HomeMy WebLinkAbout2000-71309 Benefits Claimant 01-07-15 Decision
IN THE MATTER OF AN APPEAL
BEFORE
THE SUBCOMMITTEE OF THE
JOINT INSURANCE BENEFITS REVIEW COMMITTEE
REGARDING CLAIM # 71309
CHAIR LORETTA MIKUS
APPEARING FOR THE UNION MARK BARCLAY
APPEARING FOR THE EMPLOYER HIROKO SAW AI
Included In the most recent collectIve agreement between the partIes are the folloWIng
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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 Umon gnevance filed
under ArtIcle 22 13 (Umon Gnevance)
22 9 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 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 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
4 Duties of the Committee
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The dutIes of the CommIttee shall consIst of the folloWIng
(I) 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)
(iI) DetermInatIOn of the manner In whIch the specIficatIOns wIll be made
avaIlable for publIc tendenng;
(ill ) 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 Ontano on the selectIOn of
the Insurance carner or carners to underwnte 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
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
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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
( a ) 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
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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
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
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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 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
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 subJ ect matter of the appeal
If the Chair reqUIres clanficatIOn of medIcal eVIdence, a meetIng of the
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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 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.
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 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 FelIcIty Bnggs and I were asked to
act as the thIrd party or Independent chair
CLAIM # 71309
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At the first day of heanng the partIes agreed that the Chair should render a decIsIOn statIng
that the claim was properly or Improperly demed 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
appropnate 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
begInmng 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 pnncIples they can
be gUIded by In asseSSIng future dIsputes It IS hoped that as the Junsprudence develops,
there wIll be less need for lengthy decIsIOns because the fundamental pnncIples wIll already
by establIshed.
The claimant, Mrs LG has been employed as an Assessment Clerk (OAG 7) wIth the
Mimstry of FInance SInce 1975 Her last day of work was March 14 1997 Her absences
are the result of a long standIng dIagnosIs of rheumatOId arthntIs wIth addItIOnal and
attendIng complIcatIOns The first medIcal report IS dated 1994 and IS a bone scan that
IndIcated she had stress fractures at the proxImal aspects of the femora and that the bones of
her pelvIs appeared to be generally osteoponc Her rheumatologIst, Dr Thompson, saw her
In June of 1994 and concurred wIth the prevIOUS findIng that she had suffered two fractured
nbs and two fractured hIpS At the tIme he quened a dIagnosIs of osteoporosIs A
subsequent appoIntment In July reported the findIngs of another bone scan of that same
month whIch showed reduced bone mIneral densIty In the lumbar vertebrae and femoral neck
whIch placed her In the hIgh nsk category For that reason he suggested she be referred to a
specIalIst In treatIng osteoporosIs
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In January of 1996 she was seen agaIn by Dr Thompson whose report stated that she was
dOIng "extremely well," At the tIme she was takIng ten mIllIgrams of Methotrexate weekly
and four mIllIgrams ofPredmsone dally Ms LG complaIned of general thoracIc achIng that
worsened as the day progressed because her Job reqUIred her to SIt at a computer for most of
the eIght hours of her work day He felt that her paIn was lIkely fibromyalgOId even, though
she dId not exhIbIt the reqUIsIte tngger pOInts to JustIfy a dIagnosIs of fibromyalgIa.
In January of 1996 she also saw Dr Peppen, an orthopaedIc surgeon, for a semI-hard mass
on her heel that was tender to touch and caused paIn on walkIng. He belIeved It was a
possIble rheumatOId nodule and advIsed It be surgIcally excIsed. A subsequent Apnl1996
bone scan IndIcated exceedIngly thIn bones wIth very low hIp densIty measurements placIng
her agaIn at the hIgh nsk category for future fractures
Throughout thIS tIme there had been comments In the medIcal reports about the fact that the
complaInant was depressed and In February of 1997 she was referred to Dr McNeIl, a
psychIatnst, for a consultatIOn. In addItIOn to reVIeWIng her medIcal hIStOry he noted that
she reported frequent tensIOn headaches, tachycardIa and palpItatIOns under stress,
sIgmficant IndIgestIOn and heartburn, chromc constIpatIOn, dry mouth, dry eyes and Impaired
VI SIOn Most Importantly she reported constant fatIgue Her sleep was restless and on
wakIng she expenenced Intense paIn that persIsted throughout the day She was often short-
tempered and IrrItable WIth decreased concentratIOn WIth the result that she could read or
watch TV very lIttle Although she was tearful dunng the IntervIew he also noted she
showed a sense of humour was forthnght and answered hIS questIOns WIthout heSItatIOn. He
concluded that she was clImcally depressed secondary to her rheumatOId arthntIs process
and dId not belIeve she could contInue to work because of her physIcal and emotIOnal
problems She had been takIng AmItnptylIne for her paIn, whIch he dIscontInued In the
hopes of allevIatIng her depressIve symptoms
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Her prognosIs was very guarded In March of 1997 The claimant ceased workIng due to her
medIcal and psychIatnc problems In Apnl of that same year A letter from Dr Gorrell at the
Four Oaks FamIly Care ClImc stated at that tIme "she IS mentally and emotIOnally exhausted
by the chromc paIn of her dIsease and IS not able to SIt for any prolonged penod and IS
findIng It IncreasIngly dIfficult to concentrate for any useful penod of tIme There IS as yet
no sIgn of her dIsease gOIng Into remISSIOn. It would appear that thIS lady IS now totally
dIsabled. "
In May of 1997 the claimant filed an applIcatIOn for group dIsabIlIty benefits wIth ManulIfe
The AttendIng PhysIcIan's Statement dated May 22 and completed by Dr Gorrell noted
that the symptoms first appeared In October of 1989 and that the dIsabIlIty commenced on
March 3 1997 The pnmary dIagnosIs was rheumatOId arthntIs and depressIOn, the
secondary dIagnosIs was osteoporosIS and spInal fractures Under physIcal Impairment he
noted that she was ambulatory but was confined to medIUm functIOnal capacIty or capable
only of lIght actIvIty He remarked that she could not SIt at the computer due to paIn In her
back and shoulders accompamed by very paInful JOInts In her elbows, wnsts and wnsts
AddItIOnally she was unable to concentrate due to her paIn. Her dIsabIlIty prevented her
from performIng her regular occupatIOn or any occupatIOn and he noted that she would never
recover sufficIently to perform her dutIes It was hIS OpInIOn that she was not sUItable for
tnal employment on the basIs that there was no cure for her dIsease and because of the
complIcatIOns from the medIcatIOns that she needed to take to manage her dIsease Under
final remarks he noted "thIS lady IS not able to be gaInfully employed agaIn."
Another bone densIty study was done at the OsteoporosIs ClImc In May of 1997 whIch noted
that she had shown a sIgmficant Improvement In her bone densIty over the last year whIch
was encouragIng.
In August of 1997 Dr Thompson submItted an AttendIng PhYSIcIan's Statement but rather
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than fillIng In the appropnate sectIOns of the applIcatIOn wrote a narratIve report. In that
report he revIewed her medIcal hIstOry IncludIng the precIpItatIng IncIdent In 1989 of the
onset of her dIsease and her treatment SInce then. He noted that he had last seen her In
January of 1996 when he notIced her fibromyalgIc tender areas but that on hIS eXamInatIOn
of that day of August 1997 she only had one tender area. He stated that "It seems clear
therefore that neIther fibromyalgIa nor rheumatOId arthntIs are overtly but perhaps
surreptItIOusly related to her InabIlIty to work. He contInued as follows
Her work, as you know mvolves sIttmg at her desk all da, Long prolonged sIttmg results m
mcreased stIffuess and soreness generalh and If she gets up on her feet and IS standmg for
an, sIgmficant penod of tIme she has faIrh marked metatarsalgia. As well, the kevboardmg
mvolved results m nght palmer forearm, wnst and long finger pam - an overuse syndrome
that could well be aggravated b, the underlvmg rheumatOId diatheSIS More than thIS,
however what seems to mterfere wIth her abIht, to work, IS profound fatIgue (she finds
herself nappmg around mIdda, roughh one da, out of two) and an mabIht, to concentrate
She also describes extreme ImtabIht, m mappropnate SItuatIOns and frequent tearfulness I
do know that she has seen a psvchIatnst who has stated that she IS chmcalh depressed and
thIS IS certamh mterfenng wIth her abiht, to work. From m, observatIOn I can onh agree
wIth hIS conclUSIOn. Accompanvmg the Manuhfe FmancIal Request for InformatIOn was a
physIcal capacItIes form whIch I sImph find Impossible to complete I would doubt If there
are man, phYSICIanS (If an, ) who are adequateh tramed or ommSCIent to complete such a
form If thIS kmd of mformatIOn IS sought, the best place to get It would be m a work
assessment settmg under the dIrect supervISIOn of an occupatIOnal therapIst - and such do
eXIst (I can sa, that all actIvItIes of daIh hvmg - from dressmg to gettmg m and out of bed to
eatmg, to tOlletmg, to runmng errands, etc are all associated wIth some dIscomfort and some
dIfficult,) Her Help Assessment QuestIOnnaire Score IS lOon a 0 - 3 0 scale) ThIS realh
hasn t changed over the last year or so
The Health Assessment QuestIOnnaire he referred to In hIS letter asked about the claimant's
abIlIty In areas such as dreSSIng, nSIng, eatIng, walkIng, hygIene, reachIng, gnppIng
actIVItIes In most of the categones It was marked that she could do the actIVIty but wIth
some dIfficulty
Probably as a result of that letter an appoIntment was arranged for the claimant to attend at
the Acute InJunes RehabIlItatIOn and EvaluatIOn Centre for a functIOnal abIlItIes evaluatIOn.
The testIng commenced on October 8 1997 was completed on October 16 1997 and was
performed on the basIs of a dIagnOSIS of rheumatOId arthntIs, osteoporOSIS and spInal
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fractures of the vertebrae and depressIOn. The medIcatIOns she was takIng at the tIme were
Predmsone, Methotrexate, Fosamax, HydroxyzIne, Amatnptolyene, Premanne, Provera,
Tylenol and AnacIn The physIOtherapy screen dealt wIth IntermIttent bIlateral paIn In the
shoulders, fingefJoInts, wnsts, hIpS and feet, altered posture, decreased sharp/dull sensatIOn
In the sole of the left heel, bIlaterally decreased actIve ranges of motIOn In the shoulders
(functIOnal, but not full) decreased lumbar flexIOn (lImIted by hamstnng tIghtness) and
bIlaterally decreased strength In the arms and legs The summary of performance noted that
she had completed three seSSIOns for a total of approxImately ten hours and that she had been
able to match the J ob dutIes of the Property Assessment Clerk based on her lIftIng, carryIng,
pushIng and pullIng capacItIes The assessment found that she was currently workIng wIthIn
the sedentary range of that J ob and also noted that she had completed more than SIX hours of
SIttIng and had been observed to SIt contInuously for more than an hour at a tIme on a chair
wIth an Obus Form. She completed approxImately 39 mInutes of standIng, demonstratIng
good posture, and walked a total of approxImately 140 metres of Indoor even terraIn USIng a
steady gait. She ascended and descended a set of fourteen stairs once, USIng a recIprocal
gait and weIght beanng lIghtly on the nght hand raIlIng. She demonstrated functIOnal
lumbar flexIOn to bend forward at the Waist and reachIng to Just below Waist level and was
able to get down and crouch to work on a floor level task for approxImately 2 1Iz mInutes but
demonstrated dIfficulty In gettIng up She completed a work sImulatIOn of approxImately 96
mInutes duratIOn consIstIng of 42 mInutes of straight wntIng/copIng, 10 mInutes of
combIned wntIng and cataloguIng, 6 mInutes of calculatIng USIng an electromc calculator 13
mInutes of foldIng paper and stuffing envelopes and 25 mInutes of keyboardIng. She
completed the sImulatIOn wIthout takIng any break penods and demonstrated good follow-
through on InstructIOns, orgamzatIOnal skIlls and complIance
Under the category of conclusIOns and recommendatIOns It was stated that she was
complIant, pleasant and focused. At no tIme was she seen to have demonstrated dIfficulty
concentratIng on tasks, despIte the fact that vanous actIvItIes were gOIng on In the room at
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the same tIme It was decIded that her current functIOnal abIlItIes were compatIble wIth the
physIcal demands of the Property Assessment Clerk PosItIOn and that she was able to
tolerate prolonged penods of SIttIng, rarely needIng to get up and stretch. She completed
standIng tasks wIth no observable sIgn of dIfficulty wIth weIght-beanng and although her
overall speed, dextenty and coordInatIOn was slow It was concluded that It was due to
InactIvIty and fatIgue GIven the nature of her medIcal condItIOn, whIch was controlled by
medIcatIOn, the recommendatIOn was that she return to work on a part-tIme baSIS,
approxImately 3-4 hours a day for eIght weeks In addItIOn she would benefit from an
opportumty to SIt or stand as necessary mImmIZIng low level or above shoulder work,
rotatIng tasks so they were not repetItIve or sustaIned, havIng access to a cart to transport
obJects as opposed to carryIng them, and stretchIng her JOInts IntermIttently throughout the
shIft. It was suggested she would also benefit from a structured condItIOmng program of
pool exerCIses and educatIOn on JOInt protectIOn and energy conservatIOn. An ergonomIc
assessment was recommended to IdentIfy modIficatIOns to her work statIOn wIthIn the first
week of her return to work. Those recommendatIOns, It was belIeved, would allow her to
buIld up her endurance, strength and actIvIty tolerance F 011 OWIng the eIght week transItIOn
penod It was expected that she could resume full tIme actIvItIes on the condItIOn that her
medIcatIOns contInued to keep her rheumatOId arthntIs and osteoporosIs under control
At about the same tIme, that IS In October of 1997 the claimant underwent an Independent
medIcal assessment by Dr Durnen, a specIalIst In physIcal medICIne and rehabIlItatIOn. His
report of October 20 1997 noted that the claimant presented wIth complaInts of paIn In both
wnsts, paIn In the left nbs and IntermIttent paIn In the hIpS, knees and fairly chromc paIn In
the feet. It was noted that the wnst had been the most bothersome for the past year and the
nbs most bothersome for the past three years The paIn In the wnst and hand was
IntermIttent and was brought on or aggravated by tYpIng, vacuumIng, somewhat by meal
preparatIOn and opemng Jars and the lIke In addItIOn, she was expenenCIng shoulder paIn
In the front, pnmanly on the nght sIde on an IntermIttent basIs, whIch was relIeved by rest.
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In the lower extremItIes she reported steady paIn In the feet, IntermIttent paIn In the knees
and IntermIttent paIn In the lateral aspect of the nght buttocks ThIS paIn was aggravated by
walkIng and relIeved by lYIng down. She also noted that If she sat for long penods of tIme
she felt Increased paIn In her feet and Increased stIffness when she first rose He noted that
on a functIOnal enqUIry the patIent was markedly depressed and complaInIng of easy fatIgue
On eXamInatIOn he noted that she had a very mImmal paIn on resIsted abductIOn of her nght
extremItIes, no eVIdence of osteoarthntIs, no eVIdence of any cynovIal thIckemng and no
deformIty In the fingers He found no tenderness wIth pressure on the SpInUS processes,
paraspInal muscles or facets and no trapezIUs dIscomfort. The lower extremItIes were
normal and there was no InstabIlIty of the knees Hip range of motIOn appeared full, wIth no
apparent deformIty of the feet. On the basIs of these findIngs he concluded she had some
mIld nght rotator cufftendomtIs and possIble mIld nght trochantenc tendomtIs but that the
medIcatIOn she was on seemed to be suppreSSIng symptoms of her rheumatOId arthntIs qUIte
well
He then answered the questIOns put to hIm by the Insurer as follows
1 )What IS the medial conditIOn that limits the patient's workmg ability?
ThIS appears to be her rheumatoId arthntIs, whIch seems to be under control There
IS ven httle eVIdence of thIS now She does seem to have a nght rotator cuff
problem and nght trochantenc tendomtIs to a mIld extent. She does complam of
ease offatIgue and thIS ma, be a factor however obJectIveh there IS not much to
find that explams her mabIht, to work.
2 ) Do you anticipate the present level of disfunctIOn would Improve With further
medical treatment?
No She seems to be domg well WIth her medIcal treatment and I cannot see an,
need to change It.
CLAIM # 71309
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3 ) Do you concur with the diagnosIs and treatment to this date?
Yes, I would concur the medIcal treatment seems to be controlhng her rheumatoId
arthntIs problems qUIte well.
4 ) Is the patient's medical conditIOn now stable?
Yes, It appears to be I would not expect an, further recoven Actualh on the
baSIS of the eXaIUmatIOn she appears to be domg qUIte well
5 ) Is the patient's conditIOn such that engagmg m her normal occupatIOn could
result m harm to herself or risk to others?
I do not thmk that thIS would cause an, harm to others SImIlarh I do not see It
causmg harm to herself" although she ma, have trouble carrvmg out her Job The
problems would seem to be her ease of fatIgue her hIston of depreSSIOn and the
problems wIth her Jomts, whIch however do appear to be under control
6) Does the patient have a defimtlve Impairment that would prevent the ability to perform
the duties of her Job adequately and predictably?
Agam, on the baSIS of exammatIOn but not hIston It would appear that she would
be able to do her Job adequatel, and predIctabh However on the baSIS of her
hIston she would have problems domg repetItIve kevboardmg and possibh
workmg WIth her arms up Her Job IS sedentan so her dIscomfort m her feet should
not be a factor
7 ) What are the patient's present limitatIOns and tolerances for her work
activities?
Agam, thIS appears to be pureh subJectIve Agam there IS no obJectIve eVIdence of
sIgmficant pathology Based on her hIston her wnst and finger pam and shoulder
pam would be a factor m hmItmg her actIvItIes and her fatIgue abIhn would also be
a factor However as noted before there IS no obJectIve eVIdence of sIgmficant
pathology
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8 ) What temporary or permanent workplace accommodatIOns should enable the
claimant to safely return to work durmg or after recovery?
Other than makmg sure that the workplace IS set up wIth proper ergonomIcs wIth the
keyboard at the proper heIght, a SupportIve chair and reduced stress on the
shoulders, there IS not much else that can be done
9) If the claimant IS permanently disabled from performmg the pre-disability Job
IS she fit to undergo a vocatIOnal assessment?
Yes I thmk thIS patIent IS able to undergo a vocatIOnal assessment.
AN ovember 5 1997 letter from Dr Cnlly an Intermst at Parkwood HOspItal, noted that he
had first seen the claimant In 1994 for an assessment of pOSSIble osteoporosIs At the tIme It
was hIS OpInIOn that she suffered from some reductIOn of bone mass and should start on
hormone replacement therapy Between 1994 and 1996 her bone densIty contInued to fall
and she was treated wIth Fosamax. A later bone densIty In May of 1997 showed a
sIgmficant Improvement of the bone densIty of the spIne and InsIgmficant Improvement In
the hIp wIth the follOWIng conclusIOn
Her prognosIs IS probabh relatIveh good. She does have ven thm bones, but as she seems
to be respondmg to the bIsphosphonate therap, one would antICIpate that she would have
good fracture protectIOn for future years She wIll, however always be at some nsk and
needs to avoId actIVItIes whIch put her at nsk for falhng or an, actIvIn whIch reqUIres
bendmg and hftmg ActIVItIes or employment free of these nsk should not be a maJor
problem for her I should emphasIse however that I aIU talkmg pureh from the VIew of her
osteoporosIs and her bone strength and I have not taken mto account her arthntIs
Dr Cnlly also suggested that she would lIkely have to remaIn on therapy for her
osteoporosIs for the rest of her lIfe
On the baSIS on all the forgOIng InformatIOn, a letter was sent from the Insurer to the
claimant dated November 25 1997 denYIng her claim for long term dIsabIlIty benefits The
letter revIewed all of the PhysIcIan's Statements provIded to the Insurer whIch IndIcated that
she was capable of lIght actIVIty compatIble WIth the phYSIcal demands of her Job
CLAIM # 71309
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A letter dated January 5 1998 from Dr Thompson noted that although she suffered from
rheumatOId arthntIs, It was sufficIently suppressed at the tIme and had been for the past two
years that so there was no overt eVIdence of It. He dId, however state as follows
That IS not to say that the profound fatIgue and the shoulder gIrdle paIn that she
finds so debIlItatIng mIght not be caused by low grade rheumatOId InflammatIOn that
sImply Isn't beIng expressed wIth JOInt swellIng.
The Issue IS also confused by the fact that she has had a number of fibromyalgIa
tender areas - almost to the pOInt where one could make a dIagnosIs offibromyalgIa
(whIch of course could be related to her underlYIng rheumatOId dIsease) Further
complIcatIng the Issue IS the fact that she does have many symptoms of depressIOn,
whIch she finds very dIfficult to deal wIth.
In January of 1998 the claimant filed an appeal wIth the Insurer of the demal of her benefits
A March 27 1998 letter from Dr Gorrell was sent to the Umon In response to Inqumes
about her dIsabIlIty He noted that she had prevIOUS dIagnoses of rheumatOId arthntIs,
osteoporosIs and compressed spInal fractures, whIch were compounded by depressIOn due to
ongOIng paIn and mental and emotIOnal exhaustIOn. He also noted that It was unfortunate
that, when she underwent her evaluatIOn by Dr DurnIn, she was takIng Increased amounts of
Predmsone, whIch mIght have affected the results He suggested that It was InterestIng that
the functIOnal abIlItIes evaluatIOn covered a three hour penod on Increased medIcatIOn and
resulted In the conclusIOn that she was capable of workIng a SIX hour day after a gradual
return to work of three hours a day over eIght weeks Further he stated as follows
I have to take exceptIOn as to the dIstmctIOn between suppreSSIOn of rheumatoId
arthntIs as regards to the appearance of the Jomts as bemg hot and swollen and
whether or not the patIent has pam. As It IS well know the latter IS qUIte subJectIve
and we have no defimtIve wa, of measunng the aIUount of pam a patIent mIght
have It must be pomted out that thIS lad, stIll takes a sIgmficant aIUount of
medIcatIOn to control her rheumatoId arthntIs she stIll takes
1 ) Methotrexate 2 4 mg, 4 per week
2 ) Pregmzone 3 0 mg daIh
CLAIM # 71309
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3 ) Amatnptolene 50 mg qhs
4 ) Phosamax. 10 mg daIh
5 ) Premann. 0 09 mg daIh
6) Provera. 10 mg even three months
I aIU m no doubt that thIS lad, stIll has consIderable pam and dIscomfort m her lower back,
hands and feet whIch makes It dIfficult to SIt and type for an, penod of tIme She does
demonstrate normal mtelhgence and as she IS fort, -mne years old It would be wonderful If
she could find sUItable employment where she IS able to get up and move at wIll and perform
tasks that do not mvolve a lot of finger work. She IS not capable of an, manual work or
hftmg or cam'mg and should avoId an, stress to her vertebral column.
A letter dated March 31, 1998 from Dr Thompson to the Umon stated as follows
I aIU enclosmg a cop, of m, vanous recent consultatIOn notes on LG commencmg
m March 1995 and carn'mg through Januan 1996 and August 1997
Lookmg back on m, expenences wIth her I would have to sa, that the mItIal problem -
rheumatOId arthntIs - has been reasonabh well suppressed wIth medIcatIOn, but that she has
developed secondan fibromvalgm. In man, respects It would be better were she to have
contmued rheumatoId arthntIs mflammatIOn - that IS much eaSIer to treat than fibromvalgm,
and IS accepted b, more of the vanous partIes as bemg a legItImate reason for dIsabiht, In
the case of fibromvalgm, the problem IS persIstmg pam and fatIgue - thmgs that are
extremel, dIfficult to quantItate and almost Impossible to reduce to obJectIve paraIUeters It
doesn t surpnse me therefore that Dr Durnm mIght have found her capable of domg all sorts
ofthmgs, mcludmg fine motor dextent, coordmatIOn, reachmg etc
I thmk It mIght be helpful to Ms LG to have her current status reVIewed b, a rheumatologIst
who accepts the vahdIt, of the dIagnOSIS offibromvalgm (the msurance companIes seem to
have no dIfficult, findmg phYSICIanS who for a fee are wilhng to den, that partIcular chmcal
construct) Although It ma, take some tIme to have her seen, the three mdIvIduals at the
London Health SCIences Centre UmversIt, CaIUpUS (Drs Bell, WhIte Hearth) have
partIcular expertIse m thIS area.
By letter dated Apnl 2, 1998 the Insurer Informed the claimant that on the basIs of the
medIcal documentatIOn avaIlable her claim for benefits was beIng demed. A subsequent
letter dated July 23 1998 from ManulIfe set out more fully the reasons for the demal of her
appeal It referred to Dr Cnlly's VIew that, because she would always be at nsk because of
her thIn bones, she should aVOId actIvItIes that reqUIre bendIng and lIftIng or the possIbIlIty
of fallIng. However actIvItIes or employment free of those nsks would not be a problem
It referred to Dr McNeIl's January 1998 comment whIch noted that the depreSSIOn was
CLAIM # 71309
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secondary to her rheumatOId Illness, chromc paIn, chromc sleep loss, chromc dIsabIlIty and
that he had not expected her to return to work In February 1997 However It noted that, at
that tIme, she was stIll workIng and contInued to do so for another month. The Insurer also
noted that In 1996 she was only absent for Illness for 15 days and that there had been no
sIgmficant change In her condItIOn In 1997 that would suggest that she would be unable to
maIntaIn that attendance The Insurer advIsed her that the employer had confirmed that she
would be able to get up and move away from her computer when necessary and that any of
the lImItatIOns mentIOned by the consultIng physIcIans had been or could be accommodated.
On that basIs, she was not totally dIsabled from performIng the essentIal dutIes of her
occupatIOn and her claim was therefore demed.
A January 7 1999 letter from Dr Gorell to the Canada PenSIOn Plan agaIn revIewed her
medIcal hIStOry and medIcatIOns and then commented that "consequently I feel It may be
very dIfficult for her to be employable In a workplace"
In January of 1999 she was seen as an outpatIent at the FIbromyalgIa ClImc of the London
Health SCIences Centre After reVIeWIng her medIcal hIStOry they noted that she had twelve
fibromyalgIc tender pOInts In addItIOn, there were nodules In several locatIOns, IncludIng
the dorsal of the left second PIP J OInt, the first MTP J OInt over the medIal aspect and the
planter surface of the first MTP JOInt.
TheIr assessment was as follows
I would agree wIth you that thIS patIent has fibromvalgIa. She m her own mmd, IS
somewhat confused b, thIS and she has some dIfficult, clearh m determmmg whIch of her
musculoskeletal symptoms are related to fibromvalgIa and whIch ma, reflect the effects of
the rheumatoId arthntIs Chmcalh her rheumatoId arthntIs seems to be relatIveh qUIescent,
although there are a few actIve Jomts wIth obJectIve findmgs She has nodules whIch ma,
be methotrexate reduced. I don t know whether she IS seno-posItIve or seno-negatIve and
whether her x-rays have ever shown erosIve changes I am not certam whether her
rheumatoId arthntIs has worsened smce you saw her a year ago or not. It ma, be that some
of her symptoms of dIsabIht, are contributed to b, her rheumatoId arthntIs Accordmgh I
ordered a x-ra, of feet to assess daIUage CBC sed rate and a rheumatoId factor test toda,
CLAIM # 71309
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She has fibromvalgIa and thIS Itself IS mcapacItatmg to her affectmg her level of energy and
she does have wIdespread pam.
She certamh has several reasons to be dIsabled. At the present tIme I thmk It would be
necessan to do a work assessment to determme whether she could ever return to work m a
sItuatIOn whIch mvolved repetItIve use of her hands m the capacIt, whIch was related to her
prevIOUS employment as a computer operator
That letter was SIgned by Dr Bell He followed up wIth a letter to Dr Thompson suggestIng
that the test had IndIcated InactIve rheumatOId arthntIs dIsease but propOSIng that the
claimant conSIder becomIng a partICIpant In the fibromyalgIa day care program.
A February 25 1999 letter from Dr Gorrell noted the folloWIng
As her rheumatoId arthntIs has contmued unchanged for the conSIderable penod of
tIme the outlook m her case IS somewhat guarded as at no tIme has she gone mto a
remISSIOn. In addItIOn, as she IS now further troubled wIth fibromvalgIa, chromc
obstructIve pulmonan dIsease bIlateral metatarsalgIa and ongomg depreSSIOn, I feel
It would be ven dIfficult for her to be employable m the workplace
A May 1999 bone denSIty study from the OsteoporosIs ClImc IndIcated that her condItIOn
was stable and that the results were very satIsfactory
In June of 1999 the claimant was asked to complete an ActIvItIes of Dally LIVIng Form and a
Claimant QuestIOnnaire wIth respect to her abIlIty or dIsabIlIty Her comments on those
forms are conSIstent WIth the symptoms that she had been reportIng over the years
In July of 1999 Dr Thompson wrote a letter to Dr Gorrell In whIch he noted that he was
beIng asked to see the claimant as part of her ongOIng struggle to obtaIn some
acknowledgement of dIsabIlIty from the Insurance company or the CanadIan Government.
He noted that aSIde from the metatarsalgIa, there was no eVIdence of actIve rheumatOId
arthntIs at the tIme he saw her and he concurred wIth Dr Bell's conclUSIOn that the maJor
Issue was fibromyalgIa. For that reason It was hIS VIew that he dId not need to see her agaIn
unless her rheumatOId arthntIs flared up
CLAIM # 71309
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In September of 1999 she was referred for another mobIle functIOnal abIlItIes evaluatIOn
whIch was conducted on September the 13 and 14 of that year Dunng the test It was
observed that her performance was InCOnsIstent WIth the test results, whIch, It was suggested,
could be attributed to self lImItIng effort and paIn behavIOur Those InCOnsIstencIes Included
phYSIOlogIcal responses that dId not support the paIn reports, an a-tYPIcal lack of an Increase
In the heart rate wIth paIn and a perceptIOn of her abIlItIes that was not consIstent WIth her
observed abIlItIes It was concluded that she demonstrated the abIlIty to meet the outlIned
sedentary Job demands of her posItIOn and the abIlIty to perform self care adequately She
was able to walk 596 metres at an average pace of 3 2 kIlometres an hour wIthout any
Increase In heart rate or any complaInts of paIn or physIcal dIstress Her walkIng test results
were 67 3% of a normal healthy person's capacIty whIch, It was determIned, was sufficIent
to meet the energy demands of Industnal Jobs In a sedentary category
In September of 1999 the Insurer engaged the servIces of an InVestIgatIOn company to
observe the claimant to determIne whether there where any InCOnsIstencIes In her actual
actIvItIes and her purported dIsabIlIty The claimant was never advIsed about eIther the fact
of or the results of the InVestIgatIOn, whIch IS troublIng. She was gIven no opportumty to
explaIn what was on the vIdeo tapes More sIgmficantly It does not appear that the
Insurance company relIed on that InVestIgatIve report In reachIng ItS decIsIOn to deny her
benefits There IS no reference to It In any of the letters sent to the claimant and I conclude
from that omISSIOn that the Insurer dId not rely on It In It'S decIsIOn to deny her claim
AddItIOnally It should be noted that there was nothIng In the InVestIgatIve report that would
have assIsted the Insurance company In any event.
On October 18 1999 the claimant was advIsed that they had revIewed her entIre file and
concluded the folloWIng her rheumatOId arthntIs was under control and, whIle she
complaIned of paInful feet, x-rays of both her feet showed no erosIve changes or sIgns of
CLAIM # 71309
22
cartIlage loss It was recommended she use orthotICS to exerCIse more comfortably The
Inescapable conclusIOn was that she was not dIsabled because of her rheumatOId arthntIs
Her osteoporosIs was now stable and, whIle It Imposed some lImItatIOns agaInst heavy
lIftIng, there was no such reqUIrement In her posItIOn. With respect to her chromc
obstructIve pulmonary dIsease, the findIngs were IndIcatIve of someone who was capable of
at least lIght exertIOn and, SInce her Job was sedentary It was concluded that she retaIned
the functIOnal abIlIty to perform the dutIes of her own occupatIOn. Although she had been
dIagnosed as suffenng from depressIOn, she was last seen by a psychIatnst In February of
1997 and the Insurance company concluded that her symptoms were not totally dIsablIng or
she would have sought more aggressIve and frequent treatment by a specIalIst In psychIatry
Although she had been dIagnosed wIth fibromyalgIa the functIOnal capabIlItIes test
performed IndIcated that she was able to do sedentary work, IncludIng SIttIng for eIght hours
a day and was fit to return to her posItIOn.
REASONS FOR DECISION
HavIng consIdered the reports referred to In thIS decIsIOn and the submIssIOns of the partIes,
I have come to the conclusIOn that the Insurer has made the nght decIsIOn In denYIng long
term dIsabIlIty benefits to Mrs LG
It IS clear that as far back as 1989 and certaInly In 1994 she was suffenng from a senous
medIcal condItIOn that reqUIred large amounts and vanetIes of medIcatIOn to allevIate the
paIn and reduce the nsks of further damage to her bones However two years later her
rheumatIOd arthntIs and osteoporosIs were beIng treated successfully and she was dOIng
"extremely well" accordIng to her rheumatologIst. The subsequent medIcal reports
consIstently noted the absence of any further complIcatIOns concermng her osteoporosIs
The claimant was also dIagnosed as suffenng from depressIOn and was seen by a psychIatnst
CLAIM # 71309
23
In 1997 Although he concluded she was unable to work, hIS OpInIOn was that her depressIOn
was secondary to her rheumatOId arthntIs, wIch was the pnmary cause of her physIcal and
emotIOnal problems In any event, she only saw a psychIatnst that one tIme and, although
there are subsequent references to her depressIOn, the faIlure to seek treatment on an ongOIng
basIs suggests that It was not the pnmary reason for her InabIlIty to return to work.
Her maJor complaInts dunng thIS tIme were related to her rheumatOId arthntIs, whIch was
sufficIently paInful to cause InteruptIOns In her sleep patterns, her abIlIty to concentrate and
her abIlIty to return to work. It was thIS paIn and ItS accompanYIng complIcatIOns that were
responsIble for her depressIOn. In fact, It was sometIme In 1997 that references began
appeanng In the reports to fibromyalgIa and fibromyalgOId type tngger pOInts
However dunng thIS same penod of tIme, she underwent a functIOnal abIlItIes evaluatIOn
that acknowledged she had some lImItatIOns on her physIcal abIlItIes and dIfficulty wIth
concentratIOn but nevertheles showed she was capable of performIng the dutIes of her own
posItIOn of Assessment Clerk, albeIt wIth some modIficatIOns SpecIfically she reqUIred a
work hardemng program to enable her to buIld up endurance, strength and tolerance All of
these recommendatIOns were based on the premIse that her rheumatIOd arthntIs and
osteoporosIs contInued to be controlled by medIcatIOn.
An Independent medIcal assesment performed at the same tIme came to the same conclusIOn.
It too acknowledged some problems wIth her rheumatIOd arthntIs and osteporosIs but found
them to be controlled well by medIcatIOn and found her able to perform the dutIes of her
posItIOn WIth modIficatIOn.
These findIngs prompted the first demal of benefits In November of 1997 The reports filed
after that demal are consIstent WIth the earlIer reports referred to In thIS appeal For
example, a letter from her own physIcIan, whIle supportIng her claim for dIsabIlIty benefits,
CLAIM # 71309
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concludes wIth the comment
aIU m no doubt that thIS lad, still has consIderable pam and dIscomfort m her
lower back, hands and feet whIch makes It dIfficult to SIt and type for an, penod of
tIme She does demonstrate normal Intelligence and as she IS forty-mne years
old It would be wonderful If she could find SUitable employment where she IS
able to get up and move at will and perform tasks that do not Involve a lot of
finger work. She IS not capable of any manual work or lIftmg or carrymg and
should aVOid any stress to her vertebral column. (M, emphasIs)
These comments suggest that, subJ ect to the lImItatIOns set out In the report, she was capable
of some lIght sedentary work.
AddItIOnally a letter from her rheumatolgIst In 1998 does not state In clear terms that she In
unable to return to modIfied dutIes He confirms her ImtIal problem, that IS rheumatIOd
arthntIs, has been suppressed wIth medIcatIOn but states that her maJor problem IS now
fibromyalgIa. He accepts Dr DurnIn's findIngs wIth respect to her abIltIty to perform some
work-related dutIes, but suggests she see a specIalIst In the treatment offibromyalgIa. An
eXamInatIOn by the FIbromyalgIc ClImc confirmed Dr Thompson's dIagnosIs, agreeed that
she has reason to be dIsabled but does not state uneqUIvocally that she IS dIsabled. Rather It
was recommended she undergo another functIOnal abIlItIes assessment to determIne the
possIbIlIty of returnIng to work. That assessment was conducted In September of 1999 and
agaIn showed that she was capable of meetIng the energy demands of an Industnal J ob In the
sedentary category
WhIle I accept the reports to the extent that they express concerns about the repetItIve nature
of her posItIOn as Assessment Clerk, In partIcular the keyboardIng component, the employer
had IndIcated It was prepared to modIfy her posItIOn to aVOId the repetItIve and lIftIng
demands of the her dutIes All of the functIOnal abIlItIes assessments done between 1997
and 1999 show that she would have been able to return to modIfied dutIes Whether her
dutIes could have been modIfied enough remaInS to be seen. Nevertheless the Inescapable
conclusIOn from these reports IS that she could have returned to her posItIOn In some capacIty
and was able to perform the essentIal dutIes of her own occupatIOn. Her appeal IS therefore
CLAIM # 71309
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demed.
Dated thIS 15th day of July 2001
Loretta Mikus
~-
,'- ...._~
CLAIM # 71309