IS requestmg an order for the full benefits for the penod of complete absence and for top up of benefits dunng the rehabIlItatIOn penod. In hIS statement to ManulIfe, Mr H.B's phYSICIan, Dr S.D stated that hIS patIent had a dIagnOSIS of "Mood DIsorder DepreSSIOn, HypertensIOn, Insomma, fatIgue, depreSSIve Clmm#67525 9 thoughts, anxIety vegetatIve sIgns, pamc affect - flat, presses helplessness, hopelessness" Dr S.D also stated that Mr H.B was "unable to concentrate focus" He referred to anXIety and pamc and said that "stress at work doesn't help the sItuatIOn" He also explamed that the claimant was receIvmg psychotherapy from Dr P.M. and was takmg certam medIcatIOn. Interestmgly Dr S.D mdIcated that hIS patIent was ready for tnal employment m another occupatIOn but not hIS own. It IS thIS Issue whIch IS foremost m thIS dIspute Dr P.M. was asked on February 19 1997 to provIde medIcal mformatIOn about the claimant to enable ManulIfe to "gIve proper conSIderatIOn to hIS claim for Long Term Income ProtectIOn benefits" He replIed on March 11 1997 by supplymg hIS clImcal notes begmmng m January of 1996 These notes, wntten monthly are helpful PortIOns of the statements are set out below' . stable - stress - commutmg IS gettmg hIm down, feels he's workmg very hard - yet IS m so much debt that thIS seems futIle (January 22, 1996) . stable - severe sItuatIOnal stress - stressed ++ by money problems - dIfficult to work WIthout valId credIt card etc - on the verge of bankruptcy - mood fluctuates (February 15 1996) . stable - finanCIal problems perSIst but he and WIfe have deCIded to "take charge" - under tremendous stress WIth money pressures - commutmg pressures to Toronto - tIme & cost - at tImes feels very anxIOUS - decreased sleep anXIety attacks (March 13 1996) . back at work - was off due to OPSEU stnke - money problems contmue to be very sIgmficant - lookmg for work m the secunty busmess (casmo secunty) - relatIOnshIp WIth WIfe IS gomg well - copmg WIth stress (Apnl17 1996) . patIent IS not at work - would cope any longer - pressures at work - problems at home - money sItuatIOn - long commute - extreme stress - smce bemg off work - feelIng more relaxed - stable - contmue off work (May 24 1996) . stable - on SIck leave - patIent does not feel he wIll be able to return to work - mood IS generally better (June 11 1996) . domg well - stIll on SIck leave - feels good about thIS - mood and anXIety level are Improvmg - feels more m control of hIS lIfe sItuatIOn - bankruptcy IS proceedmg well - sl eep ( checkmark) appetIte (checkmark) energy (checkmark) (July 9 1996) . stable - was m Atlanta workmg Secunty for OlympICS - had to come home early - mom III & dIed of pneumoma - copmg WIth her death - Clmm#67525 10 dIscussed thIS - money pressures contInue - mood IS posItIve - COpIng well (August 16 1996) . stable - anxIOUS about lack of work; money pressures mood anxIOUS - not sad or depressed - sleep poor when thInkIng of problems - relatIOnshIp wIth wIfe gOIng well despIte sItuatIOnal stress (September 16 1996) . stable - stIll off work but hopIng to return to work In a month or so - officIally "bankrupt" - have to focus on thIngs he can control - where to lIve - what to do for work - patIent IS thInkIng about gOIng back to work but there are clearly a number of problems wIth thIS (October 16 1996) . patIent has decIded not to return to work - feels he can't cope wIth the commutIng; pressure assocIated wIth work - patIent has been "hIred' by a caSInO company - few ShIftS per week - patIent concerned he couldn't do thIS - maIn concern contInues to be money pressures and stress - has decIded to lIve In St. Cathannes - and to try to change hIS career - mood down often - often feels anxIOUS (November 11 1996) . stable - under tremendous stress - not workIng - dIscussed work - feels he sImply couldn't (cope) wIth work due to stress and commutIng - contInues to be dragged down by the problems assocIated wIth hIS compames - legal proceedIngs (eg Revenue Canada) - mood down but PaxIl helps (December 10 1996) . stable - dIfficulty COpIng wIth sIgmficant stress - mood stable - very sensItIve to others cntIcIsms - money problems - relatIOnshIp wIth wIfe not gOIng as well - couple are dealIng wIth stress separately - very angry about bankruptcy process (January 13 1997) . stable - takIng control of hIS lIfe - feelIng a lot better thIS month - senses some movement, progress - rentIng a umt In a four-plex - has been gOIng through hIS belongIngs - feelIng freed up - feels much better not haVIng to commute to Toronto - workIng part tIme WIth Canada Customs (February 10 1997) . seen for two VISItS - generally dOIng well - workIng 22 hours wIth Customs servIce - mood better - COpIng wIth part tIme work but feels he could work more hours - COpIng wIth money straIn and bankruptcy - sleep stIll broken five or SIX tImes WIth dreams - dIscussed employment - patIent feels he couldn't work In Toronto - can't cope wIth the thIrteen hours days, thInkIng he needs to relocate Job permanently - to area where he lIves - has moved to new house - pleased wIth thIS (March 10 1997) Dr D S sent the folloWIng letter to ManulIfe on Apnl 30 1997 Mr H.B as you know has been suffenng from a chromc ongOIng depressIOn and anxIety state Apart from seeIng me on a fairly regular basIs, he also sees Dr P.M. a psychIatnst. Clmm#67525 11 I am sure that you have now receIved a detaIled letter from Dr P.M. outlImng Mr H.B ' s problems EssentIally he has all the classIcal symptoms of clImcal depressIOn fulfillIng all the DSM-IVR cntena for mood dIsorder and anxIety dIsorder He also has a tendency to have pamc attacks, espeCIally under certaIn workIng condItIons In my OpInIOn, Mr H.B must be conSIdered dIsabled for the type of work he IS reqUIred to do His IS currently on antIdepressants and anxIOlytIcs and although he has made a fair bIt of progress, hIS symptoms recur and escalate when he attempts to return to work. I hope thIS letter along wIth the one from Dr P.M. has provIded wIll adequately satIsfy your needs to determIne Mr H.B ' s dIsabIlIty In denYIng the claimant's applIcatIOn the dIsabIlIty adJudIcator stated, In part, on May 21 1997 AccordIng to your psychIatnst, Dr P.M. your condItIOn was stable at each appoIntment. Also you reported to Dr P.M. that you felt better SInce beIng off work and you dId not want to commute to Toronto You were also capable of workIng at several Jobs dunng the qualIfYIng penod of the claim ThIS clearly IndIcates that you are not conSIdered totally and contInuously dIsabled by a psychIatnc Illness Dr D S wrote In August of 1997 the folloWIng, In part In my letter of Apnl 30 1997 to the DIsabIlIty AdJudIcator Ms Karen LIntlop I clearly stated that Mr H.B was wholly and contInuously dIsabled for the type of Job he was expected to do He tned to negotIate work adJustments whIch were not made It IS very clear that hIS work sItuatIOn tnggered off severe stress (SIC) anXIety and ultImately burnt (SIC) out and depreSSIOn. I also suggested that Mr H.B could pOSSIble manage In a dIfferent enVIronment WIth good support and a totally dIfferent Job descnptIOn that he would be able to artIculate for you. I belIeve that Mr H.B IS defimtely Interested In re-traInIng. He has excellent InteractIve skIlls and would do well WIth sItuatIOns dealIng WIth people WIthIn a safe enVIronment. Dr Morns also wrote agaIn In September 1997 That letter stated, In part Mr H.B came off work due to extreme stress that he was expenencIng. These stresses Included finanCIal problems, domestIC problems, work related stress, and also the stress assocIated WIth hIS commutIng from hIS home In the Niagara regIOn to hIS office In Toronto Dunng the tIme that he was away from hIS usual occupatIOn, Mr H.B dId work on a part tIme baSIS For a short penod of tIme he worked as a secunty officer at the OlympICS at Atlanta, GeorgIa, and subsequently worked WIth the customs authontIes at the border In Niagara. He was able to cope Clmm#67525 12 wIth these Jobs, as he dId not find them stressful They were part tIme, and they dId not Involved any sIgmficant commutIng. Therefore these Jobs were much less stressful than hIS usual occupatIOn. When seen on June 9th 1997 Mr H.B reported that he was thInkIng about returnIng to hIS usual occupatIOn. He was aware of the problems assocIated wIth the posItIOn that he left In May 1996 but he felt that It was Important for hIm to try to return to work. SInce returmng to work Mr H.B has apparently done well For thIS reason, I do not feel that he IS a candIdate for retraInIng. In ItS final demal of the claim, the claims adJudIcator wrote, In part: From Apnl 17 1996 to March 10 1997 you were takIng PaxIl The dosage of thIS medIcatIOn was never Increased and your medIcatIOn were never changed whIch would support that your condItIOn was stable and dId not reqUIre more aggressIve treatment. Dr P.M.'s report dated September 10 1997 does not descnbe a totally dIsablIng psychIatnc Illness rather It IS more IndIcatIve of a lIfestyle chOIce where you no longer wanted to commute to Toronto You were last seen by Dr P.M. on June 9 1997 and In fact dId well upon returmng to work. Dr S.D' s report dated August 27 1997 does not proVIde any detaIls regardIng your condItIOn. He does not descnbe any symptoms whIch would be IndIcatIve of a totally dIsablIng psychIatnc Illness In vIew of the aforementIOned, thIS IS InSUfficIent obJectIve medIcal eVIdence to substantIate a claim for a total and contInUOUS dIsabIlIty as defined by the polIcy Furthermore, you have also faIled to satIsfy the defimtIOn of the QualIfYIng Penod SInce you workIng dunng thIS tIme Weare therefore maIntaInIng our deCISIOn to declIne your claim for L TIP benefits It was the Umon's pOSItIOn that the claimant has proVIded a medIcal record that clearly IndIcates he was totally dIsabled from performIng hIS own occupatIOn. Although It was Said that he was stable, such a charactenzatIOn should not detract from the seventy of hIS condItIOn. Indeed, "stable" SImply means that hIS condItIOn IS neIther detenoratIng nor ImproVIng. In the absence of any conflIct, Dr P.M.'s VIew ought to be preferred over the Inferences drawn by ManulIfe's psychIatnc consultant, who never actually saw the claimant. The Umon also suggested that I ought to be careful not to attempt to re-Interpret Clmm#67525 13 the clImcal notes that are for the physIcIan's use only In partIcular I ought not to put the same emphasIs on the claimant's feelIngs about commutIng that ManulIfe clearly dId. ThIS was but one of the stressor's artIculated by the claimant. The dIsabIlIty adJudIcator stated that the claimant had merely made a lIfe-style chOIce but there IS no eVIdence to substantIate such a findIng. ThIS process should not have the subcommIttee subStItutIng ItS VIew over those of the experts We should only draw legal conclusIOns based on the eVIdence at hand. The maIn Issue In dIspute In thIS matter IS whether the fact that the claimant worked at other Jobs dIsentItles hIm from LTIP benefits The Umon remInded me that In the first twenty four month penod of L TIP coverage, It IS an employee's own occupatIOn whIch IS the standard. The fact that the claimant can work at other occupatIOns does not mean that he was able to functIOn at hIS own occupatIOn. The Employer submItted that the claimant has not, at any stage of the appeal process, shown that he was unable to perform the essentIal dutIes of hIS own occupatIOn dunng eIther the qualIfYIng penod or dunng the absence that followed hIS short term SIck leave An InSpectIOn of the clImcal notes provIded by Dr P.M. shows very lIttle dIfference In the claimants condItIOn between when he was at work and after he had left. Although there IS frequent reference to stress and some reference to anXIety there IS nothIng to suggest that the claimant was totally dIsabled Indeed, there IS no change In treatment at all dunng the qualIfYIng penod or the claim penod. The Employer made It clear that It was not takIng the pOSItIOn that the very fact that he could work, In and of Itself, dIsentItled the claimant. However hIS file must lead one to the conclUSIOn that he IS a man who IS lookIng to change hIS career From the first physIcIan's statement, Dr S.D stated that the claimant could work but would not lIkely ever return to hIS own Job Clmm#67525 14 It IS Important to note, suggested the Employer that there IS no documentatIOn to support the dIagnosIs of "clImcal depressIOn" as set out by Dr S.D There IS no IndIcatIOn of an Independent clImcal assessment nor IS there any ratIOnale for hIS OpInIOn. Indeed, we are at a loss In terms of knowIng whether Dr D S even conSIdered the actual Job that the claimant was performIng when he arnved at hIS OpInIOn. Further It IS noteworthy that at no pOInt does the specIalIst state that the claimant IS "totally dIsabled" and hIS clImcal notes certaInly do not lead to such a findIng. DECISION It mIght be said that at the heart of thIS dIspute IS the Issue of whether the fact that the claimant worked at Jobs other than hIS own dunng the qualIfYIng penod and claim penod dIsentItled hIm from LTIP benefits However I am of the VIew that there IS no need to speCIfically conSIder that aspect of thIS matter at any length because, In my VIew the claimant was not totally dIsabled from performIng the essentIal dutIes of hIS own occupatIOn. Although the claimant's general practItIOner suggested that hIS patIent was "totally dIsabled for the work he IS reqUIred to do" he dId not explaIn that findIng. His faIlure to elaborate In any way In the face of the other facts of thIS matter had led me to find that he dId not have any appreCiatIOn for what IS meant by "totally dIsabled" as that phrase It IS noteworthy that, at no pOInt, does the psychIatnst offer the VIew that the claimant IS totally dIsabled. In hIS letter of September 10 1997 Dr P.M. reported that the claimant had "ongoIng problems wIth depreSSIOn" He set out hIS pharmacologIcal treatment and lIsted the contnbutIng factors to the stresses the claimant was expenencIng. He also lIsted the vanous other Jobs that the claimant performed dunng hIS absence from hIS audItor posItIOn. His comments In thIS regard are InterestIng and revealIng. Dr P.M. stated that the Jobs performed were "part tIme, and they dId not Involve any sIgmficant commutIng. Therefore these Jobs were much less stressful than hIS usual occupatIOn" In my VIew those comments fall far short of statIng that the claimant was "totally dIsabled" from Clmm#67525 15 performIng the essentIal dutIes of hIS usual occupatIOn. If the full tIme aspect of the claimant's work was the problem, perhaps he could have done hIS own Job on a part tIme basIs If the "sIgmficant commutIng" was the problem, then perhaps a change In the locatIOn of the work was the appropnate solutIOn. As stated above, I am of the VIew that Dr P.M.'s faIlure to state that the claimant was totally dIsabled from dOIng hIS own work IS tellIng. A reVIew of hIS clImcal notes reveal a man wIth sIgmficant problems In hIS lIfe and hIS struggle COpIng wIth those problems The notes also IndIcate that throughout the entIre penod of the claimant's treatment, he IS "stable" The only devIatIOn from that descnptIOn was found at the note wntten folloWIng hIS July 9 1996 VISIt whereIn Mr H.B was "doIng well" Although there are references to the claimant's sIgmficant stress and declImng mood, there IS nothIng In the documentatIOn proVIded by Dr P.M. that would persuade me that Mr H.B was totally dIsabled. AccordIng to the eVIdence the claimant saw hIS psychIatnst once a month and hIS general practItIOner once a month. ThIS IS not an Instance where there IS any IndIcatIOn that the general practItIOner has more contact and more knowledge regardIng the claimant. It IS for thIS reason that I am not prepared to prefer Dr S.D's OpInIOn that Mr H.B IS totally dIsabled. In Dr S.D's letter of August 27 1997 he contInues to suggest that re-traInIng IS needed for the claimant. That letter was wntten In excess of two months after the claimant successfully returned to work. Dr S.D's OpInIOn In thIS regard SImply does not COInCIde WIth the facts at hand. As I understood the Employer's pOSItIOn, It would have me find that the claimant ought not to receIve LTIP benefits because he was able to engage In other work. I am not prepared to make that findIng. As stated above It IS not necessary to address that aspect of thIS case However I thInk It IS pOSSIble that there mIght be CIrcumstances where a Clmm#67525 16 claimant can and does some work but It stIll "totally dIsabled" from performIng the essentIal dutIes of hIS or her own J ob Dunng thIS heanng, and In others, the Employer put forward the argument that the fact that the claimant was able to return to work IS eVIdence that he was not totally dIsabled In the first Instance For ObVIOUS reasons, that argument IS of lIttle or no assIstance Generally speakIng, neIther the fact of, nor the tImIng of, a claimant's return to work should be consIdered to theIr detnment. Hopefully a successful reIntegratIOn Into the workplace follows most absences due to Illness and InJury A recovery from an Illness or InJury does not lessen the realIty of ItS onset or path. For all those reasons, the appeal IS dIsmIssed. Dated In Toronto thIS 28th day of June, 2000 Clmm#67525