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HomeMy WebLinkAbout2001-43091 Benefits Claimant 01-06-25 Decision IN THE MATTER OF AN APPEAL BEFORE JOINT INSURANCE BENEFITS REVIEW COMMITTEE REGARDING CLAIM # 43091 CHAIR Loretta Mikus APPEARING FOR THE UNION Mark Barclay APPEARING FOR THE MINISTRY Andrew Baker CLAIM # 43091 1 Included In the most recent collectIve agreement between the partIes are the folloWIng provIsIOns Article 22 - Grievance Procedure Article 22.9 - Insured Benefits Grievance 229 1 An allegatIOn that the Employer has not provIded an Insured benefit that has been contracted for In thIS Agreement shall be pursued as a Umon gnevance filed under ArtIcle 22 13 (Umon Gnevance) 22 9 1 Any other complaInt or dIfference shall be referred to the Claims ReVIew SubcommIttee of JOInt Insurance Benefits RevIew CommIttee (JIBRC) establIshed under AppendIx 4 (JOInt Insurance Benefits RevIew CommIttee), for resolutIOn. Appendix 4 JOINT INSURANCE BENEFITS REVIEW COMMITTEE 1 Name of Committee The CommIttee shall be referred to as the JOInt Insurance Benefits RevIew CommIttee 2. Purpose of Committee The purpose of thIS CommIttee IS to facIlItate commumcatIOns between the Employer and the OPSEU on the subJect of Group Insurance, IncludIng BaSIC LIfe Insurance, Supplementary LIfe Insurance, Extended Health Insurance, Long Term Income ProtectIOn Insurance, and such other negotIated benefits as may from tIme to tIme, be Included In the Group Insurance Plane It IS understood that the Group Insurance benefits to be provIded to employees and the cost shanng arrangements between the Employer and ItS employees shall be as set out In any applIcable collectIve agreement or arbItratIOn award, and the matters for consIderatIOn by thIS CommIttee shall be only as set out In these terms of reference 3 Composition of Committee The CommIttee shall be composed of an equal number of representatIves from the Employer and from the OPSEU wIth not more than eIght (8) representatIves In total At CLAIM # 43091 2 3 meetIngs 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 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 CLAIM # 43091 4 (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 an SIng 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 ( a) MembershIp on the subcommIttee shall be for one (1) year penod, and IS renewable at the dIscretIOn of the nomInatIng party or partIes In the case of the renewal of the term of the Independent thIrd party (d) DeCISIOns of the subcommIttee are final and bIndIng. (e) The fees and expenses of the medIcal consultants referred to In clause (b), and the Independent thIrd party referred to In clause (a), shall be dIvIded equally between the Employer and the Umon. Article 42 - Long Term Income Protection Total dIsabIlIty means the contInUOUS InabIlIty as the result of Illness, mental dIsorder or InJury of the Insured employee to perform the essentIal dutIes of hIS or her normal occupatIOn dunng the qualIficatIOn penod, and dunng the first twenty- four months of the benefit penod' and thereafter dunng the balance of the benefit penod, the InabIlIty of the employee to perform the essentIal dutIes of any gaInful occupatIOn for whIch he or she IS reasonably fitted by educatIOn, traInIng or expenence Subsequent to the sIgmng of thIS collectIve agreement the partIes negotIated and sIgned terms of reference regardIng the establIshment of a subcommIttee to deal wIth dIsputes between the partIes regardIng Long Term Income ProtectIOn (hereInafter referred to as "L TIP") That memorandum stated CLAIM # 43091 5 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 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 CLAIM # 43091 6 prepared and sIgned by the partIes and forwarded to the Insurer SUBCOMMITTEE MEMBERSHIp. The subcommIttee wIll consIst of resource representatIves from OPSEU and MBS and an Independent thIrd party "Chair" to be named by MBS and OPSEU ROLE OF THE CHAIR" To reVIew case representatIOns from MBS and OPSEU To make a determInatIOns In wntIng wIth respect to each case DeCISIOns must be In accordance wIth the OPS CollectIve Agreement between the Employer and OPSEU and consIstent WIth the group Insurance plans In place at the tIme facts gIVIng nse to the dIspute arose ROLE OF MEDICAL CONSULTANTS Appropnate ImpartIal medIcal consultants wIll be agreed by the partIes and shall be avaIlable to the SubcommIttee In an advIsory capacIty If the partIes cannot agree on a medIcal consultant, the Chair may call on a consultant from a roster supplIed by the College of PhysIcIans and Surgeons The medIcal consultants wIll provIde InfOrmatIOn on the nature 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 CLAIM # 43091 7 supportIng documentatIOn upon whIch they Intend to rely ThIS dIsclosure wIll take place at least two weeks In advance of the meetIng of the subcommIttee dealIng wIth the subJ ect matter of the appeal If the Chair reqUIres clanficatIOn of medIcal eVIdence, a meetIng of the SubcommIttee wIll be arranged wIth a medIcal consultant agreed to by both MBS and OPSEU or faIlIng such agreement, wIth a medIcal consultant called by the Chair MBS and OPSEU wIll JOIntly present a statement of agreed upon facts (to the extent possIble) for the appeal to the Chair ASIde from the ImpartIal medIcal consultant dIscussed above, no other wItnesses wIll be called, except by request of the Chair However the IndIVIdual claimant wIll be allowed to file a wntten statement In lIeu of testIfYIng. If the IndIVIdual claimant chooses to file a statement It must be provIded to the Management Co-Chair of JIBRC at the same tIme as OPSEU's request for appeal MBS has the nght to Introduce a wntten response to thIS statement. OPSEU wIll present ItS posItIOn on the case wIth supportIng arguments to the Chair MBS wIll present ItS posItIOn on the case wIth supportIng arguments to the Chair and wIll respond to OPSEU' s posItIOn. OPSEU wIll have nght of reply PresentatIOn by both partIes wIll be based upon the InformatIOn/record on file before the Insurance carner at the tIme the matter IS removed from the JIBRC the employee statement If any and MBS's response to the statement. EIther party may If necessary request the attendance of the claimant, who shall be allowed a leave of absence wIthout pay wIth no loss of credIts, to attend the sub- commIttee meetIng as an observer only The Chair wIll render a wntten decIsIOn wIth supportIng ratIOnale FREQUENCY OF MEETINGS On an as needed basIs as determIned by MBS and OPSEU JOIntly The partIes agree to these Terms of Reference In support of the ImplementatIOn of ArtIcle 22 9 2 and AppendIx of the collectIve agreement. Dunng the term of the prevIOUS collectIve agreement, the partIes attempted to resolve these dIsputes between themselves Not surpnsIngly there were a number of Instances whereIn they were unable to agree Those matters sImply remaIned unresolved. Those outstandIng CLAIM # 43091 8 matters are now beIng 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 thIrd party or Independent chair ThIS IS the first decIsIOn an SIng from thIS process At the first day of heanng the partIes agreed that the Chair should render a decIsIOn statIng that the claim was properly or Improperly demed wIthout elaboratIng on the quantum of the remedy but remaIn seIzed of the matter Subsequent to the Issuance of the decIsIOn the partIes wIll negotIate and hopefully agree upon a memorandum of agreement as to the appropnate remedy There was also dIscussIOn between the partIes about the extent and content reqUIred In decIsIOns Issued by the ChaIr(s) I thInk IS It fair to say the partIes agreed that, at the begInmng the ChaIr(s) wIll attempt to set out In some detaIl the dIspute and the reasons for the decIsIOn. The partIes' antIcIpate that the ChaIr(s) wIll establIsh some pnncIples they can be guIded by In asseSSIng future dIsputes It IS hoped that as the Junsprudence develops, there wIll be less need for lengthy decIsIOns because the fundamental pnncIples wIll already by establIshed. The claimant In thIS appeal has been employed as a Food ServIce Helper wIth the Mimstry of Labour at the North Bay PsychIatnc HospItal Her last day of work was August 14 1995 and her short term sIckness benefits expIred on February 16 1996 The claimant's hIStOry goes back to October of 1992 when she suffered a workplace accIdent whIch resulted In an InJury to her nght shoulder She was off work for a short penod of tIme but contInued to expenence paIn In her shoulder She underwent extensIve physIOtherapy treatment and In Apnl of 1993 a letter from her orthopaedIc surgeon, Dr Holmes, found her to have slIght lImItatIOn of movement In that her cervIcal spIne and tenderness around the nght rotator cuff He dIagnosed her as suffenng from rotator cufftendomtIs or burSItIS and CLAIM # 43091 9 suggested that she have a sterOId/local anaesthetIc InJected Into the shoulder for relIef of her symptoms Throughout all of thIS tIme she contInued to work. In July of 1993 a note from the physIOtherapIst at the PhysIOtherapy North OrthopaedIc and Sports MedICIne ClImc suggested she was suffenng from chromc rotator cuff tendInItIs due to overuse Although she contInued to work throughout thIS tIme, In Apnl and agaIn In July of 1993 she suffered what was descnbed as a recurrence and mIssed some work tIme In December of 1993 she saw Dr Holmes agaIn who suggested another InJ ectIOn of sterOId/local anaesthetIc Into the area of the rotator cuff That was done In January of 1994 and the claimant was Instructed to remaIn off work for two weeks untIl her shoulder could be reassessed. She returned to work but contInued to complaIn of paIn and mIssed work occasIOnally as a result. All of thIS lost tIme was compensable under the Worker's CompensatIOn Act. A subsequent VISIt to Dr Holmes In February of 1994 resulted In a suggestIOn that she undergo exploratory surgery of her nght shoulder The claimant was reluctant to do so at the tIme However a VISIt to hIm a month later showed no Improvement In her condItIOn and Dr Holmes booked her for an exploratIOn of the nght shoulder acromIOplasty and possIble eXCISIOn of the outer edge of the nght clavIcle, all ofwhIch was done on Apnl11 1994 The surgery resulted In the conclusIOn that the claimant dId not have a rotator cuff tear but dId have ImpIngement syndrome whIch reqUIred acromIOplasty At the same tIme a small centImetre of the outer edge of the nght clavIcle was excIsed. A May 1994 letter from Dr Holmes to the Worker's CompensatIOn Board stated that she was In a slIng and body bandage and was totally dIsabled from workIng. It was further noted that at that tIme she was unable to dnve a motor vehIcle or use publIc transportatIOn. A follow-up appoIntment In June dIsclosed that she was recovenng fairly well but that she was not ready to return to modIfied work and that she would be reassessed In one months tIme At the same tIme memos made by the nurse specIalIst at the Worker's CompensatIOn CLAIM # 43091 10 Board noted that the usual healIng tIme for surgery of thIS type was twelve weeks and, for that reason, physIOtherapy was approved untIl September of 1994 The claimant contInued to see Dr Holmes regularly throughout that penod of tIme and an October 1994 letter to the Worker's CompensatIOn Board from hIm stated that she contInued to have persIstent paIn In her nght shoulder and that she was makIng very slow progress In physIOtherapy It was hIS strong VIew that she was totally dIsabled from workIng and he noted that he had advIsed her to stay off work untIl her next appoIntment two weeks hence He was unable to estImate when she would be able to return to work. A subsequent physIcIan's statement to the Insurer by Dr Holmes dated the 24th of October 1994 stated that she was unable to perform the dutIes of her own occupatIOn or any occupatIOn for another three to SIX months That same month a letter to the Worker's CompensatIOn Board suggested that, whIle there was no sIgmficant reason for the delay she had made lIttle Improvement. Although she was able to dnve a motor vehIcle and use publIc transportatIOn, he stIll advIsed her to stay off work. At the request of the Worker's CompensatIOn Board Ms Boyer attended a multI-dIscIplInary assessment at the regIOnal evaluatIOn centre In Sudbury on January 18 1995 The summary of that evaluatIOn stated that she presented wIth dIffuse myofascIal-type paIn encompassIng the nght shoulder gIrdle and a hIStOry of recently dIagnosed dIabetes The recommendatIOns were that she receIve no further formal treatment and that she return to work wIth medIcal restnctIOns of repetItIve resIsted or sustaIned work at shoulder level or hIgher The report of the psychIatnc team doctor was sImIlar In that he dIagnosed a fibromyalgIa syndrome wIth local features and suggested that medIcal restnctIOns would Include repetItIve work at or above shoulder heIght or heavy overhead lIftIng. He also advIsed the claimant that she could not do herself any damage by returmng to work. CLAIM # 43091 11 A February 1995 letter from Dr Holmes concluded as follows At thIS stage I really do not feel that there IS anythIng else that I can offer thIS lady I feel that she IS dIsabled In the sense that she IS unable to do heavy work. I have no further recommendatIOns In March of 1995 the claimant returned to work on modIfied dutIes despIte complaInts of paIn In her shoulder and neck area. By the first week of Apnl 1995 she had gradually Increased her work to eIght hours a day She was notIfied by letter dated July 28 1995 that her applIcatIOn for long term dIsabIlIty benefits wIth ConfederatIOn LIfe had been approved and that she would be reCeIVIng benefits retroactIvely for the penod October 9 1994 untIl Apnl9 1995 the date of her return to full-tIme dutIes The next medIcal document on file IS a September 12, 1995 letter from Dr Holmes statIng that the claimant had returned to hIS office complaInIng of paInful feet, In partIcular the left fifth toe She was referred to Dr Mitchell at the PhysIcal, MedIcal and RehabIlItatIOn ClImc In North Bay but neIther he nor Dr Holmes could find a reason for the paIn. Another applIcatIOn for long term dIsabIlIty benefits wIth ConfederatIOn LIfe was submItted In December of 1995 Dr Rochefort, the claimant's attendIng physIcIan throughout these years, completed a form that stated that she was prevented from dOIng her work or any occupatIOn and descnbed her problems as beIng "unable to walk for any dIstance and lImIted as to frequency dunng the day lImIted standIng tIme" Under the general remarks she stated as follows PatIent IS on TenormIan for hypertenSIOn and uses Glvbunde for her dIabetes She should be able to use antI-mflammaton drugs to reheve some of the pam, she IS usmg Sulcrate GavIscon and PepcId. ThIs wa, she IS able to have some penods of rehef. V oltaren has been prescribed as well as Tvlenol number three At the moment she IS also suffenng from an acute gnef s,ndrome due to the loss of her spouse Although she IS resIstmg at the moment she will probabh need some the rap' m the future to deal wIth thIS problem and to readapt her hfe CLAIM # 43091 12 On the basIs of that medIcal InformatIOn the Insurance company declIned to approve her applIcatIOn for benefits The next medIcal note on file was dated November 26 1996 and was from Dr Rochefort to the Insurance company concernIng the demal of benefits It repeated the hIStOry of the claimant's condItIOn and noted that she was workIng In a permanently modIfied occupatIOn due to her post-operatIve restnctIOns and lImItatIOns WIth respect to her shoulder However Dr Rochefort said that she had "further lImItatIOns and persIstent Increased paIn In her nght shoulder and arm to wnst dIstnbutIOn. She also has developed paIn and restncted range of motIOn In her left shoulder" Dr Rochefort was also of the VIew that there were defimte sIgns of fibromyalgIa to both shoulder scapular deltOId and pectoral musculatures In addItIOn, because of her dIabetes, she was complaInIng severely of "burmng feet" syndrome whIch further restncted her standIng and walkIng capacIty Dr Rochefort's conclusIOn was "I agree wIth her that she wIll not be able to perform the dutIes of her prevIOus permanently modIfied posItIOn." In response to Dr Rochefort's letter the Insurer arranged for an Independent medIcal eXamInatIOn and functIOnal abIlItIes evaluatIOn to determIne the extent of the claimant's dIsabIlIty A report dated May 26 1997 from NipISSIng Rehab ServIces concluded that the claimant was able to work at the lIght physIcal demand level for an eIght-hour day It was stated that she had not exaggerated any of her symptoms and had put forth an excellent effort therefore produCIng valId results whIch could be the basIs for future medIcal and vocatIOnal planmng. It was stated that the claimant's functIOnal abIlItIes were lImIted by her poor level of cardIOvascular fitness and recommended partIcIpatIOn In an eIght-week cardIOvascular fitness rehabIlItatIOn program The summary concluded that If the ergonomIc report recommendatIOns prevIOusly submItted to the employer had been Implemented the claimant had the current abIlItIes to return to work. If those recommendatIOns had not been CLAIM # 43091 13 Implemented, It was suggested that they consIder an eIght-week cardIOvascular fitness program to facIlItate her return to work. A report dated the same day from Dr Graham, the MedIcal DIrector of RehabIlItatIOn at LaurentIan HospItal, was of the OpInIOn that the claimant exhIbIted a good functIOnal range of motIOn In both shoulders Although lackIng the last twenty to thIrty degrees of forward flexIOn In her nght shoulder he found mImmal wastIng In the nght supra and InfraspInatus compatIble wIth dIsuse In fact, hIS clImcal findIngs were consIstent WIth those of Dr Holmes In January of 1995 It was Dr Graham's VIew that the maIn medIcal condItIOn lImItIng the claimant's work capacIty was fibromyalgIa. He was In concurrence wIth the dIagnosIs and treatment to date but added that she mIght benefit from tncyclIc and antI- depressant for her neuropathIc paIn. It was hIS VIew that the claimant's medIcal condItIOn was now stable and that there was no medIcal condItIOn apparent to hIm that could pose a nsk of damage or harm to her by a return to sUItable modIfied work. On the basIs of the medIcal InformatIOn provIded to the Insurance company at that tIme the claimant's applIcatIOn for long term dIsabIlIty benefits was once agaIn demed. That was confirmed In a letter dated August 1 1997 from ManulIfe FInanCIal to the complaInant. Throughout all of thIS tIme, that IS from August 14 1995 to August of 1997 the claimant remaIned offwork, most of that tIme on an unpaid leave of absence She had appealed the demal of benefits and the last medIcal note on file IS dated September 1998 by a Dr Truchon, who acknowledged that the claimant was new to hIS practIce and opIned that she was suffenng from chromc problems wIth her feet and her nght shoulder and fibromyalgIa. It was hIS VIew that fibromyalgIa IS dIsablIng for most people because of chromc fatIgue and paIn and that It IS dIfficult for people wIth fibromyalgIa to work. He stated "In VIew of the multIplIcIty ofMrs Boyer's problems, I thInk that she contInues to be unfit for work." CLAIM # 43091 14 What IS clear from all of the documentatIOn provIded IS that wIth the exceptIOn of the post operatIve penod In 1995 ImmedIately folloWIng the surgery on her shoulder none of the medIcal reports suggest that the complaInant was totally dIsabled from performIng the dutIes of her own occupatIOn. She returned to modIfied dutIes after her surgery and for a penod of tIme contInued to do them wIthout dIfficulty None of the medIcal documentatIOn provIded after that penod of tIme suggested that she was unfit to work. Except for one of Dr Rochefort's reports, none of the others stated clearly that she was dIsabled from performIng the dutIes of her own occupatIOn, much less any occupatIOn. Almost a year had elapsed between the tIme that Dr Rochefort filled out the physIcIan's statement for benefits and her letter to the Insurer about those benefits In the November 1996 letter she commented on the claimant's subJectIve reportIng of paIn, Insomma and fatIgue and noted that her symptoms had Increased over the past year However there IS no obJectIve medIcal proof that those symptoms had In fact Increased or that they had been debIlItatIng In the first Instance Dr Rochefort sImply agreed wIth her patIent but gave no ratIOnale for her OpInIOn. GIven that It IS the only medIcal OpInIOn that supports a findIng of total dIsabIlIty her faIlure to provIde that obJectIve eVIdence does not support the applIcatIOn for benefits she completed In December of the prevIOUS year On the basIs of the medIcal documentatIOn provIded the appeal In thIS matter IS demed. Dated thIS 25th day of June, 2001 Loretta Mikus CLAIM # 43091