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HomeMy WebLinkAbout2001-17270 Benefits Claimant 01-08-31 Decision 1 IN THE MATTER OF AN APPEAL BEFORE THE SUBCPMMITTEE OF THE JOINT INSURANCE BENEFITS REVIEW COMMITTEE REGARDING CLAIM # 17270 CHAIR LORETTA MIKUS APPEARING FOR THE UNION MARK BARCLAY APPEARING FOR THE EMPLOYER HIROKO SAW AI CLAIM # 17270 2 Included In the most recent collectIve agreement between the partIes are the folloWIng provIsIOns Article 22 - Grievance Procedure Article 22.9 - Insured Benefits Grievance 22 9 1 An allegatIOn that the Employer has not provIded an Insured benefit that has been contracted for In thIS Agreement shall be pursued as a 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 sub] ect 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 CLAIM # 17270 3 4 Duties of the Committee 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 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 CLAIM # 17270 4 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 ~ MembershIp on the subcommIttee shall be for one (1) year penod, and IS renewable at the dIscretIOn of the nomInatIng party or partIes In the case of the renewal of the term of the Independent thIrd party (d) DeCISIOns of the subcommIttee are final and bIndIng. (e) The fees and expenses of the medIcal consultants referred to In clause (b) and the Independent thIrd party referred to In clause (a) shall be dIvIded equally between the Employer and the Umon. Article 42 - Long Term Income Protection Total dIsabIlIty means the contInUOUS InabIlIty as the result of Illness, mental dIsorder or Injury of the Insured employee to perform the essentIal dutIes of hIS or her normal occupatIOn dunng the qualIficatIOn penod, and dunng the first twenty-four months of the benefit penod' and thereafter dunng the balance of the benefit penod, the InabIlIty of the employee to perform the essentIal dutIes of any gaInful occupatIOn for whIch he or she IS reasonably fitted by educatIOn, traInIng or expenence Subsequent to the sIgmng of thIS collectIve agreement the partIes negotIated and sIgned terms of reference regardIng the establIshment of a subcommIttee to deal wIth dIsputes between the partIes regardIng Long Term Income ProtectIOn (hereInafter referred to as "L TIP") That memorandum stated JIBRIC CLAIMS REVIEW SUBCOMMITTEE TERMS OF REFERENCE AUTHORITY The JIBRC subcommIttee IS establIshed under ArtIcle 22 9 2 and AppendIx 4 of the CLAIM # 17270 5 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 IfnotIce 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 CLAIM # 17270 6 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 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 CLAIM # 17270 7 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 Ifnecessary 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 229.2 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 forst day ofheanng 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 CLAIM # 17270 8 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, Mr R. D was born In 1950 and SInce 1974 has been employed by the Mimstry of Health at the WhItby PsychIatnc Centre as a Group Leader Cleaner His last day of work was June 13 1988 and he was In receIpt of Worker's CompensatIOn benefits from June 14 1988 untIl December 2, 1991 He was subsequently awarded a permanent Impairment award of 15%, effectIve June 14 1988 He also receIved long-term dIsabIlIty benefits from July 22, 1989 to March 31 1997 His claim for benefits under the "any occupatIOn" defimtIOn of the polIcy began on December 14 1990 He was awarded L TIP benefits under that defimtIOn from that date untIl Apnll 1997 ThIS appeal IS for contInuIng benefits after that date The hIStOry of hIS complaInt IS best explaIned In a letter dated February 21 1990 from Dr JamIeson at the Oshawa ClImc In whIch he stated ThIS man S current problems started June 13 1988 when he tWIsted hIS nght ankle at work. ThIS was treated b, ImmobIhzatIOn for three weeks m a below-knee walkmg cast. The cast had been removed and he subsequent!, fell whIle gomg down a flIght of stairs ThIS was apparent!, due to hIS ankle gIvmg out. He sustamed a tWIstmg mjun to hIS back and then had ongomg back complamts whIch prevented hIm from returnmg to hIS regular job Assessment showed a mechanIcal low back stram pIcture WIth no eVIdence of nerve root entrapment. His pam was ven mechanIcal m nature aggravated b, actIvIn and reheved b, recumbent rest. X -rays showed a deep seated lumbosacral JunctIOn WIth mcomplete bndgmg of the lower lumbar vertebrae to the sacrum The entIre pIcture was conSIstent wIth a mechanIcal low back stram. He had been placed on a phvsIOtherap, prograIU at the Oshawa General HospItal, but thIS dId not reheve hIS symptoms He deCIded to tn a chIropractor back support and treatment wIth a TNS Umt was also prescribed. He was revIewed on December 15 1988 at that pomt, he had had several chIropractIc treatments wIth no benefit. A bone scan was ordered and done on Januan 2, 1989 and thIS appeared normal TNS Umt treatments wee (SIC) meffectIve and m VIew of hIS lack of response to all the usual modahtIes CLAIM # 17270 9 of treatment for thIS dIsorder It was recommended that he be admItted to the W orkmans CompensatIOn Board HospItal for a more m-depth assessment of actIvIt, tolerance level and also further phvsIOtherap, treatment. He was admItted to the DownsvIew FacIht, on November 6 1989 and dIscharged November 21 1989 The ImpreSSIOn gamed at the tIme of admIsSIOn to the DownsvIew FacIht, was that he had a low back stram. He was able to work at a hght level and was dIscharged fit to return to full employment. A further note was made that from the psychological pomt of VIew the treatmg phYSICIanS and therapIsts felt that there was some magmficatIOn of hIS symptoms The patIent was subsequent!, reassessed m office consultatIOn Januan 16 1990 He mdIcated that he was contmumg to expenence ongomg low back pam, whIch was not resolvmg He described mechanIcal ImtabIht, symptoms m hIS low back. ThIS man represents a rather dIfficult management problem m that he IS dIagnosed as have a mIld to moderate back stram, but subjectIve symptoms of pam and restnctIOn of movement have prevented hIm from to work (SIC) and he IS not respondmg to an, of the usual modahtIes of treatment. It appears that he probabh has a low pam threshold and there ma, be some psychological magmficatIOn of symptoms Certamh no major mterventIOn IS bemg conSIdered at the present tIme l.e surgen There does not appear to be much pomt m contmumg the prevIOush tned conservatIve measures ThIS man s prognOSIS IS certamh guarded, m that he can t or won t go back to work WIth hIS current symptoms and vet no treatment camed out so far has seemed to make an, Improvement m the subjectIve symptoms of low back pam. He was subsequently seen In May of 1990 by Dr Mason from the Oshawa ClImc who opIned that hIS dIscomfort mIght be due to secondary fibrocytIs and prescnbed medIcatIOn and exerCIse He also expressed a desIre to reVIew the claimant In SIX to eIght weeks tIme to evaluate any Improvement. The claimant, whIle In receIpt of Worker's CompensatIOn Benefits, had also applIed for long term dIsabIlIty benefits under the Insurance polIcy wIth ConfederatIOn LIfe In late June of 1990 he was adVIsed that hIS claim had been approved on the basIs of total dIsabIlIty from hIS own occupatIOn effectIve July 22, 1989 He was also adVIsed at the tIme that hIS elIgibIlIty to receIve contInued benefits after December 13 1990 would depend on a findIng of total dIsabIlIty from performIng "any and every duty of any occupatIOn for whIch he was reasonably fitted by traInIng, educatIOn or expenence" An AttendIng PhysIcIan's Statement of ContInuIng DIsabIlIty was completed by hIS famIly doctor CLAIM # 17270 10 Dr GIroux, on November 16 1990 The pnmary dIagnosIs was chromc post-facet paIn syndrome whIch had not Improved. Dr GIroux consIdered hIm to be totally dIsabled from hIS own and any occupatIOn. At Dr GIroux'S request the claimant was seen agaIn by Dr Mason and In hIS report dated December 12 1990 found that the claimant seemed to be the same wIth respect to hIS chromc neck and back straInS His recommendatIOn was that the claimant reconsIder a repeat tnal of postenor facet JOInt InJectIOns, as well as antI-depressants and antI-Inflammatory therapy He concluded wIth the comment that he had no further physIcal treatments to offer at the tIme In February of 1991 the Insurer wrote to Dr Mason askIng for more InformatIOn to substantIate the claimant's total dIsabIlIty from any occupatIOn. A March 25 1991 report from Dr Mason stated that as of hIS last assessment In December of 1990 It was hIS OpInIOn that the claimant was not permanently totally dIsabled from performIng the dutIes of any occupatIOn, even wIth the claimant's consIderable and sIgmficant dIsabIlIty It was Dr Mason's VIew that he could be Involved In a vocatIOnal rehabIlItatIOn program of very lIght physIcal actIvIty or sedentary work, begInmng on a part-tIme basIs and eventually progreSSIng to a level of competItIve employment. It was hIS VIew that the claimant would eventually be able to work almost full tIme hours as long as the occupatIOn was not physIcally demandIng. It was hIS OpInIOn that the claimant should not be returned to any occupatIOn that Involved maIntenance of a sustaIned posture such as prolonged SIttIng or standIng, and would be best sUIted to aJob In whIch he could change hIS posItIOn frequently He concluded wIth the caveat that, although the claimant was not totally permanently dIsabled, returmng hIm to work would be "a vocatIOnal rehabIlItatIOn challenge" It was also hIS VIew that success would depend on the claimant's pre-InJury level of educatIOn and traInIng about whIch he had not made any Inqumes There IS no eVIdence In the file that any rehabIlItatIOn efforts were undertaken. The next note In the file IS dated Apnl 22, 1991 from the claims adJudIcator at the Worker's CompensatIOn Board and was In response to a request for total temporary benefits from the claimant. The letter advIsed hIm that a reVIew of hIS file had IndIcated hIS claim would be assessed for a permanent dIsabIlIty award CLAIM # 17270 11 under the Chromc PaIn DIsablement GUIdelInes The letter set out the defimtIOn of chromc paIn and chromc paIn dIsorder as follows Chromc paIn IS paIn whose charactenstIcs are compatIble wIth a compensIble InJury except that It persIsts for SIX or more months beyond the usual healIng tIme for the InJury Chromc paIn dIsorder IS term used to descnbe the posItIOn of a person whose chromc paIn has resulted In marked lIfe dIsruptIOn. ThIS polIcy IS meant to effectIvely provIde compensatIOn to workers expenenCIng paIn as a result of undetected orgamc or psychIatnc symptomatology for what otherwIse IS mamfested as a genuIne expenence of real persIstent paIn for the worker The letter also explaIned that, In order for a worker to qualIfy for compensatIOn under the chromc paIn dIsorder polIcy the Board must be satIsfied that the folloWIng condItIOns eXIsted. eVIdence of an InJury chromc paIn caused by the InJury paIn persIstIng SIX or more months beyond the expected healIng tIme, paIn consIstent WIth orgamc findIngs and paIn that ImpairS the learnIng capacIty of the worker The ClIent ServIces DIVIsIOn had revIewed the claimant's file and was of the VIew that hIS claim should be assessed under these new gUIdelInes A fifty percent benefit was Issued from December 4 1989 and contInuIng untIl a reassessment. As a result of thIS award hIS group polIcy benefits were adJusted accordIngly Those Worker's CompensatIOn benefits contInued untIl January of 1992, at whIch tIme he was awarded a fifteen- percent penSIOn datIng back to June of 1988 A May 1992 Statement of ContInuIng DIsabIlIty completed by Dr GIroux noted that the claimant had severe Intractable fibrocytIs wIth a secondary dIagnosIs of depressIOn. He noted that the patIent was ambulatory but that the paIn was progressIve and that he was totally dIsabled from hIS own occupatIOn or any occupatIOn for an Indefimte penod of tIme Under remarks he said "I cannot treat thIS man (nothIng helps) I belIeve he has fibrocytIs that wIll not let go ThIS man IS unemployable" In September of 1993 Dr Mason was requested by the Insurer to perform a consultatIve medIcal reassessment of the claimant to assess hIS elIgIbIlIty for benefits In that letter It was explaIned to CLAIM # 17270 12 Dr Mason that elIgIbIlIty for benefits was based on a defimtIOn of dIsabIlIty whIch reqUIred "the eXIstence of physIcal/emotIOnal lImItatIOns of such degree as to prevent performance of the substantIal dutIes of hIS Job and, In addItIOn, sufficIent lImItatIOns to prevent hIm from engagIng In any occupatIOn for whIch he may be reasonably sUIted based on past educatIOn, traInIng, and expenence" It specIfically asked a senes of questIOns of Dr Mason concermng the claimant's condItIOn. In hIS report dated October 7 1993 he noted that he had not seen hIm SInce December 12, 1990 He also noted that at the present tIme he stIll had dIscomfort In the neck and the entIre back, IncludIng radIatIng paIn that was felt around the sIdes of the chest. His summary stated that the claimant was a forty-three year old man wIth chromc dIffuse musculo-skeletal dIscomfort. The only area of sIgmficant findIng was In the lumbosacral spIne where he dId appear to be genuInely uncomfortable, wIth an accompanYIng decrease In range of motIOn. Dr Mason stated that the claimant was havIng some problems wIth dysesthesIa and dIscomfort In hIS feet and quened the development of penpheral neuropathy He referred hIm for nerve conductIOn tests Dr Mason saw the claimant agaIn In December of 1993 and noted that, whIle hIS prevIOus symptoms were unchanged, he dId report some new symptoms, IncludIng apneIC spells Dr Mason referred hIm for sleep studIes He also noted that the nerve conductIOn study tests ordered earlIer had returned wIth normal results and that the electromyography was also normal He concluded that the only sensory abnormalIty was a decrease In pIn-pnck awareness and that hIS only complaInt was of paIn, whIch could be explaIned by small fibroneuropathy even though such condItIOns were rare His conclusIOn was as follows As far as true musculo-skeletal problems are concerned, I thInk he does have sIgmficant mechamcal back paIn, mostly from L4-5 probably wIth some assocIated nerve root IrntatIOn at that level, but no eVIdence clImcally or on EMG of sIgmficant nerve InJury ThIS wIll prevent hIm from returmng to moderate physIcal labour perhaps even lIght physIcal labour and so the questIOn IS really whether or not he IS capable of beIng vocatIOnal rehabIlItated for sedentary work. In response to the letter sent In September of 1993 to Dr Mason from the Insurer a report was prepared dated January 17 1994 Dr Mason explaIned that he had responded to Dr GIroux In the belIef that the request had come from hIm and also suggested that the claimant was stIll undergoIng CLAIM # 17270 13 some InVestIgatIOns that mIght have ImplIcatIOns on hIS level of dIsabIlIty In any event, at the tIme he was prepanng the report Dr Mason revIewed hIS own files as well as all of the medIcal tests that had been conducted to date His conclusIOns were as follows He does have obJectIve findIngs of decreased range of motIOn of the lower back, tenderness of L4-5 an Increased uptake on bone scan at that level Thus hIS back paIn appears to be a genUIne problem and wIll prevent hIm from returmng to sIgmficant manual labour Mr R. D also has many other areas of musculo-skeletal complaInts for whIch he IS undergoIng further InVestIgatIOns He has bIlateral foot paIn, the qualIty of whIch suggests penpheral nerve paIn and he does have decreased sensatIOn In the feet. Although the EMG testIng wIth respect to thIS IS normal, there are some abnormalItIes on other electncal tests of the nervous system that suggest a problem wIth the cervIcal spInal cord. We are aWaitIng a neurology OpInIOn and further InVestIgatIOns of the braIn and spInal cord are probably gOIng to be reqUIred. In addItIOn he has had chromc complaInts of sleep dIsturbance and had a recent epIsode of alteratIOn of conSCIOusness that dId appear to be orgamcally based. ThIS wIll also reqUIre further neurologIcal assessment and InVestIgatIOns of hIS sleep patterns whIch are beIng orgamzed. I wIll attempt to answer some of the questIOns In your letter of September 3 1993 The dIagnosIs most responsIble for Mr R. D's complaInts of low back paIn IS lumbosacral straIn, supenmposed on degeneratIve changes at L4-5 wIth resIdual paIn from the postenor facet JOInts at that level There may also be some nerve root IrntatIOn at that level but there are no sIgns of neurologIcal defect from that nerve IrntatIOn. There are other factors whIch appear to be contributIng to hIS complaInts and occupatIOnal lImItatIOns He has a subJectIve complaInt of alteratIOn of hIS sleep pattern for whIch he IS undergoIng InVestIgatIOns He also has complaInts of neck dIscomfort whIch on reVIew of my files, seems to have been gradually IncreaSIng there may be and actually orgamc Impairment assocIated wIth thIS as hIS evoked potentIals have shown some sloWIng In the [cervIcal] spInal chord. He may have a sleep dIsturbance whIch has produced "fibrocytIs" - generalIzed day tIme musculo-skeletal dIscomfort and exertIOnal Intolerance There are some InVestIgatIOns that are stIll ongoIng, as described above, especIally CLAIM # 17270 14 the neurologIcal assessment and the sleep InVestIgatIOns Mr R. D IS capable of dOIng hIS own self-care and lIght actIvItIes around the house but IS not performIng most of the heavIer household maIntenance chores However he ObvIOusly IS capable of performIng some odd Jobs around the house, gIven the appearance of hIS hands and the InJury wIth the screwdnver In reVIeWIng the dutIes of hIS usual occupatIOn It would appear that he IS not capable of performIng the manual labour aspect. The patIent feels he IS not capable of returmng to work, descnbIng dIfficulty COpIng wIth sImple day to day actIvItIes I do not feel that he wIll be able to return to the substantIal dutIes of hIS usual occupatIOn, due to the lImItatIOns on hIS abIlIty to perform manual labour DescnptIOn of hIS restnctIOns wIth respect to alternatIve employment wIll have to follow the results of the InVestIgatIOns It IS possIble that I wIll be suggestIng some other forms of occupatIOnal assessment, In partIcular wIth respect to hIS Intellectual capacItIes However I wIsh to aWait further results of the other assessments before proceedIng wIth such. The claimant dId attend at the sleep laboratory tWIce In February of 1994 and a March 30 1994 report found that he had non-restoratIve rest, usually awakemng 5-10 tImes a mght, usually wIth musculo-skeletal dIscomfort most pronounced In hIS back and feet. The summary concluded that he suffered from loud snonng whIch was not accompamed by Sleep Apnea Syndrome Dr Moffat was of the OpInIOn that the poor qualIty of hIS sleep was related to hIS musculo-skeletal dIscomfort and that he mIght benefit from a program In progressIve muscle relaxatIOn. On December 20 1995 Dr GIroux wrote to ManulIfe concernIng the claimant, who he descnbed as suffenng from a "severe, InCapacItatIng musculo-skeletal dIsorder InvolvIng most of hIS body" Dr GIroux noted that In January of 1994 Dr Mason had stated hIS OpInIOn that the claimant could not perform the substantIal dutIes of hIS occupatIOn due to the lImItatIOns on hIS abIlIty to perform manual labour Throughout 1994 other JOInts began to bother the claimant, IncludIng hIS knees and feet. In November of 1994 he began to have chest wall paIn whIch was muscular In ongIn. In December of 1994 he developed ataxIa, slurred speech and became dIsonented. Although there CLAIM # 17270 15 were no neurologIcal deficIts, It became ObVIOUS that hIS problems were drug Induced. In partIcular the claimant notIced that, after takIng Imovane he would feel unusual but contInued to take the drug because It helped hIS sleep pattern. Dr GIroux had seen the claimant on March 8 1995 and revIewed the fibromyalgIa InvolvIng hIS back, knees, feet and paradorsal cervIcal areas He concluded wIth the folloWIng Upon reVIew I find that through the months and years R. IS In fact becomIng more dIsabled due to chromc paIn InvolvIng hIS musculo-skeletal system. I defimtely belIeve he IS totally IncapacItated from any type of occupatIOn. By letter dated February 7 1996 the claimant was advIsed that an appoIntment had been made wIth Dr Dornan for an Independent medIcal assessment. Dr Dornan IS a specIalIst In physIcal medICIne and rehabIlItatIOn. The letter from the Insurer to Dr Dornan Included a senes of questIOns regardIng the claimant's present condItIOn and prognosIs as well as copIes of medIcal reports datIng back to 1990 Included as well were the claimant's Job descnptIOn and laboratory and x-ray reports Someone had wntten at the bottom of the typewntten lIst of enclosures the InclUSIOn of two surveIllance tapes Dr Dornan commented on those vIdeotapes In hIS report whIch I wIll deal wIth later In thIS decIsIOn. In any event the complaInant presented at Dr Dornan's office on March 1 1996 and a report was completed that same day Dr Dornan's clImcalImpressIOns were as follows It was my clImcal ImpreSSIOn, havIng taken a hIStOry from Mr D and havIng observed and examIned hIm, that he suffers from a mIld to mInor degree of cervIcal and lumbar spondylosIs, compatIble wIth hIS age Although he, and Mrs D stated to me that he had gIven every ImpreSSIOn that thIS was totally dIsablIng from all forms of actIvItIes, I could not bnng myself to an ImpreSSIOn that Mr D was eIther totally or permanently dIsabled. In my practIce I see many hundreds of patIents In the course of a year who suffer from sImIlar or greater degrees of Impairment than Mr R. D and who are workIng steadIly In the competItIve work force Dr Dornan also hIghlIghted In hIS report the folloWIng I noted the presence of some callused skIn on each hand In the palmar skIn Just behInd the metacarpo-phalangeal JOInt of each fourth finger Dr Dornan's summary clImcalImpressIOns and conclusIOns were stated, In part, as follows It was my overall clImcalImpressIOn, denved from my eXamInatIOn, that Mr R.D CLAIM # 17270 16 suffered from a degree oflumbar and cervIcal spondylosIs (that IS, dISC degeneratIve dIsease) compatIble wIth hIS age ThIS was corroborated and venfied by the x-rays whIch I revIewed folloWIng my eXamInatIOn. CervIcal and lumbar spondylosIs IS not dIsablIng and most people wIth the degree of spondylosIs exhIbIted by Mr D worked comfortably In the competItIve work force It was dIfficult to escape from a SuspICIOn that a consIderable portIOn ofMr R. D S reported dIsabIlItIes were contnved. The apparent work-hardened callus over the palmar skIn at the metacarpo-phalangeal JOInts of each hand makes It dIfficult to escape from a SuspICIOn that Mr R. D IS dOIng more wIth hIS upper extremItIes than he reported to me (possIbly he has a hobby In whIch he uses both upper extremItIes a good deal) Nevertheless he reported beIng vIrtually unable to do anythIng other than washIng dIshes occasIOnally etc ThIS would not produce the callus described. ThIS findIng would seem to be IncompatIble wIth the reports gIven to me by Mr D and hIS wIfe troubled me (SIC) However I was somewhat relIeved to see a sImIlar observatIOn reported by Dr Mark Mason In hIS report of October 7 1993 In addItIOn, In a report, dated January 17 1994 to Ms Pearl RadclIffe, !ME coordInator of the Toronto group LTD claims, Dr Mason, more firmly and clearly stated In hIS report, "however he ObvIOusly IS capable of performIng some odd Jobs around the house, gIven the appearance of hIS hands and the InJury wIth the screwdnver" Work-hardemng or callusIng of the skIn In the areas descnbed are not produced or created by sedentary work by "odd-Jobs" or occasIOnal actIvIty but by fairly constant repeated and repetItIve actIvIty The callusIng, noted and recorded by myself (and by Dr Mason some three years earlIer), would IndIcate that Mr D was engaged In some type of repetItIve regular actIvIty WIth hIS upper extremItIes, on a fairly regular basIs, SInce some tIme pnor to October 1993 and untIl seen In my office on March 01 1996 Such callusIng certaInly would not be an IndIcatIOn of an IndIVIdual who was eIther totally or permanently dIsabled from all types of physIcal actIvIty and all Jobs avaIlable In the competItIve work force In conclusIOn I would state that Mr D from my eXamInatIOn of the records and from my personal eXamInatIOn, IS neIther totally nor permanently dIsabled and should be returned to the competItIve work force By letter dated June 19 1996 the claimant was advIsed that the Insurer was arrangIng for a rehabIlItatIOn specIalIst to assIst hIm In purSUIng alternatIve employment opportumtIes It made reference to Dr Dornan's report whIch IndIcated that he was not permanently dIsabled from performIng some sUItable type of employment. It also referred to "demonstrated actIvItIes, ofwhIch we are aware, In assIstIng your father-In-law wIth the ChIP wagon busIness" ThIS was the first tIme CLAIM # 17270 17 that the Insurer had made any reference to observatIOns of hIS actIvIty level and those comments related to the most recent surveIllance whIch was done on May 17 1996 A subsequent letter dated, September 3 1996 from the Insurer advIsed the claimant that he would be contacted by the rehabIlItatIOn specIalIst In September to arrange for an appoIntment and that hIS L TIP benefits would contInue for no longer than SIX months, whIch would allow hIm tIme to engage In an actIve Job search. His benefits therefore would termInate on March 31 1997 unless he obtaIned employment before that date In a letter dated December 6 1996 Dr GIroux prepared a report whIch contaIned references to the fact "he has become completely physIcally dIsabled due to chromc muscular paIn syndrome" "at thIS pOInt In tIme he has Intractable paIn InvolvIng hIS four extremItIes IncludIng hIS feet and hIS entIre spInal area" "hIS condItIOn has become worse over the years wIth regards to the degree of paIn that he IS expenencIng" "we have tned every possIble modalIty In the way of therapy herbal medIcatIOn, antI-Inflammatory Predmsone, specIal antI-depressants for muscular paIn relIef and muscle relaxants and nothIng has helped" "he has seen many specIalIsts and they have not been able to help hIm eIther" His letter concluded wIth the folloWIng He has chromc dIffuse tngger pOInts InvolvIng hIS spIne, hIS JOInts, hIS legs, hIS ankles and hIS feet. In essence, Mr R. D has developed a completely refractory Intractable paIn dIsorder InvolvIng hIS myofascIa and I consIder hIm completely dIsabled and I wIll also state that he wIll never return to a functIOnal capacIty where he could work at any type of Job By letter dated February 24 1997 the claimant was advIsed that the rehabIlItatIOn servIces offered earlIer would stIll be avaIlable to hIm untIl March 17 1997 In March of 1997 the claimant was seen by Dr Cnsp at the Oshawa ClImc He revIewed the claimant's hIStOry and examIned hIm, commented on the weakness and paIn In hIS lower extremItIes and quened dIstal neuropathy He also wondered whether the claimant mIght have Muscular SclerosIs, whIch would explaIn the confusIng pIcture of the cOmbInatIOn of spInal stenoSIS or CLAIM # 17270 18 degeneratIve radIculopathIes wIth supenmposed dIffuse plaque affectIng cogmtIve functIOmng and creatIng more of a fibromyalgIa dIscomfort. It was hIS proposal to arrange for an MRl and do appropnate blood work as well as an EMG and a CT scan of the L5 nerve root level Dunng thIS tIme addItIOn surveIllance was undertaken on June 16 17 18 and agaIn on September 13 and 14 1997 In November of that year those two vIdeotapes were provIded to the Umon as well as an October letter to Dr GIroux In whIch the Insurer provIded those same vIdeotapes and asked for hIS comments on them The letter noted that the claimant had been "actIvely Involved' over the years In the operatIOn of a "chIp-truck wagon" busIness The letter stated that "there IS no IndIcatIOn whatsoever of any dIfficulty that Mr R. D has had wIth eIther balance gait or other physIcal problems" and InvIted comment from Dr GIroux concermng these actIvItIes The Insurer also requested that the tape be forwarded to Dr Cnsp for hIS comments On October 31 1997 the Insurer wrote to the claimant adVISIng hIm that the appeal of the termInatIOn of hIS benefits as of March 31 1997 had been demed. In the letter It acknowledged the subJectIve symptoms that had been reported In Dr GIroux'S and Dr Cnsp's reports, IncludIng extreme dIfficulty wIth gait and balance However It noted that those complaInts were subJ ectIve In nature and had not been substantIated by any obJectIve findIngs The letter also made reference to the transferable skIlls analysIs carned out by Work Return Inc That report IdentIfied a number of transferable assets that the claimant possessed based on hIS work expenence and academIc achIevements, whIch Included the abIlIty to work Independently and as a team member knowledge and expenence related to operatIng machInery knowledge and expenence related to safe use of chemIcal compounds used for cleamng, knowledge and expenence In provIdIng techmcal gUIdance and employee supervIsIOn to subordInate staff, knowledge and expenence In performIng admInIstratIve dutIes such as work reports, evaluatIOns, reqUIsItIOmng and record keepIng, knowledge and expenence related to addressIng and solvIng work related problems for peers and knowledge and expenence related to traInIng and demonstratIng proper use of eqUIpment and matenals The transferable skIlls analysIs done on September 29 1997 set out three J ob goals that CLAIM # 17270 19 would be appropnate for the claimant IncludIng an order clerk, Industnal order clerk and a coupon clerk. It also noted that the transferal skIlls analysIs IdentIfied related fields In whIch he would be qualIfied but acknowledged that he mIght not meet all of the qualIficatIOns and that partIcIpatIOn In a volunteer program and some educatIOn upgradIng would Improve hIS possIbIlItIes for a J ob match. The rehabIlItatIve consultant also lIsted vanous sedentary posItIOns that It belIeved the claimant would be able to perform, IncludIng a bankIng, Insurance and financIal clerk, productIOn clerk, admInIstratIve clerk, cleamng supervIsor constructIOn trades helper and labourer and publIc works and maIntenance labourer A letter dated January 19 1998 from Dr GIroux noted that the claimant would be returnIng to work as requested by hIS employer after many years of absence due to dIsabIlIty and expressed hIS concerns that hIS performance would be affected by the paIn medIcatIOn he was reqUIred to take He InqUIred about the possIbIlIty of returmng on a part-tIme basIs and of a momtonng of hIS progress In February of 1998 a letter was sent to the CanadIan Back InstItute from the employer settIng out the claimant's medIcal hIStOry and askIng for some assIstance In prepanng hIm for a return to work. In partIcular the employer asked for an accurate status of hIS overall physIcal capabIlItIes and general health and a tImely prognosIs WIth respect to hIS abIlIty to attend at work on a regular basIs The employer would base ItS decISIOn on what work was avaIlable and possIble on those assessments In a follow-up letter dated Apnl 9 1998 Dr GIroux wrote a note about the claimant that stated as follows Mr D IS a patIent of mIne who I have been seeIng for years Over the past several years he has been unable to work due to several musculo-skeletal InJunes to hIS ankle and back. From these InJunes he has developed an Intractable fibromyalgIa-lIke syndrome His muscular paIn has become dIffuse and accelerated In degree of paIn and CLAIM # 17270 20 functIOnalIty He IS In chromc narcotIc therapy for chromc paIn syndrome He IS not addIcted to these narcotIcs I feel he IS Incapable of employment at thIS tIme (heavy duty or lIght duty) By letter dated August 17 1998 ManulIfe Insurance advIsed the claimant that hIS appeal had been demed. It relIed on prevIOUS medIcal reports but also on the surveIllance tapes mentIOned earlIer as proof that he was engaged In remuneratIve employment and was actIvely Involved In the operatIOn of a busIness REASONS FOR DECISION The claimant's ongInal approval for L TIP was based on hIS ankle InJury In 1988 whIch was the cause of a fall down the stairs whIch In turn caused a tWIStIng InJury to hIS back. That back InJury led to ongOIng and acceleratIng complaInts of paIn that prevented the claimant from returmng to work. He was assessed by the Worker's CompenasatIOn Board as suffenng from Chromc PaIn Syndrome and awarded a permanent penSIOn as a result. All of the medIcal reports folloWIng the acute phase of hIS InJunes concur However In spIte of the fact that rehabIlItatIOn efforts had been recommended In 1990 It would seem the claimant never underwent any rehabItItatIve exerCIses at any tIme dunng hIS absence from work. In act, between 1990 and 1992 when he was awarded hIS WCB pensIOn, there are no letters or medIcal reports about hIS progress or lack thereof In late 1993 and early 1994 It was determIned that he could not perform the essentIal dutIes of hIS prevIOus J ob because of hIS lImItatIOns In respect of manual labour However no further steps were taken towards a return to the workplace In 1996 an Independent medIcal OpInIOn was sought whIch contradIcted prevIOus assessments of the claimant that had found hIm to be totally dIsabled. Although Dr Dornan acknowledged he suffered from degeneratIve dISC dIsease, It was hIS OpInIOn It was not to such a degree that he was Incapable of workIng. It was at thIS tIme that Dr Dornan revIewed the vIdeo surveIllance of the claimant that had been done In July of 1995 It was hIS VIew CLAIM # 17270 21 that the vIdeotapes supported hIS findIngs In hIS report he noted that the tapes "demonstrate clearly that Mr R.D IS capable of performIng the type of work that would be avaIlable In lIght Industry They show Mr R.D In vanous transItIOnal movements such as SIttIng to standIng, standIng to SIttIng, bendIng forwards, archIng hIS back wIth the arms elevated to put obJects Into heIghts above hIS head, clImbIng Into and out of a van, dnvIng, carryIng large buckets or garbage palls repetItIvely some full and some apparently empty prepanng a van for operatIOn, walkIng for what appears to be fairly prolonged dIstances between the sIte at whIch the van had been establIshed (presumably for a day of work) and back to hIS home, cleamng the van, etc, etc, etc" I have revIewed the tapes and have come to the same conclusIOn as Dr Dornan. The claimant was observed settIng up a "ChIp Wagon" for busIness for four consecutIve days He drove the truck to the sIte, unwrapped and plugged In the electIcal cord, set out the garbage palls and sIgns, raised and lowered the canopy on the sIde of the truck, set out the condIments and table and chairs outsIde the van, dId all of that In reverse at the end of the day drove the truck home and proceeded to clean It for the next day He was observed carryIng cases of pop two and three at a tIme, and emptYIng garbage cans Dunng all of thIS tIme he appeared to be In no dIstress I observed no sIgns of paIn, hesItatIOn or guardIng In hIS movements and no restnctIOns In hIS range of motIOn. He wrapped and unwrapped a long electncal cable, reachIng well above hIS head to do so He squatted for about twenty mInutes cuttIng a carpet for hIS front porch. He clImbed to the top of a five foot ladder and then carned that ladder to the garage wIth one hand. AgaIn, at no tIme dId he appear to have any dIfficulty In performIng these tasks He was also observed walkIng for a consIderable dIstance over small hIlls and sIdewalk curbs wIth no ObVIOUS sIgns of paIn. In fact, all of the actIvItIes he was seen performIng dunng thIS surveIllance could reasonably be consIdered lIght work In a workplace settIng. In fact, the vIdeotapes explaIn the remarks of Dr Mason and Dr Dornan about the calluses on the claimant's hands In prepanng the ChIP wagon for operatIOn, the claimant was engaged In the type of manual work that would account for the calluses It was on the basIs of Dr Dornan's report and the vIdeotapes that the Insurer decIded to arrrange for CLAIM # 17270 22 a rehabIlItatIve specIalIst to assess the claimant for alternatIve employment. It would appear that those servIces were never utIlIzed and the clamaInt's benefits were dIscontInued. It IS my OpInIOn that the Insurer had reasonable grounds to come to that conclusIOn. In the first Instance, Dr GIroux IS the only physIcIan who categoncally stated that the claimant was totally dIsabled from any occupatIOn. His OpInIOn was based on the claimant's subJect reportIng of dIffuse and dIsablIng paIn. Dr GIroux makes reference to fibromyalgIa but actually never comes to a firm obJectIve dIagnosIs based on the reqUIsIte tnggers pOInts DespIte Dr GIroux'S OpInIOn, the other medIcal specIalIsts who examIned the claimant agreed that he would be unable to perform the manual labour aspects of hIS prevIOus posItIOn but felt he should be assessed for alternatIve or modIfied employment. Dr Dornan In partIcular was very clear In hIS findIngs and OpInIOn. In the second Instance, It IS ImpoSSIble to Ignore the vIdeotapes They show the claimant performIng dutIes that relate to gaInful employment. As descnbed earlIer hIS actIvItIes are InCOnsIstent WIth hIS claim of such dIffuse and pervasIve paIn that he cannot engage In any form of gaInful employment. To be fair to the claimant, IS IS clear from the vIdeotapes that he carnes hImself In a manner that suggests that he IS careful and cautIOus about hIS actIvItIes His movements are slow and measured. He IS careful not to overdo Nevertheless, he IS capable of dOIng more than Dr GIroux has suggested In hIS reports GIven the length of tIme he has been away from the workforce and the eXIstence of a confirmed dIagnosIs of degeneratIve dISC dIsease, It IS questIOnable what the claimant wIll be capable of dOIng but that IS an Issue between hIm and the Insurer DECISION For all of the reasons lIsted above, the appeal IS demed CLAIM # 17270 Dated thIS 31st day of August, 2001 ~~ Loretta Mikus