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HomeMy WebLinkAbout2001-45751 Benefits Claimant 01-08-26 Decision IN THE MATTER OF AN APPEAL BEFORE THE SUBCOMMITTEE OF THE THE JOINT INSURANCE BENEFITS REVUE COMMITTEE REGARDING CLAIM # 45751 CHAIR LORETTA MIKUS APPEARING FOR THE UNION MARK BARCLAY APPEARING FOR THE EMPLOYER HIROKO SAW AI Included In the most recent collectIve agreement between the partIes are the folloWIng CLAIM # 45751 1 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 subJ 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 4 Duties of the Committee The dutIes of the CommIttee shall consIst of the folloWIng CLAIM # 45751 2 3 (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 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 CLAIM # 45751 4 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 collectIve agreement between The Crown In RIght of Ontano and the Ontano PublIc ServIce Employees Umon. PURPOSE OF SUBCOMMITTEE CLAIM # 45751 5 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 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 CLAIM # 45751 6 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 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 CLAIM # 45751 7 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 first 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 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) CLAIM # 45751 8 wIll attempt to set out In some detaIl the dIspute and the reasons for the decIsIOn. The partIes' antIcIpate that the ChaIr(s) wIll establIsh some pnncIples they can be gUIded by In asseSSIng future dIsputes It IS hoped that as the Junsprudence develops, there wIll be less need for lengthy decIsIOns because the fundamental pnncIples wIll already by establIshed. The claimant, Mrs G.K was employed as an enforcement clerk (OAG #8) by the Mimstry of the Attorney General She began her employment In 1990 and her last day of work was July 20 1995 She was In receIpt oflong term dIsabIlIty benefits (LTIP) from January 30 1996 to December 24 1998 and her claim moved Into the "any occupatIOn" defimtIOn of total dIsabIlIty as of January 21 1998 She has remaIned off work SInce that tIme The claimant IS elIgIble for benefits only untIl July 7 2002 at whIch tIme she wIll be 65 years of age Mrs G.K's problems began In 1995 when she suffered a nght rotator cuff tear and underwent surgery on August 21 1995 for a complex repair of that tear In November of 1995 her orthopaedIc surgeon, Dr Roscoe, advIsed the employer that she was stIll undergoIng rehabIlItatIOn, contInued to be dIsabled from work and would be unable to return to her Job for another two to three months An applIcatIOn for long-term dIsabIlIty benefits wIth ConfederatIOn LIfe Insurance Company was completed by the claimant In December of 1995 and an AttendIng PhysIcIan's ImtIal Long Term DIsabIlIty Benefits Statement was completed by Dr Roscoe At that tIme he gave a dIagnosIs of nght rotator cuff tear and noted her physIcal condItIOn was "ambulatory wIth a medIUm functIOnal lImItatIOn capable of lIght actIvIty" He noted that she was presently dIsabled from her own occupatIOn and would be for another three to SIX months He also stated she would reqUIre further physIOtherapy In January of 1996 the claimant was Informed by the Insurer that her claim for LTIP had been approved on the basIs of total dIsabIlIty from performIng the essentIal dutIes of her own occupatIOn. Those benefits became effectIve January 30 1996 and It was antIcIpated that they would contInue untIl February 29 1996 CLAIM # 45751 9 On February 7 1996 Dr Roscoe wrote to the Insurer concernIng contInuIng benefits for the claimant. In hIS letter he stated as follows As you know Mrs G.K. s chmcal condItIOn IS one of a rotator cuff tear requlflng operatIve treatIuent on the 21st of August 1995 Her post-op course has been charactenzed b, sIgmficant stIffuess and pam developmg m her shoulder She IS to partIcIpate m a rehab program but her progress has been slow to date At the present tIme she has ongomg restnctIOns wIth regards to her work. She should not use her nght arm forcefulh man, manner that would reqmre her to repetItIveh rotate her arm. Overhead work IS out of the questIOn and an, degree ofhftmg or manual use of the nght arm IS contra-mdIcated at thIS pomt m tIme In your descnptIOn of her Job I thmk she would have dIfficult, retnevmg files eIther at a low level or overhead reachmg or usmg her nght arm to hft an,1hmg of an, nature The less stressful type actIVItIes such as answenng the telephones, some tvpmg and takmg wntten notatIOn I thmk would probabh be wIthm her capabIhtIes In response to thIS letter the Insurer wrote to the claimant adVISIng her to contact the employer wIth regards to a return to modIfied dutIes She dId not, however return to work and a subsequent letter wntten on Apnl 2, 1996 from the Insurer advIsed the claimant that a rehabIlItatIOn speCIalIst from ManulIfe would be contactIng her to arrange an appoIntment to assess her present abIlItIes In relatIOn to her posItIOn. In a letter dated May 1 1996 and In response to a request from the Insurer Dr Roscoe commented on an Apnl 4th reVIew of the claimant. At that tIme she was reportIng an acute flare-up of dIscomfort and paIn In her shoulder of severe IntenSIty His physIcal exam supported her complaInt, promptIng a note saYIng that she would be unable to return to her dutIes He suggested that It would be of benefit to her to start a modIfied work program On July 4 1996 the claimant was admItted to the emergency department at St. Joseph's Health Centre wIth complaInts of central retrosternal and left sIded chest paIn. She felt a tIghtness In her chest that spread over the precordIal area and radIated Into her left shoulder She expenenced shortness of breath and sweatIng but no nausea. It was noted on the emergency report that she had a hIStOry of unstable angIna pectons as well as havIng had prevIOUS pulmonary embolI and pneumoma CLAIM # 45751 10 In 1967 and 1968 At the tIme she was takIng Nitroglycenn, VentolIn puffers and CardIzem. When she presented at the emergency room her blood pressure was 200/1 00 by cuff and, 198/99 manually her heart rate was 88 per mInute, respIratIOns 20 per mInute Her temperature was normal, as were her heart sounds A provIsIOnal dIagnosIs on admISSIOn was unstable angIna pectons wIth a probabIlIty of pulmonary embolus She was placed on Hepann over the weekend and a repeat ventIlatIOn profusIOn lung scan showed that the prevIOusly well defined defect In the postenor segment of the left upper lobe had been resolved. The Hepann was dIscontInued and she was dIscharged on July 13 1996 wIth a dIagnosIs of pulmonary embolus, hypertensIOn, coronary artery dIsease, chromc obstructIve pulmonary dIsease (COPD) and hypercholesterolemIa. She was dIscharged on a four month course of CoumIdIn, a mtroglycenn patch tWIce dally Beclovent, VentolIn, Atrovent, Pravachol, Monopnl and CardIzem. Subsequent to that emergency VISIt an AttendIng PhysIcIan's Statement of ContInued DIsabIlIty was completed In whIch It was stated that she was totally dIsabled from her own or any occupatIOn as a result of her cardIac problems She contInued on L TIP benefits and on June 26 1997 was advIsed by ManulIfe that they had determIned rehabIlItatIOn was not appropnate at that tIme and that, should her condItIOn Improve, that decIsIOn would be re-evaluated. The claimant was remInded, however that the defimtIOn of total dIsabIlIty would change In January of 1998 so that, In order to be elIgIble for contInued benefits, she would have to be wholly and contInuously dIsabled by Illness or accIdent whIch prevented her from performIng the essentIal dutIes of any occupatIOn for whIch she would be reasonably fitted by educatIOn, traInIng or expenence Dunng that tIme she had been seeIng a cardIOlogIst, Dr Ranganathan, and In hIS January 20 1997 report he found the claimant to have a blood pressure of 180/90 and was of the OpInIOn that she contInued to suffer from uncontrolled hypertensIOn. A letter from hIm dated one month later commented on her hIStOry of COPD asthma and uncontrolled hypertensIOn and suggested that she ought to be recommended for permanent dIsabIlIty Letters by Dr Ranganathan to Dr Poon, the gnevor's personal physIcIan, contInued on a monthly basIs In November of 1997 Dr Ranganathan CLAIM # 45751 11 completed an AttendIng PhysIcIan's Statement of ContInuIng DIsabIlIty wIth the pnmary dIagnosIs of asthma, hypertensIOn, angIna, COPD and hypercholestrolemIa. He noted that her blood pressure at the tIme was 180/1 00 and opIned that she was now totally dIsabled from any occupatIOn. A July 1998 letter from Dr Ranganathan noted that she had IncreaSIng exertIOnal dyspnea on walkIng about a block, some left sIded neck and shoulder paIn and some heavIness In her chest. An October 1998 letter showed her blood pressure to be 180/1 00 no Improvement In her condItIOn and a suggestIOn that she be reassessed In another month's tIme Finally a December 1998 note from Dr Ranganathan stated specIfically as follows Mrs K IS a patIent of mme who has been followed for uncontrolled hypertenSIOn, angma, hypercholesterolemia as well as sIgmficant COPD and asthma. I beheve thIS lad, IS sIgmficanth dIsabled from her asthma as well as her hypertenSIOn. She IS symptomatic on mIld exertIOn. Therefore she would not be employable On February 20 1998 at the request of the Insurer the claimant attended at an Independent medIcal eXamInatIOn by Dr KopplIn, an Intermst at St. Michael's HospItal He concluded hIS report wIth the folloWIng ThIS woman combmes the Impairments of mIld angma pectons, controlled hypertenSIOn, chromc obstructIve lung dIsease and a remote rotator mJun WIth repair While she has some stresses m her hfe the, do not appear to be severe or Impactmg on her work hfe The obJectIve eVIdence avaIlable mcluded on echo m 1991 whIch showed shghtthIckenmg of the aortIC valve good left ventncular functIOn, mIld [mIcro-regurgItatIOn] and an mcrease m the SIze of her left atnum In 1993 when her symptoms began, a stress thai hum stud, showed a small reversible defect m the mfenor and anteroseptal regIOns An upper GI senes showed a hiatus hernIa WIth a moderate aIUount of reflux she had a prolonged tnal ofLosec for thIS In an admISSIOn m Juh 1996 to St. Josephs HospItal, she had an echocardIOgraIU whIch showed left ventncular hvpertroph, and normal left ventncular functIOn. Her ECG was non-specIfic and her chest film was normal I consIder her to have mIld angma. I do not understand the reason for her hght headedness but would wonder If she has some drug-related postural hypotenSIOn. Ambulaton blood pressure momtonng mIght help venf\ thIS I do not see an, other therapeutIc fine tumng can be done I found no partIcular mconsIstencIes except that the obJectIve eVIdence of coronan arten dIsease IS out of keepmg WIth the sevenn of her symptoms By letter dated November 12 1998 the Insurer adVIsed the claimant that her LTIP benefits would be CLAIM # 45751 12 termInated SIX weeks hence that IS on December 24 1998 The SIX week extensIOn from the prevIOUS expIry date was allowed In order to assIst her In returnIng to work. The basIs of theIr decIsIOn to deny benefits were the echo cardIOgram done In 1991 the ventncular functIOn tests shoWIng an Increase In the SIze of her left atnum, her Stress ThallIum Study done In 1993 but most specIfically Dr KopplIn's OpInIOn that she was suffenng from mIld angIna, controlled hypertensIOn, chromc obstructIve lung dIsease and remote rotator cuff InJury wIth repair It was theIr VIew that there was no obJectIve eVIdence to substantIate an InCapacItatIng physIcal Impairment of such seventy that she could not work. Shortly after the letter denYIng her claim, the Insurer contacted wIth a surveIllance company to report on her actIvItIes She was observed on December 10 14 16 21 and 22 and a report and vIdeotape were provIded to the Insurer A copy of that surveIllance report and vIdeo were sent to the umon In February of 1999 A final letter to the claimant from the Insurer dated July 28 1999 confirmed ItS decIsIOn to dIscontInue her benefits That letter stated, In part, as follows Our most recent assessment of your file has thoroughh exammed all of the medIcal and non-medIcal documentatIOn prevIOush submItted, as well as the subsequent mformatIOn submItted on your behalfb, Dr N Ranganathan. In hIS consultatIOn reports thIS specIahst noted your epIsodes of exertIOnal dyspnea, testmg results reflectmg an elevated cholesterol level and your reports of benefit m usmg mtroglvcenne for your occaSIOnal chest pam. WhIle Manuhfe FmancIal respects Dr Ranganathan s opmIOn that yOu are prevented from workmg, It remams our posItIOn that yOu are capable of performmg the essentIal dutIes of some form of gamful employment. In takmg thIS posItIOn we are not suggestmg that yOu are condItIOn or symptom free but rather that the medIcal eVIdence supports that your symptoms are sufficIenth controlled, WIth some treatment and/or medIcatIOn, to permIt yOu to engage m emplo,ment. Please note that whIle the medIcal documentatIOn confirms your regular attendance WIth a phYSICIan and the prescribmg oftreatment/takmg of medIcatIOn, these m themselves, do not support a state of dIsabiht, as defined b, the long term mcome protectIOn pohc, The most recent assessment of your file had further concluded that your actIVItIes are not consIstent WIth your reported hmItatIOns and restnctIOns It remams our VIew therefore that yOu are not precluded from employment as a result ofvour claim to medIcal condItIOns and symptoms REASONS FOR DECISION CLAIM # 45751 13 It was never senously dIsputed that from 1995 when the claimant suffered a rotator cuff tear untIl the end of 1998 when her L TIP benefits were dIscontInued, she was unable to perform the dutIes of her own occupatIOn and was therefore elIgIble for L TIP benefits The Issue before me IS whether the decIsIOn to deny benefits on the basIs of total dIsabIlIty to perform the dutIes of any occupatIOn was reasonable In the CIrcumstances The Insurer's decIsIOn was, accordIng to ItS letter of November 12, 1998 based on several medIcal reports on the claimant's condItIOn. It accepts that those reports confirm a medIcal condItIOn that had prevented the claimant from performIng her own Job dutIes but reJected the suggestIOn that medIcal condItIOn prevented her from performIng other dutIes, albeIt wIth restnctIOns HavIng consIdered the reports before me I am of the VIew the Insurer came to the nght conclusIOn. The claimant has suffered from and contInues to suffer from a senous medIcal condItIOn that no doubt lImIts her abIlIty and endurance to perform the tasks of many posItIOns However she has been reCeIVIng and contInues to receIve ongoIng treatment for her symptoms She appears to have learned to adJust her lIfe to accommodate her restnctIOns and has had no exacerbatIOns of her condItIOn for some tIme Indeed, the ongInal claim for benefits was based on a rotator cuff InJury that has been long resolved. WhIle there mIght be some resIdual effect of that InJury It has not been suggested that InJury would JustIfy a findIng of total dIsabIlIty from any occupatIOn. The more senous aspect of her condItIOn are the dIagnoses of asthma, hypertensIOn, angIna, COPD and hypercholestremIa. AgaIn, It would appear from the reports on file those condItIOns have been treated successfully and, whIle contInuIng to be symptomatIc, there IS no eVIdence that the claimant IS Incapable of performIng some aspects of gaInful employment. There IS nothIng In the reports that suggest there has been any attempt to measure the seventy of her symptoms to the demands of the workplace In fact, except for some general and non-specIfic references to symptoms, there IS no CLAIM # 45751 14 eVIdence In the file to IndIcate any effort has been made to quantIfy or qualIfy her symptoms ThIS SubcommIttee has repeatedly stated that the mere eXIstence of a dIagnosIs IS not proof of dIsabIlIty The real proof IS found In the effect of the symptoms of a dIsease on the person's abIlIty to perform the dutIes of her own or any posItIOn and to engage In gaInful employment. WhIle the type and amount of work she could manage remaInS questIOnable there IS sImply not enough eVIdence to suggest that she would be unable to perform the essentIal dutIes of some form of gaInful employment. ThIS appeal IS therefore demed. Dated at Toronto thIS 26th day of August, 2001 ~ " Loretta Mikus ,-. j , - - , CLAIM # 45751