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HomeMy WebLinkAbout2001-39021 Benefits Claimant 01-11-22 Decision 1 In the matter of an Appeal Befo re The Subcommittee of the JOint Insurance Benefits Review Committee Regarding Claim #39021 Chair: Felicity D. Briggs Appearing for the Union: Marc Barclay Dave Chew Appearing for the Em ployer: FerIna MurJI Marie Lyttle Claim #39021 2 Included m the most recent collectIve agreement between the partIes are the followmg prOVISIOns Article 22 - Grievance Procedure Article 22 9 - Insured Benefits Grievance 22 9 1 An allegatIOn that the Employer has not provIded an msured benefit that has been contracted for m tlllS Agreement shall be pursued as a Umon gnevance filed under ArtIcle 22 13 (Umon Gnevance) 22 9 2Any other complamt or dIfference shall be referred to the Claims ReVIew SubcommIttee of Jomt Insurance Benefits RevIew CommIttee (JIBRC), estabhshed under AppendIx 4 (Jomt Insurance Benefits RevIew CommIttee), for resolutIOn Appendix 4 JOINT INSURANCE BENEFITS REV IEW COMMITTEE 1 Name of CommIttee The CommIttee shall be referred to as the Jomt Insurance Benefits RevIew CommIttee 2 Purpose of CommIttee The purpose of thIS CommIttee IS to facIhtate commumcatIOns between the Employer and the OPSEU on the subject of Group Insurance, mcludmg BasIc LIfe Insurance, Supplementary LIfe Insurance, Extended Health Insurance, Long Term Income ProtectIOn Insurance, and such other negotIated benefits as may, from tIme to tIme, be mcluded m the Group Insurance Plane It IS understood that the Group Insurance benefits to be provIded to employees and the cost shanng arrangements between the Employer and ItS employees shall be as set out many apphcable collectIve agreement or arbItratIOn award, and the matters for consIderatIOn by tlllS CommIttee shall be only as set out m these terms of reference Claim #39021 3 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 m total At meetmgs of the CommIttee, each party may be accompamed by an Actuary to provIde techmcal advIce and counsel 4 Duties of the CommIttee The dutIes of the CommIttee shall consIst of the followmg - Development of the specIficatIOns for the pubhc tendenng of any negotIated benefits whIch may be mcluded m the Group Insurance Plan (to cover the bargammg umt only), - DetennmatIOn of the manner m whIch the specIficatIOns wIll be made aVailable for pubhc tendenng, - ConsIderatIOn and exammatIOn of all tenders submItted m response the specIficatIOns for tender and preparatIOn of a report thereon, - RecommendatIOn to the Government of Ontano on the selectIOn of the msurance carner or carners to underwnte the Group Insurance Plans, - ReVIew of the semI-annual financial reports on the Group Insurance Plan, and - ReVIew of contentIOus claims and recommendatIOns thereon, when such claim problems have not been resolved through the eXIstmg admmIstratIve procedures The specIficatIOns for tender wIll describe the benefits to be provIded, the cost sharmg arrangement between the Employer and ItS employees, the past financial hIstory of the msurance plans, the employee data, the format for the retentIOn IllustratIOn for each coverage and the financial reportmg reqUIrements Tenders shall be entertamed by the CommIttee from any mdIvIdual msurance carner actmg solely on ItS own behalf ThIS shall not preclude such carner from arrangmg remsurance as may be necessary The basIs for recommendatIOn of an msurance carner(s) wIll mclude the abIhty of the carner(s) to underwnte the plan, comphance of the Claim #39021 4 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, complamts or dIfferences mvolvmg the demal of msured benefits under the Central CollectIve Agreement, when such Issues have not been resolved through the eXIstmg admmIstratIve procedures, save and except a complamt or dIfference ansmg 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 mdependent thIrd party who IS agreed to by both partIes (b) Appropnate Impartial medIcal consultants shall be aVailable to the subcommIttee m an advIsory capacIty to provIde mfonnatIOn on the nature of specIfic Illnesses or dIsabIlItIes (c) MembershIp on the subcommIttee shall be for one (1) year penod, and IS renewable at the dIscretIOn of the nommatmg party, or partIes m the case of the renewal of the term of the mdependent tlllrd party (d) DeCISIOns of the subcommIttee are final and bmdmg (e) The fees and expenses of the medIcal consultants referred to m clause (b), and the mdependent thIrd party referred to m clause (a), shall be dIvIded equally between the Employer and the Umon Article 42 - Long Term Income ProtectIOn Claim #39021 5 Total dIsabIlIty means the contmuous mabIlIty as the result of Illness, mental dIsorder, or Injury of the Insured employee to perform the essentIal dutIes of IllS or her nonnal 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 mabIlIty of the employee to perform the essentIal dutIes of any gamful occupatIOn for whIch he or she IS reasonably fitted by educatIOn, traInmg or expenence Subsequent to the sIgnmg of tlllS collectIve agreement the partIes negotIated and sIgned terms of reference regardmg the establIshment of a subcommIttee to deal wIth dIsputes between the partIes regardmg Long Term Income ProtectIOn (heremafter referred to as "L TIP") That memorandum stated. JIBRIC CLAIMS REVIEW SUBCOMMITTEE TERMS OF REFERENCE AUTHORITY The JIBRC subcommIttee IS establIshed under ArtIcle 22 9.2 and AppendIx 4 of the collectIve agreement between The Crown In RIght of OntarIO and the Ontano PublIc SerVIce Employees Umon PURPOSE OF SUBCOMMITTEE To reVIew and make decIsIOns on appeals from employees on claims mvolvmg the demal of msured benefits under the collectIve agreement whIch have prevIOusly been removed from JIBRC REFERRAL TO THE SUBCOMMITTEE Claim #39021 6 Employees wIth claims that have been removed from JIBRC wIll be notIfied of such, m a tImely, manner by letter (referred to as the "NotIce Letter") to theIr last known address An employee whose claim has been removed, has 45 days, from the date of the notIce letter, to submIt a request m wntmg to OPSEU askmg that OPSEU refer theIr case to the subcommIttee ThIS letter must be copIed to the Management Co-Chair of the JIBRC OPSEU has 90 days from the date of the notIce letter to advIse the Management Co-Chair of JIBRC of theIr decIsIOn to agree or deny the request to appeal If notIce IS not receIved from OPSEU wItllln 90 days from the notIce letter then the claim wIll be deemed to be wIthdrawn SCOPE OF COMMITTEE The SubcommIttee represents the final stage m 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 bmdmg Upon receIpt of the decIsIOn, a Memorandum of Settlement (as attached) wIll be prepared and sIgned by the partIes and forwarded to the msurer SUBCOMMITTEE MEMBERSHIP The subcommIttee wIll consIst of resource representatIves from OPSEU and MBS and an mdependent tlllrd party "Chair" to be named by MBS and OPSEU ROLE OF THE CHAIR To reVIew case representatIOns from MBS and OPSEU To make a detennmatIOns m wntmg wIth respect to each case DeCISIOns must be m accordance wIth the OPS CollectIve Agreement Claim #39021 7 between the Employer and OPSEU and consIstent wIth the group msurance plans m place at the tune facts gIvmg 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 m 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 mfonnatIOn on the nature of specIfic Illnesses or dIsabIlItIes The Chair may request an mterpretatIOn 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 opmIOn related to a decIsIOn on the appeal FEES Fees and expenses, as approved by the partIes, of medIcal consultants and the Chair shall be dIvIded equally between MBS and OPSEU FORMAT OF MEETINGS Each appeal wIll be dealt wIth separately Both partIes, through theIr representatIves wIll provIde, full dIsclosure of the supportmg documentatIOn upon whIch they mtend to rely ThIS dIsclosure wIll take place at least two weeks m advance of the meetmg of the subcommIttee dealIng wIth the subject matter of the appeal If the Chair reqUIres clanficatIOn of medIcal eVIdence, a meetmg of the SubcommIttee wIll be arranged wIth a medIcal consultant agreed to by both MBS and OPSEU, or failIng such agreement, wIth a medIcal consultant called by the Chair Claim #39021 8 MBS and OPSEU wIll Jomtly present a statement of agreed upon facts (to the extent possible) for the appeal to the Chair ASIde from the Impartial medIcal consultant dIscussed above, no other wItnesses wIll be called, except by request of the Chair However, the mdIvIdual claimant wIll be allowed to file a wntten statement m heu of testIfymg If the mdIvIdual claimant chooses to file a statement It must be provIded to the Management Co-Chair of JIBRC at the same tIme as OPSEU's request for appeal MBS has the nght to mtroduce a wntten response to tlllS statement OPSEU wIll present ItS posItIOn on the case wIth supportmg arguments to the Chair MBS wIll present ItS posItIOn on the case wIth supportmg arguments to the Chair and wIll respond to OPSEU's posItIOn OPSEU wIll have nght of reply PresentatIOn by both partIes wIll be based upon the mformatIOn/record on file before the msurance carner at the tune the matter IS removed from the JIBRC, the employee statement If any and MBS's response to the statement EIther party may, If necessary request the attendance of the claimant, who shall be allowed a leave of absence wIthout pay, wIth no loss of credIts, to attend the sub-commIttee meetmg as an observer only The Chair wIll render a wntten decIsIOn wIth supportmg ratIOnale FREQUENCY OF MEETINGS On an as needed basIs as detennmed by MBS and OPSEU Jomtly The partIes agree to these Terms of Reference m support of the ImplementatIOn of ArtIcle 22 9.2 and AppendIx of the collectIve agreement It was prevIOusly agreed by the partIes that a decIsIOn should sImply mdIcate whether a claim was properly or Improperly demed. The Chair IS to refram from elaboratmg on the quantum of the remedy but rather remam seIzed. Subsequent to the Issuance of the decIsIOn the partIes wIll negotIate and Claim #39021 9 execute a memorandum of agreement that wIll mclude the appropnate remedy Dunng the tenn of the prevIOUS collectIve agreement, the partIes attempted to resolve these dIsputes between themselves Not surpnsmgly, there were a number of mstances when consensus was not achIeved. Those matters sImply remamed unresolved. Those outstandmg matters are now bemg brought forward before the subcommIttee as set out above In accordance wIth the agreement of the partIes, ArbItrator Loretta Mikus and I were asked to act as the tlllrd party or mdependent chair In the mstant matter, the claimant was employed as a cook at a correctIOnal facIhty Her last day of work was July 2, 1993 At that tune she was 39 years of age She receIved Short Tenn DIsabIhty untIl December 26, 1993 She receIved L TIP for dIsabIhty from her own occupatIOn for the full penod and she also receIved L TIP for total dIsabIhty from any occupatIOn untIl Apnl 30, 1998 She appeals the tennmatIOn of benefits Ms E.P was mvolved m three motor vehIcle accIdents whIch occurred on March 21, 1988, February 10, 1989 and September 7, 1992 WItllln her first month of absence from work, the claimant saw a rheumatologIst Dr P C He noted that she had been suffenng from progressIve cervIcal pam and numbness m her face and neck At the tune of her leavmg her work she was expenencmg notIceable weakness m her hands rendenng It dIfficult for her to contmue to work. Dr P C also mentIOned that It was "ObVIOUS that there was an underlymg autOImmune problem m the lupus famIly" Claim #39021 10 As early as December 17, 1993 It was noted by Dr P C that the claimant had "fibromyalgIa symptoms" He suggested m a consultatIOn report that, m the past, he had seen secondary fibromyalgIa stemmmg from an mJury Ms E.P was treated dunng tlllS penod wIth medIcatIOn and physIOtherapy Her famIly practItIOner wrote a consultatIOn report for Manuhfe on June 14, 1994 wherem he stated. It IS apparent that she IS suffenng m part from an underlymg autOImmune process and a degree of fibromyalgIa. She also, however IS suffenng from post-traumatIc pam The accIdents may certamly have aggravated her symptoms There have been patIents wIth secondary fibromyalgIa stemmmg from mJunes as well as patIents wIth stable collagen vascular dIsease who get flare-ups mduced by mJury She has been off work smce July 1993 and feels that she IS unable to return at tlllS pomt due to her numerous symptoms m hght of these persIstmg symptoms and failure of medIcal, chIropractIc, and physIOtherapy management the prognosIs for sIgmficant Improvement and return to full-tIme employment IS not good. For the present I am contmumg wIth conservatIve management I have consIdered a psychIatnc consultatIOn however due to the eVIdence suggestmg connectIve tIssue dIsease and fibromyalgIa, I do not feel that tlllS IS appropnate at tlllS tune She may reqUIre an evaluatIOn by a FunctIOnal EvaluatIOns Program or perhaps further assessment wIth respect to fibromyalgIa, perhaps at McMaster m HamIlton In a further consultatIOn done m September of 1994, the claimant was said to "meet the cntena for dIagnosmg a chromc fatIgue syndrome m that she IS functIOnmg at less than 50% of her normal" She also had a physIOtherapy evaluatIOn Dunng tlllS tune Manuhfe was assessmg her claim for L TIP for total dIsabIhty from the essentIal dutIes of her own occupatIOn That approval was eventually forthcommg and set out m a letter to the claimant dated February 20, 1995 retroactIve to January 2, 1994 Claim #39021 11 In November of 1994 the claimant saw a specIahst who reported that she was suffenng from a "chromc condItIon" and that she was "unable to do any modIfied dutIes but tlllS should be reassessed after several months of physIOtherapy" In accordance wIth that suggestIOn, the claimant was seen and assessed by a physIOtherapIst In hIS report of March 15, 1995 the physIOtherapIst suggested that the claimant "wIll not Improve to the pomt of returnmg to tlllS type of employment m the future If her fibromyalgm Improves m the future, m all likelihood she wIll only be able to tolerate hght to sedentary physIcally demandmg work on a part tIme basIs " In the summer of 1995 the claimant saw a psychologIst for assessment In the report Issued It was Said that Overall Ms P has remamed aInbIvalent of the therapy process, partIcularly that change could or would occur There IS some ambIvalence about gettmg better and she IS acceptmg of her health state despIte the numerous symptoms There IS a lack of motIvatIOn and mterest m feehng better Ms P was told that contmued therapy would depend upon some Improvement Ms P has decIded to accept her physIcal state and antIcIpates that any Improvement can't occur In March of 1996 Manuhfe was attemptmg to assess the claimant's status to determme whether she would meet the defimtIOn for total dIsabIhty from any occupatIOn Dunng tlllS tune Ms E.P saw a rheumatologIst who reported that IllS unpreSSIOn was that she had. 1 Raynaud"s phenomenon wIth posItIve ANA 2 QuestIOnof dISCOId lupus m the past 3 Fibromyalgm Claim #39021 12 4 TM dysfunctIOn and breast tenderness 5 PrevIOus cervIcal decceleratIOn mJury 6 IntermIttent respIratory problems Manuhfe also had the claimant exammed by an Independent MedIcal Exammer In IllS 17 page report, dated Apnl 16, 1996, Dr D offered IllS opmIOn and also answered specIfic questIOns that were posed by Manuhfe m ItS consultatIOn request In that report he stated The paucIty of physIcal findmg m the exammatIOn would suggest that Ms P, physIcally, IS neIther totally or pennanently dIsabled and capable of perfonnmg the dutIes reqUIred of a cook. However, Ms P, hstmg a multItude of strange symptoms, feels that she IS physIcally dIsabled. WIth respect to these two questIOns, It IS my feehng that Ms P IS physIcally capable of returnmg to her Job However, as I have noted, her llnpaInnents and dIsabIhtIes would appear to be predommantly psychologIcal It IS possible that these aspects of her presentatIOn may have to be addressed. In November of 1996 Manuhfe mfonned that claimant that It was stIll assessmg the vahdIty of her claim for L TIP for total dIsabIhty from any occupatIOn Another letter dated February 25, 1997 was Issued agam statmg that the assessment was not yet completed. Ms E.P was seen by another rheumatologIst m March of 1997 In hIS report Dr W S stated that ThIS lady does have tenderness m fibrosItIc tngger pomts mcludmg around the shoulder gIrdle area, trapezeI, buttock area. Her complamts are totally subjectIve I cannot measure fatIgue She asked me to fill out a dIsabIhty fonn for her I have stated on the fonn that I am unable to comment on the dIsabIhty because the symptoms are purely subjectIve and there IS notlllng that I can measure Claim #39021 13 WIth respect to her Raynaud's phenomenon and posItIve ENA, I thmk tlllS IS sometlllng that should be watched. PatIents wIth Raynaud's phenomenon and posItIve ENA's may develop scleroderma or one of the scleroderma vanants but there IS no sIgn that she has tlllS at the present tIme I notIce that a dIagnosIs of mIxed connectIve tIssue dIsease was mentIOned m the notes from Sudbury There IS notlllng to support thIS diagnosIs I would be mterested m revIewmg her m about a year's tune There IS notlllng I can recommend for her fatIgue or aches and pams ThIS IS somethmg she IS gomg to have to lIve wIth ManulIfe mformed the claimant that It had msufficIent mformatIOn to "enable proper detennmatIOn of benefit contmuatIOn" on June 19, 1997 To assIst It m tlllS regard a psycho-vocatIOnal assessment was requested and Ms E.P complIed wIth that request That report concluded that her "vocatIOnal prognosIs appears guarded based upon the nature and chromcIty of her condItIon, and her lImIted transferable and EnglIsh based academIc skIlls" It was reported that the claimant dId not "meet all of the condItIons" of any occupatIOn m the formal software search performed by the psychologIst However, It was ultImately detennmed that Ms E.P "may be capable of workmg m an mfonnatIOn/tIcket booth" or as a telemarketer, a tIcket taker or a parkmg lot attendant She also had a functIOnal abIlItes evaluatIOn dunng tlllS tune In that report It was stated m the EvaluatIOn Summary and RecommendatIOns Based on Ms P , s demonstrated abIlItIes dunng the FunctIOnal AbIlItIes EvaluatIOn, she IS likely able to perform actIvItIes wIthm the Sedentary Industry level Prolonged actIvItIes wIll not likely be tolerated and wIll reqUIre pacmg and schedulIng techmques to mamtam a functIOnal and competItIve work pace SpecIfically, the postures mvolved wIll mclude, sIttmg, walkmg and forward reachmg Claim #39021 14 Although I do not have the actual letter mfonnmg the claimant that her L TIP benefits had been approved It IS apparent from the record that between June 19, 1997 and August 1997 her claim was approved. In a letter of August 18, 1997, Ms E.P was notIfied that she would be reqUIred to attend for "servIces relatmg to rehabIhtatIOn" That process began m September of 1997 wIth "The Return to Work SpecIahsts" In ItS report dated September 8, 1997 the stated objectIve was ThIS referral was made to mform the claimant that she IS not totally dIsabled from any occupatIOn under the L TIP plan, but that Manuhfe IS prepared to assIst the claimant wIth mImmal upgradmg and/or Job search A deadhne of 3 to 6 months wIll be addressed by the Claims In the Saine report the rehabIhtatIOn consultant reported that he told Ms E.P of Manuhfe's mtentIOn to dIscontmue her benefits At page 5 It was stated. She was mformed that Manuhfe has medIcal mformatIOn that supports that she IS not totally dIsabled from any occupatIOn Moreover, she was also mformed that Manuhfe mIght support a (mImmal) trammg program and Job search, rangmg from 3 to 6 months Interestmgly, her response was not adversanal She explamed that she dId not object to returnmg to work, but that she dId not know how she could return to work. The rehabIhtatIOn consultant sent a letter to the claimant whIch, m part, mcluded the above mfonnatIOn and asked her to confirm ItS report regardmg what took place at the meetmg In the same letter, Ms E.P was notIfied that an appomtment would be sought wIth her physICian to dISCUSS the "possIbIhty that you could commence a vocatIOnal rehabIhtatIOn plan" She sIgned and returned that document Claim #39021 15 There were further meetmgs of the claimant and the rehabIlItatIOn consultant on November 24, 1997, January 9, 1998, January 16, 1998 and January 30, 1998 Vanous other people attended at these meetmgs such as the claimant's physIcIan and polIcyholder representatIves At the final meetmg m January a "work assessment/hardemng plan" was created. It was noted m that plan that her physICian had "mdIcated that the claimant could commence a return to work plan" On Feburary 9, 1998, The Return to Work SpecialIst rehabIlItatIOn specialIst wrote a letter to the claimant's physICian settmg out the dIscussIOn that took place at the January 9, 1998 meetmg In that letter It was stated that "Dr C confinned that the claimant IS not totally dIsabled. She reqUIres a gradual remtegratIOn back to the workforce" Dr C sIgned and returned that document The formal letter mfonnmg the claimant that her benefits were bemg dIscontmued was dated March 16, 1998 In arnvmg at ItS deCISIOn, ManulIfe relIed upon the Psycho-vocatIOnal assessment, medIcal documentatIOn mcludmg Dr C's VIew and the functIOnal abIlItIes evaluatIOn In response to thIS letter the claimant wrote to ManulIfe and mcluded another "attendmg physIcIan's statement" from Dr C dated Apn119, 1998 In that statement Dr C stated that diagnosIs was stIll fibromyalgIa but that the claimant was not receIvmg any actIve treatment and that there was "no medIcal eVIdence to show any physIcalllnpaInnent" In later correspondence to ManulIfe, dated June 16, 1998, the claimant stated. Claim #39021 16 My physIcIan Dr C referred me to Dr S G I attended Dr G's office on June 6, 1998 and agam on June 13, 1998 He concurs that wIth my present health condItIon prevents me from returnmg to work. The claimant also suggested m tlllS letter that she would see another physIcIan of the carrIer's chOIce for a further referral It IS noteworthy that although there was reference to a medIcal opmIOn gIven from Dr S G , there was no medIcal consultatIOn provIded. SUBMISSIONS The Umon argued that It IS the VIew of the claimant that the functIOnal abIlIty evaluatIOn was not congruent wIth her ongomg abIlIty to do the work. Further, Ms E.P strongly dIsagrees wIth Dr C's VIew that she IS not totally dIsabled. The VIew of the rheumatolgIst's VIew IS to be preferred. The Umon also contended It IS tellIng that the claimant never returned to work. The Employer asserted that It IS Important to look at the medIcal mformatIOn that was current as of Apnl 1998 when the claimant's benefits were dIscontmued. That mfonnatIOn IS clear that Ms E.P was no longer totally dIsabled from performmg the essentIal dutIes of any occupatIOn The final attendmg physICian'S statement from the claimant's famIly practItIOner stated that she had only mmllnallllnItatIOn and that there was no objectIve eVIdence of total dIsabIlIty ThIS eVIdence must be seen to be compellIng Claim #39021 17 DECISION In tlus matter It appears that ManulIfe took a sIgmficant penod of tune m determmmg whether to approve Ms E.P's benefit claim for total dIsabIlIty from the essentIal dutIes of any occupatIOn ManulIfe asked for and receIved a vanety of dIfferent VIews and ultImately decIded to approve the claim What I found mterestmg IS that not all of the reports from thIS tIme penod are congnlent wIth approval of Ms E.P's claim For example, m the IME's report dated Apnl 16, 1996 there was reference to a "paucIty of physIcal findmgs" NotwIthstandmg comments such as tlus, the claim was approved Indeed, It IS probably because of comments such as thIS that almost unmedIately upon approval of the claim Ms E.P was notIfied that a rehabIlItatIOn finn had been retamed for an assessment In any event, after consIderatIOn of thIS matter I am of the VIew that the appeal must be demed. I have revIewed the statements of a vanety of professIOnals, not the least of whIch was her general practItIOner, and each make clear that Ms E.P IS not totally dIsabled. Indeed, there IS vIrtually no eVIdence to the contrary other than the unsubstantIated statement from the claimant that she sought the VIew of another physICian who confirmed she was totally dIsabled. It IS apparent from the documents that a return to work program was developed for the claimant that was approved by her own physICian It Claim #39021 18 appears that she elected not to partIcIpate m that program That IS unfortunate The UnIon suggested that an mference could be drawn from the fact that the claimant stIll has not returned to work. I thmk not In and of Itself, there sImply IS no nexus that can be made from a claimant's failure to return to work and a findmg of total dIsabIlIty F or those reasons, the appeal IS denIed. Dated m Toronto thIS 22nd day of November, 2001 FelIcIty D Bnggs Claim #39021