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HomeMy WebLinkAbout2000-97511 Benefits Claimant 00-12-15 Decision Included In the most recent collectIve agreement between the partIes are the folloWIng provIsIOns Article 22 - Grievance Procedure Article 22.9 - Insured Benefits Grievance 2291 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 CLAIM # 97511 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 onl y) (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 descnbe the benefits to be provIded, the cost shanng arrangement between the Employer and ItS employees, the past financIal hIStory of the Insurance plans, the employee data, the format for the retentIOn IllustratIOn for each coverage and the financIal reportIng reqUIrements Tenders shall be entertaIned by the CommIttee from any IndIVIdual Insurance carner actIng solely on ItS own behalf ThIS shall not preclude such carner from arrangIng reInsurance as may be necessary The basIs for recommendatIOn of an Insurance carner(s) wIll Include the abIlIty of the carner(s) to underwnte the plan, complIance of the carner's quotatIOn wIth the specIficatIOns for tender the carner's servIce capabIlItIes and the expected long term net cost of the benefits to be provIded. 1 Experience Review 2. Claims Review Subcommittee (a) There shall be a subcommIttee whose mandate IS to reVIew and make decIsIOns on, complaInts or dIfferences InvolvIng the demal of Insured benefits under the Central CollectIve Agreement, when such Issues have not been resolved through the eXIstIng admInIstratIve procedures, save and except a complaInt or dIfference ansIng under ArtIcle 22 9 1 (Insured Benefits Gnevance) of the Central CollectIve Agreement. The subcommIttee shall be composed of two (2) representatIves selected by the Employer two (2) representatIves selected by OPSEU and an Independent thIrd party who IS agreed to by both partIes (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 CLAIM # 97511 ~ 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 "LTIP") That memorandum stated JIBRIC CLAIMS REVIEW SUBCOMMITTEE TERMS OF REFERENCE AUTHORITY The JIBRC subcommIttee IS establIshed under ArtIcle 229.2 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 CLAIM # 97511 Employees wIth claims that have been removed from JIBRC wIll be notIfied of such, In a tImely manner by letter (referred to as the "NotIce Letter") to theIr last known address An employee whose claim has been removed, has 45 days, from the date of the notIce letter to submIt a request In wntIng to OPSEU askIng that OPSEU refer theIr case to the subcommIttee ThIS letter must be copIed to the Management Co-Chair of the JIBRC OPSEU has 90 days from the date of the notIce letter to advIse the Management Co-Chair of JIBRC of theIr decIsIOn to agree or deny the request to appeal If notIce IS not receIved from OPSEU wIthIn 90 days from the notIce letter then the claim wIll be deemed to be wIthdrawn. SCOPE OF COMMITTEE The SubcommIttee represents the final stage In the appeal process The SubcommIttee wIll clanfy medIcal eVIdence as needed, wIth a medIcal consultant agreed to by both MBS and OPSEU DeCISIOns of the SubcommIttee are final and bIndIng. Upon receIpt of the decIsIOn, a Memorandum of Settlement (as attached) wIll be prepared and sIgned by the partIes and forwarded to the Insurer SUBCOMMITTEE MEMBERSHIp. The subcommIttee wIll consIst of resource representatIves from OPSEU and MBS and an Independent thIrd party "Chair" to be named by MBS and OPSEU ROLE OF THE CHAIR" To reVIew case representatIOns from MBS and OPSEU To make a determInatIOns In wntIng wIth respect to each case DeCISIOns must be In accordance wIth the OPS CollectIve Agreement between the Employer and OPSEU and consIstent WIth the group Insurance plans In place at the tIme facts gIVIng nse to the dIspute arose ROLE OF MEDICAL CONSULTANTS 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 CLAIM # 97511 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 subJect matter of the appeal If the Chair reqUIres clanficatIOn of medIcal eVIdence, a meetIng of the SubcommIttee wIll be arranged wIth a medIcal consultant agreed to by both MBS and OPSEU or faIlIng such agreement, wIth a medIcal consultant called by the Chair MBS and OPSEU wIll JOIntly present a statement of agreed upon facts (to the extent possIble) for the appeal to the Chair ASIde from the ImpartIal medIcal consultant dIscussed above, no other wItnesses wIll be called, except by request of the Chair However the IndIVIdual claimant wIll be allowed to file a wntten statement In lIeu of testIfYIng. If the IndIVIdual claimant chooses to file a statement It must be provIded to the Management Co-Chair of JIBRC at the same tIme as OPSEU's request for appeal MBS has the nght to Introduce a wntten response to thIS statement. OPSEU wIll present ItS posItIOn on the case wIth supportIng arguments to the Chair MBS wIll present ItS posItIOn on the case wIth supportIng arguments to the 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. CLAIM # 97511 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 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 have already been establIshed. In thIS case the partIes provIded an agreed statement of fact as follows 1 D.D IS employed as a CorrectIOnal Officer 2 at ElgIn Middlesex DetentIOn Centre 2 The claimant was on short term sIck leave from hIS posItIOn from August 24 1997 to February 3 1998 3 The claimant applIed for Long Term Income ProtectIOn benefits November 24 1997 and was demed. CLAIM # 97511 4 The claimant returned to hIS posItIOn WIth the Employer on September 4 1998 EIghty percent of the claimant's dutIes as a CorrectIOnal Officer were descnbed by the Employer as follows performs under general supervIsIOn a full range of dutIes related to the care control, supervIsIOn and custody of Inmates on an assIgned ShIft, such as, takIng charge of an area of the InstItutIon, observIng for IrregulantIes affectIng secunty dIscIplIne, safety' refernng to supervIsor or takIng appropnate actIOn In accordance wIth rules, regulatIOns, procedures, searchIng Inmates, lIvIng umts, cells and other areas as reqUIred, keepIng log records of count and ShIft actIvItIes adVISIng Inmates of theIr nghts and oblIgatIOns, warmng/counsellIng Inmates, laYIng mIsconduct charges, provIdIng oral and wntten reports, as reqUIred, regardIng IncIdents, own or others actIOn, conduct, Industry of behavIOur of Inmates, escortIng Inmates, ISSUIng dIspensed medIcatIOn, supplIes, meals, etc to Inmates, and ensunng Inmates receIve own/adequate reqUIrements only' contnbutIng to Inmate adJustment by personal example of speech, dress, conduct; proceSSIng Inmate mall, forwardIng Inmate requests to appropnate personnel or handlIng personally- supervISIng Inmates dunng recreatIOn, work partIes, VISItS, processIng Inmates on admIssIOn/dIscharge, IncludIng venfYIng commIttal warrants, properly IdentIfYIng offender makIng punch clock rounds respondIng appropnately to InstItutIOn emergencIes, e g. fire, escape attempts, performIng other dutIes related to Inmate safety secunty A medIcal consultatIOn dated August 13 1997 descnbed the CIrcumstances precIpItatIng the claimant's condItIOn and hIS dIagnosIs That consultatIOn was prepared for the claimant's physIcIan, Dr WaInwnght, by Dr Max, a Consultant PsychIatnst In the department of PsychIatry at the London Health SCIences Centre and stated, In part, as follows I saw your 50 year old patIent on August 13 1997 In response to your sense of urgency HavIng met wIth hIm on thIS occaSIOn and wIth some reVIew of the CIrcumstances I can easIly apprecIate the dIstress that he IS creatIng. As you know he IS employed at the DetentIOn Centre and last week there was a death threat Issued at hIm by a fellow employee (R) and the Intermediary for thIS threat was another officer who reported thIS to the polIce There has been no sIgmficant response to thIS as the patIent belIeves that the conveyer of thIS threat has changed hIS story There IS acknowledgement that D.D and R have been at odds wIth each other for a great length of tIme The man's dIfficultIes, as you know go back to 1994 He had an altercatIOn wIth hIS supenors and was beIng challenged wIth a repnmand, whIch he defended very Intellectually and presumes that thIS was IntImIdatIng to hIS supenors FolloWIng thIS were the charges of sexual assault of whIch he has been vIndIcated and ever SInce then he has had a feelIng of ongOIng harassment by hIS supenors In partIcular In response he has made attempts to find alternate employment but has been unsuccessful CLAIM # 97511 He IS currently on leave and feels that he would be unable to functIOn at work at thIS tIme His current symptomatology IS of some recogmtIOn that hIS self-perceptIOn had changed over the past SIX months and In fact others are observIng changes In hIS behavIOur as well His lIst of descnptIOns Include Insomma of both IntermIttent and termInal type, memory Impairment of sIgmficant degree In that he has always pnded hImself on hIS skIlls, he has become compulsIve about eatIng, unduly SUSpICIOUS about most people and descnbes havIng a sense of hopelessness and feels there IS no way out of hIS sItuatIOn at the work place He has lost hIS sense of humour and thIS IS somethIng that he and hIS famIly apparently always pnded themselves upon. He expresses feelIng tIred all of the tIme and IS begInmng to dIsrupt a number of relatIOnshIps In hIS lIfe He goes on to feelIng betrayed, almost wonders whether he IS beIng stalked, demes any sUIcIdal feelIngs but IS expenencIng feelIngs of retalIatIOn. ImtIally thIS retalIatory style was desIgned Intellectually so that he felt he could out-perform and out-thInk hIS supenors but these strategIes have changed so that now he has In fact thoughts whIch are really qUIte dIsturbIng and In fact are of kIllIng several people, pnmanly hIS supenors and R In partIcular There IS no expanSIOn of hIS feelIngs of mIstrust beyond thIS group He presented as a very anxIOUS lookIng man wIth a very controlled, soft VOIce and very lIttle affectIve dIsplay except for tImes when he would really look very happy and smIle, partIcularly when he would talk about hIS mother He walked somewhat slowly wIth a stooped posture, spoke somewhat slowly and clearly and was very cooperatIve and self- dIscloSIng. He finds It very dIfficult to talk about how he feels and partIcularly aVOIds the word depressIOn but does have a depressed appearance There IS no clear perceptual dIsorder or dIsturbance but I do sense an emergIng degree of undue SUSpICIOusness and paranOIa whIch lIkely has some authentIc roots Nevertheless the vanous behavIOurs suggest that he IS much more dIstressed than he appears on the surface DIagnostIcally I thInk there IS no questIOn that he IS In the mIdst of a maJor bout of depressIOn although he cannot verbalIze hIS current feelIngs Nevertheless, he has most of the other features of maJ or depressIOn and It IS vergIng on pSYChOtIC dIstortIOn. I share your concerns about hIS potentIal homIcIdal feelIngs but these are dIrected at the work place only RecommendatIOns at the present tIme there IS no questIOn but that he should aVOId returnIng to work untIl he IS much more comfortable He IS reCeIVIng some counsellIng through Employment AssIstance Plan, seeIng Jack Kaplan and I thInk that thIS should be maIntaIned. He has used some Lorazepam from you but I would dIscourage the use of thIS agent because of ItS potentIal dISInhIbItIOn. More fundamentally I would treat hIS depreSSIOn In an aggressIve fashIOn wIth an antIdepressant of chOIce I would support anyone of the newer agents of SSRI type and perhaps PaxIl mIght be as easy to admInIster as any of them stanng at 20 mg In the mormng. I thInk however that he should also be on a low-dose antIpsychotIc whIch he could use at mghttIme whIch would also enhance hIS problems wIth Insomma. SomethIng lIke StelazIne startIng at 2 mg and perhaps IncreaSIng It up to 5 mg mIght be sufficIent. CLAIM # 97511 I don't belIeve that any addItIOnal InterventIOns are IndIcated at thIS tIme but I dId advIse hIm that should hIS ImpulsIvIty become more alarmIng that he should reach out for assIstance I IdentIfied for hIm my concerns about beIng unable to offer hIm any ongoIng treatment because of my ImpendIng retIrement. You mIght want to refer hIm to someone else for some ongOIng treatment unless you feel more comfortable about your own role at thIS tIme I wIll be dISCUSSIng thIS wIth you ObvIOusly by the tIme you have read thIS letter Another consultatIOn was arranged wIth Dr Sharma, the AssIstant Professor of PsychIatry at the London PsychIatnc HospItal who provIded Dr WaInwnght wIth the folloWIng report, In part, dated August 29 1997 When seen today Mr D.D mentIOned that thIS IS the worst he has ever felt. He stated that he has been In a state of sIege at work for the past four years EarlIer thIS month he was told that a co-worker had threatened to kIll hIm The polIce was (SIC) also Informed of thIS man's IntentIOns The patIent has been on leave SInce August 07/97 He IS not hopeful of beIng able to resolve thIS problems at work. He has spoken to hIS MP In thIS regard and he has also been In touch wIth an outsIde agency responsible for enforcIng workplace harassment polIcIes He apparently got along well wIth hIS employees and hIS coworkers untIl 1994 Around thIS tIme he was Involved wIth legal work refusal because of certaIn changes at work. He was suspended from work after charges were laid agaInst hIm for sexually assaultIng Inmates He was acqUItted of these charges but he belIeves that the harassment by hIS employer has not stopped. He reported that he finds hIS employer completely unaccountable He has thoughts of wantIng to kIll a couple of people at work but he added that he could not pIcture hImself dOIng It. Upon dIrect questIOmng he admIts to havIng vanous symptoms suggestIve of depressIOn, IncludIng vanable appetIte, sleep Impairment, poor concentratIOn, lack of energy and loss of hIS sense of humour He added that he has not been able to dwell on the posItIve aspects of hIS lIfe In the month of July (SIC) he also expenenced what he calls sexual dIsfunctIOn. It was not clear as to when he started havIng symptoms of depressIOn. Dunng the IntervIew today he dId not appear sad or anxIOUS but he reported hIS mood as beIng low There was no eVIdence of psychomotor retardatIOn/agItatIOn. He made good eye contact and he was able to relate the hIStory qUIte well He demed any thoughts of sUIcIde but he expressed feelIngs of hopelessness DIagnostIcally thIS gentleman meets the cntena for maJor depreSSIOn-SIngle epIsode Clearly he IS gOIng through a great deal of stress and thIS has contnbuted to the current sym ptomatol ogy However on the basIs of Just one IntervIew the possIbIlIty that depressIOn may have contnbuted to the stress at work In the first place cannot be ruled out. I suggested that he should stay on the current dose of methotnmeprazIne that he maIntaInS helps hIS sleep I shall remaIn Involved In hIS care CLAIM # 97511 Dr Sharma wrote a letter to the Employer dated September 8 1997 InformIng It that the claimant was currently under her care and was unable to return to work. An applIcatIOn for dIsabIlIty benefits was submItted by the claimant on November 24 1997 In It he stated that stress and a mood dIsorder had necessItated a change to 8 hour mIdmght ShIftS He further stated that the employer had harassed, IntImIdated and humIlIated hIm constantly SInce May of 1994 whIch resulted In depressIOn, mood dIsorder and post-traumatIc stress dIsorder The PhysIcIan's statement completed by Dr WaInwnght and dated December 9 1997 stated that the claimant's symptoms began In August of 1997 and that her dIagnosIs was depressIOn and anXI ety She noted that the claimant had no physIcal lImItatIOns on hIS actIvItIes but that hIS health would suffer If he were to return to work. She noted under prognosIs that It was unlIkely he would ever be able to return to hIS regular Job and that he would be unable to work at any occupatIOn for three months It was her OpInIOn that the claimant was not a sUItable candIdate for rehabIlItatIOn but that he could probably return to part-tIme work In another field At about the same tIme the claimant was referred by Dr Sharma to Dr SwamInath, a forensIc psychIatnst at the St. Thomas PsychIatnc HospItal The referral letter stated as follows Thank you very much for agreeIng to see Mr D.D In consultatIOn. I ImtIally assessed hIm on August 29/97 and two weeks earlIer he had been seen by Dr Paul Max. A copy of my consultatIOn note IS enclosed for you InfOrmatIOn. Dr Max also thought that he suffered from maJor depressIOn. He IS currently beIng treated wIth sertralIne 150 mgs a day MaJor depressIOn does not seem to be a problem as present but he does contInue to struggle wIth certaIn Issues pertaInIng to hIS workplace He IS currently on a short term dIsabIlIty whIch IS about to run out sometIme In January 1998 He IS hopIng to return to work at the ElgIn Middlesex DetentIOn Centre but he does not know when. He states that he has many "unresolved demons" before he can resume work. Last week was partIcularly stressful for hIm - he was told by the polIce that he wIll not be gIven the permIt to transfer hIS weapons from the polIce statIOn to hIS hIm because of concerns regardIng hIS and others' safety He wIll be gOIng to court In thIS regard shortly Because of several legal Issues Involved, I would apprecIate It If you could see hIm In regular follow-up as well In January of 1998 the Insurer sent letters to Dr Max, Dr Sharma and Dr SwamInath askIng for the psychIatnc hIStOry of present and past Illnesses, mental status eXamInatIOn findIngs, precIpItatIng and perpetuatIng factors, DSM IV dIagnosIs, IncludIng the GAP score, nature, frequency and seventy of current symptoms, psychIatnc management plan, antIcIpated CLAIM # 97511 Improvement and role of motIvatIOn. As well they were asked to complete a Mental Residual Functional Capacity Assessment. The purpose of the assessment IS set out as follows, ThIS sectIOn IS for recordIng summary conclusIOns denved from the obJectIve medIcal eVIdence that eXIsts on eXamInatIOn and lor contaIned In the patIent's medIcal records Each mental actIvIty IS to be evaluated wIthIn the context of the IndIVIdual's capacIty to sustaIn that actIvIty over a normal workday or work week on an ongOIng basIs DetaIled explanatIOn of the degree of lImItatIOn for each category (A through D) as well as any other assessment InfOrmatIOn you deem appropnate, IS to be recorded after each category If ratIng category 5 IS checked for any of the folloWIng Items, you MUST specIfy In SectIOn II the eVIdence that IS needed to make the assessment. The assessment IS based on a ratIng scale from 1 to 5 1 beIng Not Significantly Limited, 2 beIng Moderately Limited, 3 beIng Markedly Limited, 4 beIng No Evidence of Limitation in this Category and 5 beIng Not Ratable on Available Evidence The first group of questIOns deals wIth Understanding and Memory and asks about the abIlIty to remember locatIOns and work-lIke procedures, the abIlIty to understand and remember very short and sImple InstructIOns and the abIlIty to understand and remember detaIled InstructIOns The second group deals wIth Sustained Concentration and Persistence and asks about the abIlIty to carry out very short and sImple InstructIOns, the abIlIty to carry out detaIled InstructIOns, the abIlIty to maIntaIn attentIOn and concentratIOn for extended penods, the abIlIty to perform actIvItIes WIthIn a schedule, maIntaIn regular attendance and be punctual wIthIn customary tolerances The thIrd group IS entItled Social Interaction and asks about the abIlIty to Interact appropnately wIth the general publIc, the abIlIty to accept InstructIOns and respond appropnately to feedback from supervIsors, the abIlIty to get along wIth co-workers or peers wIthout dIstractIng them or exhIbItIng behavIOural extremes, the abIlIty to maIntaIn socIally appropnate behavIOur and adhere to basIc standards of neatness and cleanlIness The fourth and final group deals wIth Adaptation and asks about the abIlIty to respond appropnately to changes In the work settIng, the abIlIty to be aware of normal hazards and take appropnate precautIOns, the abIlIty to travel In unfamIlIar places or use publIc transportatIOn and the abIlIty to set realIstIc goals or make plans Independently of others At the same tIme the claimant was asked to complete an InformatIOn questIOnnaire concernIng hIS dally actIvItIes He noted that he was havIng trouble sleepIng and that, despIte medIcatIOn, he was awake from 2 30 to 4 30 each mght. As a result of hIS medIcal condItIOn he seemed to need more sleep and had naps dunng the day of as much as two hours As well, he was bInge eatIng and Inappropnately snackIng and suffered from low self-Image He dId help hIS spouse wIth CLAIM # 97511 housework and cookIng meals but was often dIstracted. He dId the food shoppIng but needed a lIst because of hIS poor concentratIOn and memory His socIal contacts had been affected by hIS condItIOn. He rarely VIsIted fnends and when he dId It was for short penods He dId not ImtIate conversatIOn and could not dISCUSS hIS sItuatIOn at work wIthout emotIOnal upheaval His spouse momtored conversatIOn to aVOId unpleasant tOpICS and keep hIm focused. He expenenced a loss of self-worth and hopelessness and felt that there was no end to ordeal Dr Sharma responded to the Insurer's January letter In part, as follows At the tIme of ImtIal assessment In my office the patIent mentIOned he was feelIng depressed In response to he (SIC) stress he expenenced at work. He descnbed beIng In a state of sIege at work over the pervIOus four years Just pnor to the tIme he went off work In 1997 a co worker had reportedly threatened to kIll hIm Mr D.D was not hopeful of beIng able to resolve the dIfficultIes that he was havIng at work. He reported vanous symptoms of depressIOn such as vanable appetIte, sleep Impairment, poor concentratIOn, lack of energy and loss of Interest. He demed any past hIStOry of psychIatnc problems He dId see a psychIatnst In 1994 for a couple of seSSIOns 2 At the tIme of ImtIal assessment he dId not appear sad or anxIOUS but he reported feelIng low He demed any thoughts of self harm but expressed strong feelIngs of hopelessness He also admItted to havIng homIcIdal thoughts but added that he could not pIcture hImself kIllIng anyone 3 As stated above he was expenencIng a great deal of stress at work. He also felt harassed by hIS co workers and dId not feel supported by hIS supenors These factors undoubtedly played a role In precIpItatIng an epIsode of maJor depressIOn. The fact that he has not been able to put a closure on thIS matter has perpetuated hIS symptoms of depressIOn. 4 AXIS I - maJor depreSSIOn-SIngle epIsode AXIS II deferred AXIS III none AXIS IV occupatIOn problems AXIS V 60 5 He IS currently takIng tnmIpramIne 150 mgs a day 6 He dId expenence some Improvement In hIS sleep pattern folloWIng ImtIatIOn of tnmIpramIne however he has contInued to report vanous symptoms of depressIOn. 7 DependIng on hIS level of tolerabIlIty the tnmIpramIne dose wIll be Increased further To help hIm deal wIth certaIn legal aspects of hIS dIfficultIes he has been referred to Dr SwamInath who specIalIzes In forensIc psychIatry In fact, he has already seen Dr SwamInath on a couple of occaSIOns CLAIM # 97511 8 It IS dIfficult to speculate as to how long he wIll remaIn functIOnally Impaired 9 Mr D.D contInues to VIew hIS work envIronment as qUIte hostIle Moreover he remaInS symptomatIc He IS motIvated to return to work provIded there IS a further resolutIOn of depressIve symptoms Dr SwamInath responded to the Insurer's January letter on March 9 1998 He first descnbed the sItuatIOn that gave nse to the claimant's present problems as ongInatIng In 1994 when he was accused of and later exonerated from allegatIOns of sexual assault. He was off work for four months whIle the matter was beIng InvestIgated and, on hIS reInstatement, began expenenCIng harassment. The letter went on, In part, as follows The ongoIng tensIOns between hIm and the management at the DetentIOn Centre have resulted In hIm filIng at least four gnevances and he IS stIll WaitIng for a Heanng (SIC) by the Gnevance Settlement Board. Also an Issue of a great source of concern to hIm IS an allegatIOn was made by a co-worker that he had made threats to kIll hIm wIth a gun. I belIeve as a result of thIS complaInt, the polIce were Involved and the firearms whIch were In hIS possessIOn were seIzed. As IndIcated earlIer In the report, thIS matter IS outstandIng before the court and I understand he wIll be appeanng later In March at the London Court House to answer thIS charge Mr D.D IS currently of the OpInIOn that a return to work at the DetentIOn Centre would be a return to a pOIsoned work envIronment. He belIeves that thIS wIll have a negatIve Impact on hIS emotIOns and wIll only exacerbate the emotIOnal health whIch he IS Just In the process of recuperatIng. SInce August of 1997 he has been under the care of Dr Sharma and undergoIng treatment for depressIOn. I last saw Mr D.D In my office on February 28 1998 He was pleasant and co-operatIve throughout the IntervIew However he said that hIS mood contInues to fluctuate, but he has been COpIng wIth It. His sleep IS Interrupted and he has notIced an Increase In hIS weIght, almost thIrty pounds as a result of overeatIng. He feels that the workplace Issues and also the Issues before the court have contInued to cause hIm stress and he feels that under the present cIrcumstances, he IS not able to return to work. Mr D.D In my OpInIOn, would contInue to reqUIre ongOIng psychIatnc supervIsIOn and momtonng of hIS antI-depressant medIcatIOns and responses to It. I have dIscussed the case wIth Dr Sharma and Dr Sharma would be qUIte wIllIng to penodIcally see hIm to reVIew hIS response to treatment. I wIll contInue to remaIn Involved as long as the legal Issues are unresolved and outstandIng. Dr Sharma supplIed the Insurer wIth another letter In March of 1998 whIch stated I am wntIng to you In response to your letter dated February 26/98 In regards to Mr D.D Please find below answers to the questIOns you raised In your letter CLAIM # 97511 1 DMS dIagnosIs AXIS I MaJor depressIOn=SIngle epIsode AXIS II Deferred AXIS III none AXIS IV occupatIOn problems AXIS V 60 2 Mr D.D reports a hIStOry suggestIve of maJor depressIOn and he has expenenced symptoms of vanable appetIte, sleep Impairment, poor concentratIOn, lack of energy loss of Interest and sad mood. These symptoms are severe enough to Interfere wIth hIS level of functIOmng and he has not been able to return to hIS prevIOus place of employment. 3 He IS currently takIng tnmIpramIne 150 mgs a day He was last assessed In my office on February 11/98 He also sees Dr SwamInath, a forensIc psychIatnst In London. In terms to respond to treatment there has been some Improvement In hIS condItIOn but he remaInS far from beIng asym ptomatI c 4 Please find enclosed copIes of reports on file 5 He IS not beIng seen on a regular basIs by myself however I understand that he has been seeIng Dr SwamInath on a fairly regular basIs Dr SwamInath was the only physIcIan who completed the Mental ResIdual FunctIOnal CapacIty Assessment as requested by ManulIfe Under the categones of Understanding and Memory he noted that the claimant exhIbIted no eVIdence of lImItatIOn. Under the headIng of Sustained Concentration and Persistence he noted no eVIdence of lImItatIOn In the first five subsectIOns He noted that the last three subsectIOns could not be rated on the avaIlable eVIdence Dr SwamInath commented that the claimant felt the workplace was too stressful to consIder returnIng to work. In the final category of Social Interaction he found no lImItatIOns In hIS abIlIty to Interact appropnately wIth the general publIc but InSUfficIent eVIdence to rate the other sectIOns Dr SwamInath could not respond to the questIOns asked under the final category of Adaptation. Based on that InformatIOn the Insurer advIsed the claimant that hIS applIcatIOn for benefits had been demed because there was InSUfficIent eVIdence to substantIate a claim of total contInUOUS dIsabIlIty They stated, In a letter dated Apnl 23 1998 as follows ManulIfe's PsychIatnc MedIcal Consultant has revIewed the aforementIOned reports and notes that there IS a lack of an obJectIve assessment of your level of dIsabIlIty Doctor SwamInath and Dr Sharma both state that you see yourself as dIsabled and unable to CLAIM # 97511 cope wIth your work and legal Issues There are however no clear obJectIve psychIatnc findIngs noted by eIther of these physIcIans The InformatIOn on file IS IndIcatIve of a conflIct In the workplace whIch IS caUSIng you to aVOId a return to work rather than a totally dIsablIng psychIatnc dIsorder In June Dr Sharma wrote to the Deputy Supenntendent of the DetentIOn Centre the folloWIng letter I am wntIng to you In response to your letter dated May 13 1998 to Mr D.D Mr D.D remaInS hIghly anxIOUS about returmng to work at the ElgIn Middlesex CorrectIOns Centre as a correctIOnal officer I agree such a move would he hIghly detnmental to hIS well beIng. He should be allowed to remaIn an employee of the mImstry of the SOlICItor General but he should not have any contact wIth the Inmates Another optIOn would be to help hIm find alternate work wIth another mImstry The claimant appealed that demal of benefits and that appeal was referred to the JOInt Insurance Benefits RevIew CommIttee WhIle the appeal was beIng consIdered Dr Sharma wrote one last letter In July to Dr WaInwnght In whIch he stated Mr D.D was seen today He reported that there has been an Improvement In hIS condItIOn SInce the last tIme he was here He stated that he feels more comfortable wIth how he IS InteractIng WIth others He remaInS uncertaIn about hIS future He IS hopIng that he wIll find out about the status of hIS employment sometIme next month. SInce Apnl he has been takIng surmontIl 50 to 100 mgs at mght. He IS USIng thIS medIcatIOn pnmanly for sedatIOn. He was In good spmts He has lost some weIght over the past few months It does not appear that I need to see hIm on a regular basIs however I wIll be happy to reassess hIm If need be In September the Insurer advIsed the claimant that hIS appeal had been demed on the basIs of InSUfficIent medIcal InformatIOn to substantIate hIS claim of total dIsabIlIty It noted that the first letter from Dr Sharma descnbed workplace Issues as the reason for hIS absences from work. Although he met the cntena for a maJor depressIve epIsode, he was not sad or anxIOUS The September report dId not provIde any medIcal InfOrmatIOn as to why he was unable to return to work. The December report stated that hIS depreSSIOn was not a problem but that he was strugglIng wIth workplace Issues The Apnl letter from Dr Sharma noted workplace problems but descnbed only subJectIve symptoms As well, a GAP score of60 was IS IndIcatIve of mIld to moderate symptoms but not a totally dIsablIng psychIatnc dIsorder The June letter from Dr CLAIM # 97511 Sharma stated that he was hIghly anxIOUS about returnIng to work but dId not provIde any medIcal InformatIOn for the findIng. The folloWIng month the claimant's appeal was removed from the JIBRC table and forwarded to the Claims ReVIew SubcommIttee for reconsIderatIOn. SUBMISSIONS OF THE PARTIES Ms Gordon, for the Umon, took the posItIOn that the fact that the claimant's condItIOn ongInated In the workplace does not undermIne the valIdIty of hIS claim for benefits He IS a correctIOnal officer and as such he must be In top form at all tImes He must be able to deal wIth stress from the Inmates as well as from hIS co-workers The abIlIty to do so IS crucIal and the medIcal OpInIOnS of Dr Sharma and Dr WaInwnght show that he was unable to do so at the tIme Dr Max and Dr SwamInath concurred wIth theIr conclusIOns The medIcal eVIdence IS consIstent WIth a findIng of total dIsabIlIty The claimant was under a doctor's care throughout the entIre penod, he followed the doctors' treatment plans and, In tIme, Improved enough to return to work. There IS sufficIent medIcal eVIdence, subJectIve and obJectIve, to support the claimant's appeal Ms Campagnone, for the Employer remInded the Board that there were no physIcal lImItatIOns on the claimant's abIlIty to perform hIS Job as a CorrectIOnal Officer His only complaInts were of subJectIve feelIngs of hopelessness and compulsIve eatIng. His dIagnosIs was a sIngle epIsode of depressIOn and the seventy of that epIsode IS IndIcated In the GAP score of 60 It was submItted that the Mental ResIdual FunctIOnal CapacIty Assessment dIrectly addresses the Issue of the claimant's abIlIty to perform the dutIes of hIS posItIOn. Dr SwamInath found no lImItatIOns on the claimant's abIlIty to understand and remember InstructIOns, to maIntaIn attentIOn and concentratIOn for extended penods, sustaIn an ordInary routIne and to Interact appropnately wIth others There IS no suggestIOn that the claimant could not return to hIS dutIes as a correctIOnal officer The Employer agreed that the ongIn of the claimant's condItIOn IS Irrelevant. The Insurance company dId not deny hIm benefits for that reason. The demal was based on the lack of sufficIent eVIdence of hIS InabIlIty to perform the dutIes of hIS posItIOn. The Employer also submItted that the claimant's general practItIOner's OpInIOn should gIve way to the OpInIOnS of the specIalIsts who saw and treated hIm They are more famIlIar wIth the CLAIM # 97511 dIagnosIs and symptomatology of psychIatnc dIsorders and are In the best posItIOn to provIde medIcal eVIdence of hIS condItIOn. In thIS case they dId not say that the claimant could not return to work. There IS no clear and conVInCIng eVIdence that the claimant was unable to return to hIS posItIOn and the appeal should be dIsmIssed. In reply the Umon submItted that the decIsIOn to prefer the OpInIOn of one physIcIan over another must be determIned by evaluatIng and aSseSSIng the vanous medIcal reports agaInst the famIlIanty and exposure of the physIcIan to the patIent and the completeness of the reports It must be done on a case by case basIs As well, It was stated that the Employer relIes too heavIly on the mental resIdual functIOnal assessment form Dr Sharma chose to wnte a narratIve report whIle Dr SwamInath chose to complete the form No Inferences can or should be drawn as to why they dId so Dr Sharma IS very clear about the claimant's symptoms, dIagnosIs and treatment. Dr SwamInath does not dIsagree wIth her conclusIOns On the basIs of those conclusIOns the appeal should be allowed. REASONS FOR DECISION Under the collectIve agreement between the partIes, Long Term Income ProtectIOn (LTIP) benefits commence after a qualIficatIOn penod of 6 months from the date an employee becomes totally dIsabled. Total dIsabIlIty IS defined as 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 (24) months of the benefits 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" That IS the test an employee must meet In order to succeed In a claim for L TIP benefits In the Instant case, the first psychIatnc report by Dr Max In August of 1997 found the claimant to be suffenng from a maJor bout of depressIOn vergIng on pSYChOtIC dIstortIOn. Dr Max shared the concerns of the refernng physIcIan, Dr WaInwnght, about the claimant's homIcIdal feelIngs towards the workplace Not surpnsIngly he concluded that the claimant ought to aVOId returnIng to work untIl hIS depressIOn had been treated aggressIvely wIth counsellIng and antIdepressants Another psychIatnc report two weeks later by Dr Sharma descnbed hIS symptoms of vanable appetIte, sleep Impairment, poor concentratIOn, lack of energy loss of sense of humour sexual dIsfunctIOn and a general feelIng of hopelessness Those symptoms, accordIng to Dr Sharma, CLAIM # 97511 meet the cntena for maJor depressIOn- sIngle epIsode He quened whether the depressIOn contnbuted to the stress at work. It was hIS VIew at the tIme that the claimant was unable to return to work. His general practItIOner In completIng the AttendIng PhysIcIan's statement In December dIagnosed hIm as suffenng from depressIOn and anxIety and suggested, under prognosIs, that he would never be able to return to hIS regular Job and would be unable to perform any occupatIOn for one to three months A letter from Dr Sharma at about the same tIme IS confusIng. He states that the claimant IS suffenng from a maJor depressIOn whIch dId not seem to be a problem at the tIme Nevertheless, he was refused a permIt to transfer hIS weapons to hIS home from the polIce statIOn because of concerns about hIS safety and the safety of others He dId not say In hIS letter whether he shared those concerns However the next report from Dr Sharma In February of 1998 repeats hIS symptoms of depressIOn and makes reference agaIn to hIS homIcIdal thoughts wIth the acknowledgement that the claimant "could not pIcture hImself kIllIng anyone" He then sets out hIS conclusIOns about the claimant's MultIaxIal Assessment, whIch, as the name ImplIes, Involves an assessment of a patIent on the folloWIng five axes AXIS I ClImcal DIsorders - Other condItIOns that may be a focus of clImcal attentIOn. AXIS II PersonalIty DIsorders - Mental RetardatIOn. AXIS III General MedIcal CondItIOns AXIS IV PsychosocIal and EnvIronmental Problems AXIS V Global Assessment of FunctIOmng The multIaxIal system provIdes a convement format for orgamZIng and commumcatIng clImcal InformatIon, for captunng the complexIty of clImcal sItuatIOns and for descnbIng the heterogeneIty of IndIVIduals presentIng wIth the same dIagnosIs The first AXIS deals wIth clImcal dIsorders such as delInum, dementIa, substance related dIsorders, schIzophrema and other pSYChOtIC dIsorders, anxIety somatoform, factItIOus, dIssocIatIve, sexual, gender eatIng, sleepIng, adJustment dIsorders and other condItIOns that mIght be the focus of clImcal attentIOn. In thIS case the claimant was found to have a maJor depressIOn- sIngle epIsode The second AXIS deals wIth personalIty dIsorders and mental retardatIOn and Includes paranOId, SChIZOId, antIsocIal schIzotypal, borderlIne personalIty hIstnomc narCIsstIC aVOIdant, dependent and obsessIve-compulsIve dIsorders In the case of the claimant, Dr Sharma deferred. The thIrd AXIS refers to general medIcal condItIOns relevant to the understandIng or management of the patIent's mental dIsorder whIch dId not eXIst In thIS case AXIS IV IS for reportIng psychosocIal and envIronmental problems that mIght effect the dIagnosIs, treatment and prognosIs of mental CLAIM # 97511 dIsorders descnbed In AXIS I and II. These would Include problems wIth pnmary support groups, problems related to the socIal envIronment, educatIOnal problems, occupatIOnal problems, hOUSIng problems, economIC problems, problem wIth access to health care servIces, problems related to the legal system or cnme and other psychosocIal and envIronmental problems Dr Sharma noted that the claimant had occupatIOnal problems Finally AXIS V IS for reportIng the clImcIan's Judgement of the IndIVIdual's overall level of functIOmng. That IS done by USIng the Global Assessment of functIOmng Scale, whIch rates psychologIcal, socIal and occupatIOnal functIOmng. It IS generally used to rate current functIOmng. The scale ranges from a low of one to one hundred. A patIent who scored from one to thIrty on the scale would be senously Impaired and unable to functIOn In almost all areas The most common scores fall between 30- 70 USIng the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, the meamng of the vanous levels IS a follows 31-40 Some impairment in reality testing or communication (e g. speech IS at tImes IllogIcal, obscure, or Irrelevant) OR major impairment in several areas, such as work or school, family relations, judgement, thinking or mood (e g. depressed man aVOIds fnends, neglects famIly and IS unable to work; chIld frequently beats up younger chIldren, IS defiant at home, and IS faIlIng at school) 41-50 Serious symptoms (e g. sUIcIdal IdeatIOn, severe obsessIOnal ntuals, frequent shoplIftIng) OR any serious impairment in social, occupational or school functioning (e g. no fnends, unable to keep a J ob) 51-60 Moderate symptoms (e g. flat affect and cIrcumstantIal speech, occasIOnal pamc attacks) OR moderate difficulty in social, occupational or school functioning (e g. few fnends, conflIcts WIth peers or co-workers) 61-70 Some mild symptoms (e g. depressed mood and mIld Insomma) OR some difficulty in social, occupational or school functioning (e g. occasIOnal truancy or theft wIthIn the household) but generally functioning pretty well, has some meaningful interpersonal relationships. Dr Sharma rated the claimant at 60 In companng that score wIth the reports provIded by Dr Sharma, It IS clear that the claimant's symptoms fit wIthIn the range of 51-60 more than any other level, whIch would suggest he was able to functIOn to some degree wIthout dIfficulty The ImtIaI referral to Dr Max suggested that Dr WaInwnght was concerned about the claimant's homIcIdal feelIngs and talk of retalIatIOn and Dr Max hImself comments on the claimant's depressIOn "vergIng on pSYChOtIC dIstortIOn" That would explaIn her OpInIOn that the claimant could not ever go back to hIS Job as a correctIOnal officer However neIther Dr Sharma nor Dr SwamInath appear to consIder these senous grounds for concern. Although they both make note CLAIM # 97511 of hIS dIfficulty retnevIng hIS guns from the polIce because to concerns about safety neIther state that the concerns are valId and I can only assume they came to that conclusIOn based on theIr expenence and traInIng. I am left wIth Dr Sharma's OpInIOn that he IS functIOnally dIsabled contrasted wIth hIS GAF score of 60 and hIS comments that "maJor depressIOn does not seem to be a problem as present" "dId not appear sa or anxIOUS but he dId report feelIng low" and, In March, "some Improvement In hIS condItIOn" Dr SwamInath noted that the claimant had been COpIng wIth hIS fluctuatIng mood but felt he was unable to return to work. Dr SwamInath does not say whether he agrees wIth the claimant and never states In any of hIS reports that he agrees or dIsagrees wIth Dr Sharma's VIews Even the Mental ResIdual FunctIOnal CapacIty Assessment does not support Mr D.D' claim for benefits r SwamInath dId not feel the claimant had any lImItatIOns In regards to functIOmng at the workplace In most areas or that he dId not have sufficIent InformatIOn to rate the claimant In several areas, whIch IndIcates no ObVIOUS or apparent dIfficultIes In my OpInIOn, the reports of the vanous physIcIans do not support a claim of total dIsabIlIty as defined In the polIcy The claimant was suffenng from a maJ or depressIOn but by all accounts except hIS own he was not unable to return to work for medIcal of psychIatnc reasons WhIle the conflIct at the workplace mIght have precIpItated or perpetuated hIS depreSSIOn, It IS clear that the symptoms of depressIOn Itself were not severe enough to fit the defimtIOn of total dIsabIlIty The appeal IS therefore demed. Dated thIS 15th day of December 2000 Loretta Mikus, Vice-Chair CLAIM # 97511