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HomeMy WebLinkAbout2001-8010 Benftis Claimant 01-10-01 Decision IN THE MATTER OF AN APPEAL BEFORE THE SUBCOMMITTEE OF THE JOINT INSURANCE BENEFITS REVIEW COMMITTEE REGARDING CLAIM #8010 CHAIR LORETTA MIKUS APPEARING FOR THE UNION MARK BARCLAY APPEARING FOR THE EMPLOYER Y ASMEENA MOHAMED Included In the most recent collectIve agreement between the partIes are the followmg CLAIM # 8010 1 provIsIOns Article 22 - Grievance Procedure Article 22.9 - Insured Benefits Grievance 22 9 I An allegatIOn that the Employer has not provIded an Insured benefit that has been contracted for In thIs Agreement shall be pursued as a Uillon gnevance tiled under ArtIcle 22 13 (Uillon Gnevance) 22 9 I Any other complaInt or dIfference shall be referred to the ClaIms RevIew Subcomrmttee of JOInt Insurance Benetits RevIew Comrmttee (JIBRC) establIshed under AppendIx 4 (JOInt Insurance Benetits RevIew Comrmttee) for resolutIon. Appendix 4 JOINT INSURANCE BENEFITS REVIEW COMMITTEE 1 Name of Committee The Comrmttee shall be referred to as the JOInt Insurance Benetits RevIew Comrmttee 2 Purpose of Committee The purpose of thIs Comrmttee IS to facIlItate commumcatIOns between the Employer and the OPSEU on the subJect of Group Insurance mcludIng BasIc Life Insurance Supplementary Life Insurance Extended Health Insurance Long Term Income ProtectIon Insurance and such other negotiated benetits as may from tnne to tIme be Included m the Group Insurance Plane It IS understood that the Group Insurance benetits to be provIded to employees and the cost sharIng 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 Comrmttee shall be only as set out In these terms of reference 3 Composition of Committee The Comrmttee 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 Comrmttee each party may be accompamed by an Actuary to provIde technIcal advIce and counsel 4 Duties of the Committee CLAIM # 8010 2 3 The dutIes of the COIllIll1ttee shall consIst of the followmg (I) Development of the specdicatIOns for the publIc tendenng of any negotiated benefits wlnch may be Included m the Group Insurance Plan (to cover the bargammg umt only), (n) DetermmatIon of the manner In wlnch the specdicatIOns wIll be made aVaIlable for publIc tendenng, (111) ConsIderatIOn and exarmnatIOn of all tenders subrmtted In response the specdicatIons for tender and preparatIOn of a report thereon, (IV) RecommendatIon to the Government of OntarIO on the selectIOn of the Insurance carner or carners to underwnte the Group Insurance Plans, (v) RevIew of the serm-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 eXIstmg adrmmstratlve procedures The specIficatIOns for tender wIll describe the benefits to be provIded, the cost sharIng arrangement between the Employer and ItS employees the past financIallnstory 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 COIllIll1ttee from any IndIVIdual msurance carner actIng solely on ItS own behalf Tlns 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 subcoIllIll1ttee whose mandate IS to reVIew and make decIsIons on, complaInts or dIflerences InvolvIng the demal of Insured benefits under the Central CollectIve Agreement, when such Issues have not been resolved through the eXIstIng admrmstratIve procedures save and except a complaInt or dIfference arlSlng under ArtIcle 22 9 I (Insured Benefits Gnevance) of the Central CollectIve Agreement. The subcoIllIll1ttee shall be composed of two (2) representatIves selected by the Employer CLAIM # 8010 4 two (2) representatIves selected by OPSEU and an Independent thIrd party who IS agreed to by both partIes (b) Appropnate nnpartIal medIcal consultants shall be available to the subcommIttee In an advIsory capacIty to provIde mformatIOn on the nature of specdic illnesses or dIsabIlItIes @ MembershIp on the subcommIttee shall be for one (1) year penod, and IS renewable at the mscretIOn of the nommatIng 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 bmdIng (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 mVIded equally between the Employer and the Umon. Article 42 - Long Tenn 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 durIng the qualIficatIon penod, and durmg 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, traImng or expenence Subsequent to the sIgmng of thIs collectIve agreement the partIes negotiated and sIgned terms of reference regardmg the establIshment of a subcommIttee to deal wIth dIsputes between the partIes regardIng Long Term Income ProtectIOn (hereInafter referred to as "LTIP") That memorandum stated. JIBRIC CLAIMS REVIEW SUBCOMMITTEE TERMS OF REFERENCE AUTHORITY CLAIM # 8010 5 The JIBRC subcoIllIll1ttee IS establIshed under ArtIcle 22 9 2 and AppendIx 4 of the collectIve agreement between The Crown In Right of Ontano and the OntarIO PublIc ServIce Employees Umon. PURPOSE OF SUBCOMMITTEE To reVIew and make decIsIOns on appeals from employees on clanns mvolvIng 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 subrmt a request m wntIng to OPSEU askmg that OPSEU refer theIr case to the subcoIllIll1ttee 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 SubcoIllIll1ttee represents the final stage In the appeal process The SubcoIllIll1ttee wIll clarIfy medIcal eVIdence as needed, wIth a medIcal consultant agreed to by both MBS and OPSEU DeCISIOns of the SubcoIllIll1ttee 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 subcoIllIll1ttee will consIst of resource representatIves from OPSEU and MBS and an Independent thIrd party "ChaIr" to be named by MBS and OPSEU CLAIM # 8010 6 ROLE OF THE CHAIR" To reVIew case representatIOns from MBS and OPSEU To make a deterrmnatIOns ill 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 tnne facts gIVillg nse to the dIspute arose ROLE OF MEDICAL CONSULTANTS Appropnate Impartial meillcal consultants will be agreed by the partIes and shall be aVaIlable to the Subcomrmttee In an advIsory capacIty If the partIes cannot agree on a medIcal consultant, the ChaIr may callan 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 comrmttee and wIll not provIde an opIillon 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 illsclosure of the supportIng documentatIOn upon whIch they Intend to rely ThIs dIsclosure will take place at least two weeks ill advance of the meetIng of the subcomrmttee dealIng wIth the subJect matter of the appeal If the ChaIr reqUIres clarIficatIOn of medIcal eVIdence a meetIng of the Subcomrmttee 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 # 8010 7 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 testIfymg 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 tile 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 clannant, who shall be allowed a leave of absence wIthout pay wIth no loss of credIts to attend the sub-cOImmttee meetIng as an observer only The ChaIr wIll render a wntten decIsIOn wIth supportIng ratIOnale FREQUENCY OF MEETINGS. On an as needed basIs as deterrmned by MBS and OPSEU JOIntly The partIes agree to these Terms of Reference m support of the nnplementatIOn 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 outstandmg matters are now beIng brought forward before the subcomrmttee 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 CLAIM # 8010 8 At the first day of hearmg 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 dunk 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 prIncIples 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 prIncIples will already by establIshed. The claimant, Mrs M.B appeals the demal of long term dIsabIlIty benefits She IS employed as a PolIcy Analyst for the Government of Ontano In the office for DIsabled Persons Her problems began In 1994 when she complaIned of a nght shoulder paIn wIth occasIOnal radIatIOn to her neck and upper back whIch was becomIng IncreasIngly dIfficult for her to deal wIth. She was born wIth a congemtal absence of her left upper lImbs and had, In the past, suffered from paIn In her nght extremIty because of the asymmetry of her shoulders At that tIme Dr McKee at the OrthopaedIc ClImc of St. Michael's HospItal determIned that she had a clear case of rotator cufftendomtIs of her nght shoulder wIth ImpIngement, most lIkely due to the overuse of her nght shoulder At that tIme he dIscussed the possIbIlIty of surgIcal InterventIOn but was wary of dOIng so consIdenng that It was her only functIOnal extremIty His OpInIOn at the tIme was that the usual course of Improvement, WIth conservatIve therapy would reqUIre between SIX to twelve months An AttendIng PhysIcIan's ImtIal Long Term DIsabIlIty Benefits Statement was completed by the claimant's famIly doctor Dr Vincent, In mId-June of 1994 In that statement Dr Vincent noted that the symptoms had begun In November of 1993 and that total dIsabIlIty had commenced on January 17 1994 Her dIagnosIs was nght shoulder rotator cuff tendomtIs wIth ImpIngement and, whIle notIng that her physIcal Impairment placed her In the ambulatory category capable of medIUm or CLAIM # 8010 9 functIOnal capacIty or lIke actIvIty Dr Vincent stated that "she cannot even hold a pencIl or wnte for a long penod of tIme" She noted that the claimant was dIsabled from performIng her regular occupatIOn or any occupatIOn and suggested that It would take a couple of years for that dIsabIlIty to be resolved. In a follow-up letter dated June 24 1994 from Dr McKee It was stated M.B was revIewed today She contInues to suffer from nght shoulder paIn whIch IS really unchanged or margInally worse than her last VISIt. I had a long talk wIth her today agaIn about the nsks and benefits of operatIve InterventIOn. I don't have much more to offer her In terms of conservatIve therapy at thIS pOInt. M.B IS gOIng to thInk about thIngs and I wIll see her agaIn In three months tIme for reasseSSIng If she wants to go ahead wIth surgery I wIll be happy to see her before then. A consultatIOn was arranged for the claimant to be seen by Dr PUrvIS at the medIcal centre In Newcastle After reVIeWIng her medIcal hIStOry Dr PUrvIS made the folloWIng comments She has now gone on to develop paIn all over She had been ImtIally seen by an OrthopaedIc Surgeon who suggested that she had rotator cufftendomtIs, but by late March, early Apnl she began to expenence exhaustIOn all over mIgratory aches and paInS, stIffness In the mornIng that lasts for hours, exerCIse Intolerance and paInS, not only In the JOInts, but also between. (SIC) These paIns can last for seconds to hours She has not had any ObVIOUS swellIngs that she has been able to see In her JOInts and they have never been red. She has never notIced any PsonaSIS She IS gettIng physIOtherapy at the present tIme and gettIng In the hot tub She concluded wIth the folloWIng ImpressIOn I wonder If thIS lady may have developed a secondary fibromyalgIa on top of the rotator cuff tendomtIs I have seen thIS constellatIOn of problems before and perhaps that IS what IS gOIng on here I have suggested that we try treatIng her for fibromyalgIa wIth exerCIses and a neck support pIllow You have also started her on some Flexerol startIng at 10mg at mght for the first week then 20mg at mght for the second week and IncreaSIng up to 30mg a mght for a month to see If that gIves her any benefit. I have told her that thIS medIcatIOn may gIve her mormng drowsIness and a dry mouth and It IS sometImes effectIve for treatment of fibromyalgIa as well We wIll try and rule out the possIbIlIty of any other underlYIng causes By letter dated July 28 1994 from the Insurer the claimant was notIfied that her applIcatIOn for CLAIM # 8010 10 benefits had been approved on the basIs of total dIsabIlIty from performIng the essentIal dutIes of her normal occupatIOn. She was further advIsed that her benefits could contInue up to a penod of thIrty months from the date of her total dIsabIlIty but that In order to be elIgIble for benefits beyond that thIrty month penod she must be found to be totally dIsabled from performIng the essentIal dutIes of any occupatIOn for whIch she IS reasonably fitted by educatIOn, traInIng or expenence A subsequent applIcatIOn for contInuIng dIsabIlIty was completed by Dr Vincent In November of 1994 At that tIme she noted that the claimant contInued to be totally dIsabled and that she would be off work for at least SIX to twelve addItIOnal months In antIcIpatIOn of the approachIng defimtIOn change date of July IS 1996 the Insurer asked Dr Vincent for an updated medIcal report. Dr Vincent wrote as follows SImply put wIth no left arm, the degree of Impairment she has In her nght shoulder elbow wnst and nght neck (+++ paIn, down power nght rotator cuff, down range of motIOn In her nght shoulder and elbow and multIple tngger pOInts) means that she has less that twenty-five percent use of her upper 11mb She cannot return to work at thIS pOInt ObvIOusly Now that she IS delIvered we wIll work on healIng thIS The reference to her havIng delIvered related to the recent bIrth of the claimant's chIld. In a subsequent applIcatIOn for contInued benefits the claimant noted that she was unable to perform most of the dutIes of chIld care On May 28 1996 the claimant was advIsed by the Insurer that It had been determIned she was currently totally dIsabled from any occupatIOn and her benefits would contInue as long as she contInued to qualIfy under the terms of the contract. In July of 1996 the claimant saw Dr Hardy a general surgeon. His report revIewed the hIStOry of her nght upper quadrant paIn and stated, In part, as follows I thInk that thIS paIn IS lIkely musculoskeletal In ongIn. BIlIary dyskInesIa IS a CLAIM # 8010 11 remote pOSSIbIlIty I have suggested we focus on elevatIng musculoskeletal symptoms She needs to rest the area by aVOIdIng actIvItIes that hurt her but exerCIse by dOIng lots of walkIng and dOIng other lIght actIvIty that wIll strengthen the abdomInal and chest wall muscles wIthout straInIng them. I suggested she try Ice or heat and If eIther of these gIve symptomatIc relIef to contInue USIng It. She IS gOIng to take Idarac for her chest and nght upper quadrant paIn to see If thIS bnngs about some Improvement from the antI-Inflammatory effects She IS gOIng to get back to me after a few weeks and let me know how thIngs are gOIng. If they are not ImproVIng we mIght consIder further InVestIgatIOns such as CCK-stImulated HIDA scan In addItIOn to other tests She seems satIsfied wIth thIS approach and wIll get back to me In about 3-4 weeks to let me know how thIngs are gOIng ThIS IS the first tIme rehabIlItatIOn IS raised as a consIderatIOn and, as a result, the Insurer reconsIdered theIr prevIOus decIsIOn and advIsed the claimant that It needed more InfOrmatIOn to determIne whether her benefits ought to contInue In order to complete ItS documentatIOn It arranged for an Independent medIcal assessment wIth Dr Dornan, who IS a specIalIst In physIcal medICIne and rehabIlItatIOn. In addItIOn to Inqumes about the claimant's condItIOn and her work hIStOry Dr Dornan was provIded wIth a report from DIsabIlIty Management AlternatIves The date of the report was Apnl 20 1997 and It had been prepared by a Mr Weatherley In that report It was noted that lIttle was beIng done In the way of medIcal treatment at the tIme and that the claimant had been through the "gamut of physIOtherapy mampulatIOns etc " to correct her shoulder arm and neck area. It was also noted "It has been a detenoratIng condItIOn because of exceSSIve usage throughout her lIfespan" It also stated as follows The only apparent treatment that relIeves the paIn for a short term was the hot tub or whIrlpool at the HospItal and whIle In the hot tub she was able to mampulate the arm and move It. However the relIef was only short lIved. They are currently puttIng In a whIrlpool In the house so that she may have some relIef from the paIn. Under the headIng ofDAIL Y ACTIVITIES It was stated We talked about what she was able to do at thIS pOInt. She IS lImIted, she has some one help her wIth the chIldren on a regular dally basIs Her husband works shIfts so that he can assIst dunng the off hours She cannot 11ft wIth her nght arm, does not carry a purse and has trouble walkIng any dIstance because of the SWIngIng motIOn of the arm, whIch causes paIn. She IS now findIng that dnvIng In a vehIcle IS also caUSIng paIn on the nght sIde and arm. She advIsed that the day before I arrIved she went to Oshawa whIch IS perhaps 30 mInutes away and the day of my VISIt she was CLAIM # 8010 12 havIng paIn. She does or lIkes to do needlepoInt and had one on the coffee table when I arrIved. It was not fimshed as she advIsed that her mother-In-law had gIven her that Just before she went off on dIsabIlIty and she was stIll workIng on It WIth It beIng nowhere near completIOn. She also lIkes to kmt but agaIn the motIOn USIng her arm causes a lot of problems We talked about workIng on the computer and any movement or use of the arm caUSIng paIn. She advIsed that pnor to her becomIng totally dIsabled her employer had tned to accommodate her wIth dIfferent adaptIve devIces such as foam paddIng for the phone, a laptop computer so that she would be able to work at home, restructunng her work hours or at least beIng more flexIble In regards to her attendIng work. She has not got on the traIn or subway SInce leavIng work, however feels that the JarrIng motIOn of the traIn would be extremely dIfficult. She also looked around town to see what was avaIlable and had not been able to find any posItIOn that she mIght be able to do In addItIOn most of the government Jobs had been closed out of Port Hope and moved to the bIgger centres We talked about USIng a VOIce actIvated computer and she dId note that she could probably use that but would have problems gettIng anywhere Her walkIng motIOn causes paIn. SIttIng In the car she IS restncted from travellIng any great dIstance We talked about workIng out of the home and we could not IdentIfy a Job that would not reqUIre any use of the hand, especIally at home There IS very lIttle opportumty to have an assIstant so all dutIes must be done by that person even If they are sedentary In nature Mr Weatherley's conclusIOn was as follows It would appear that the Insured's arm IS detenoratIng and lImItIng her mobIlIty as she has no left arm and her nght arm IS lImIted In use wIth any movement or usage causes paIn whether It IS that day or the folloWIng day She has had to gIve up a number of hobbles, gardemng, etc and In fact tned dancIng at an anmversary a few weeks back and the gross movements of the body also caused paIn to the shoulder and arm She has taken a number of cortIsone shots and appears that the only medIcal treatment at thIS pOInt would be surgIcal InterventIOn and they would not gIve her a guarantee as to her status after the surgery If she had two arms then she would probably be more receptIve to havIng the surgery however as she only has one arm she does not want to become more restncted than she IS now GIven the lImItatIOn of even gettIng around, rehabIlItatIOn would be dIfficult. Even If we used modern eqUIpment such as VOIce actIvated computers, phones, etc she IS lImIted by vIrtue of havIng paIn whenever she uses her arms or moves the body whIch CLAIM # 8010 13 encompasses travellIng even short dIstances His recommendatIOn was as follows From a rehabIlItatIOn stand pOInt thIS would be a very dIfficult case gIven the physIcal abIlItIes at thIS tIme They do appear to be detenoratIng and have detenorated over the last two and one half years They wIll contInue to detenorate unless somethIng IS done surgIcally or medIcatIOn IS found that stops or Improves the detenoratIOn. Dr Dornan saw the claimant and prepared a report dated July 29 1997 After reVIeWIng her past work and medIcal hIStOry he dealt wIth her current problems as follows I asked M.B to descnbe her current Impairments, dIsabIlItIes and problems for me She enuncIated these as paIn and restncted abIlIty On beIng asked for elaboratIOn of thIS statement, she stated that her restncted abIlIty consIsted of a dImImshed abIlIty to use the nght upper extremIty addIng that there was the dImImshed strength In the nght upper extremIty She stated to me that around thIS pen ad, nerve conductIOn and EMG studIes were camed out In 1994 and these were recorded as beIng negatIve I asked Mrs M.B to explaIn to me what mIght bnng on the paIn, whIch shoots Into her lower extremItIes She responded by statIng, "If I have done too much and If I am tIred" addIng "If! use my arm too much" I explaIned that I had dIfficulty wIth the connectIOn wIth the use of her nght upper extremIty and paIn whIch shot bI-Iaterally Into the postenor aspect of both legs Mrs M.B lIsted such actIvItIes as, "If you do the laundry" and stated that she would have the paIn radIatIng Into both legs If she does the laundry unloads the dIshwasher or makes a batch of muffins She also stated that It had become necessary for them to sell a motor vehIcle because ofMrs M.B 's dImImshed abIlIty to mampulate the steenng wheel or close the heavy doors She also stated that she IS unable to nde In a motor car or other vehIcle because IS aggravates her nght extremIty paIn and stated that the extent of her dIsabIlIty IS such that someone else has to brush her daughter's hair explaInIng to me that thIS IS done eIther by her husband or a homemaker who comes In tWIce or three tImes per week. Mrs M.B also stated that she had found It necessary to cut her own hair short because of dIfficultIes whIch she was expenenCIng In combIng or washIng her hair She also stated that she was unable to push a stroller or push a wagon. Dr Dornan reported that he could find no conVInCIng eVIdence of a sIgmficant rotator cuff pathology and opIned that there was much In Mrs M.B 's presentatIOn that was suggestIve of a strong or even predomInant psychogemc element, much ofwhIch IS suggestIve of somatIzatIOn. He further stated CLAIM # 8010 14 that the dIstnbutIOn of her "altered sensatIOn" wIth a tInglIng paraesthesIa from testIng epIcntIc sensatIOn defies lOgIC He concluded wIth the folloWIng It was my overall ImpreSSIOn that, from a purely physIcal stand pOInt at least, that Mrs M.B IS neIther totally nor physIcally dIsabled. Under usual cIrcumstance, the eXIstence of a rotator cuff tendomtIs or even a cervIcal nerve IrntatIOn wIth brachIalgia, do not render an IndIVIdual eIther totally or permanently dIsabled, partIcularly If the occupatIOn Involved IS predomInantly sedentary as IS the case wIth Mrs M.B'sJob With respect to the possIbIlIty of other factors beIng Involved, I feel that thIS mIght be explored VIa an In-depth IntervIew WIth a sUItably traIned psychologIst and the admInIstratIOn of tests whIch mIght shed lIght on Mrs M.B 's personalIty dnve and motIvatIOns In response to dIrect questIOns posed by the Insurer Dr Dornan stated that he belIeved that the claimant had suffered from a cervIcal nerve root IrntatIOn In 1993 possIbly wIth a concomItant rotator cuff tendomtIs, but that she had In large measure recovered from that. It was hIS VIew that there was a strong psychogemc element In addItIOn to her prevIOUS physIcal problems It was hIS belIef that her present level of dysfunctIOn could be Improved wIth further medIcal treatment and dIagnosed her as suffenng from cervIcal nerve root IrntatIOn wIth nght arm brachIalgIa (resolved/resolvIng) and psychogemc magmficatIOn. His conclusIOn was uneqUIvocally that wIth respect to the purely physIcal aspects of her prevIOus employment she would be capable of carryIng out the dutIes descnbed In the Job descnptIOn that had been provIded to hIm He also suggested that a vocatIOnal assessment and work capacIty evaluatIOn would be of some value In establIshIng a dIagnosIs whIch would Include the physIcal, emotIOnal and socIal aspects of Ms M.B's presentatIOn. In May of 1998 the claimant completed a questIOnnaire for the Insurer whIch dealt wIth the actIvItIes of dally lIvIng. In that questIOnnaire she noted that she was extremely restncted In her abIlIty to perform most of the actIvItIes of dally lIvIng. She stated that the paIn In her shoulder was constant and relIeved only at tImes by Demerol or Tylenol Her level of actIvIty around her house was entIrely dependant on her level of paIn on any gIven day If the paIn was sufficIently controlled, she CLAIM # 8010 IS was able to dress herself and assIst her chIldren In prepanng breakfast. Other days she was unable to dress herself and consequently dId even less around the house dunng the day In late October of 1997 the claimant was advIsed that the Insurer had arranged a Task SpecIfic FunctIOnal EvaluatIOn to evaluate her physIcal capabIlItIes, tolerance of range of motIOn and her abIlIty to SIt, stand, walk etc A note dated October 29 1998 from Dr Vincent stated SUCCInctly "at thIS pOInt I am not prepared to clear M.B for work. I have referred her to be assessed by Dr Mason" By letter dated January 18 1999 Dr PUrvIS responded to the Insurer's letter by notIng first that she had seen Mrs M.B on SIX occasIOns dunng whIch tIme she had been suffenng from chronIC paIn In her nght arm She wrote as follows Her pnmary lImItatIOns and tolerance for work actIvItIes relate to the paIn that she IS havIng In her nght shoulder Currently she tells me that the narcotIcs are makIng her feel drowsy and her paIn level IS even hIgher than It had been when I had seen her back In September She has been unable to do the household tasks at home and has the lIve-In nanny canng for her chIldren and has a housekeeper employed to do all of the housekeepIng. I belIeve that she IS permanently Impaired from her pre-dIsabIlIty Job She IS currently not even Independent In the home I find It hard to ImagIne what kInd of occupatIOn thIS woman could do If she IS not even able to do the household tasks such as takIng care of her chIldren, makIng meals, cleamng etc I am sure that you could have her evaluated to see If there were any occupatIOns that she would be sUItable for but I can't ImagIne what they would be and I certaInly strongly support her claim for chronIC long term dIsabIlIty Pursuant to the arrangements made by the Insurer the claimant attended for a Task SpecIfic FunctIOnal EvaluatIOn for four hours on November 16 1998 and for three and one-half hours on November 18 Under the headIng of PatIent BehavIOur It was noted that the evaluator observed InCOnsIstent performance wIth the tests attnbuted to self lImItIng effort. Those InCOnsIstencIes Included phYSIOlogIcal responses that dId not support her paIn reports and a faIlure for her heart rate to Increase wIth paIn. Her phYSIOlogIcal responses dId not support her effort or exertIOn. Her perceptIOn of her abIlItIes was InCOnsIstent WIth the observed results of the evaluator For example, CLAIM # 8010 16 Mrs M.B rated her neck paIn at 70% affectIng all aspects of her abIlIty to manage everyday lIfe but her observed abIlItIes IndIcated that she had the abIlIty to manage her dally affairs DealIng wIth the questIOnnaire, she scored herself as beIng capable of performIng J ob demands less than those of a sedentary Job whereas she demonstrated the abIlIty to meet the full tIme demands of a research analyst. Under the ClImcal Assessment FIndIngs It was noted that under cervIcal spIne shoulder elbow posture and gait, whIle the claimant showed reduced flexIOn and extensIOn and self-lImItIng effort, she was found to be able to meet the Job demands of a research analyst. It was concluded that In her present condItIOn Mrs M.B 's capacIty for physIcal exertIOn was approxImately 77% that of a normal healthy person. It was at thIS tIme that the Insurer ImtIated surveIllance of the claimant. That surveIllance was conducted In January of 1999 however It was not forwarded to the Umon untIl July of 1999 The first letter of demal of benefits, whIch was dated In March of 1999 makes no mentIOn of the vIdeos but a subsequent letter In July of 1999 contaInS the folloWIng comments wIth respect to the observatIOns on the vIdeotapes We have observed your abIlIty to carry small Items Independently along wIth many aspects ofloadIng and unloadIng a truck, wIthout assIstance despIte numerous people avaIlable to help Arm movements appeared qUIck and smooth wIth no eVIdence of self lImItIng behavIOur In addItIOn, we have noted your abIlIty to operate a van wIth no apparent dIfficulty apprehensIOn or dIscomfort. The above observed actIvItIes are not concordant wIth the degree of outlIned dysfunctIOn, nor suggestIve of an InabIlIty to perform sedentary physIcal demands The Insurer dId not rely on the results of the vIdeo tapes In ItS ImtIal decIsIOn to deny benefits Rather It stated It had based ItS demal on the prevIOUS FunctIOnal AbIlItIes EvaluatIOn of November 1998 whIch found that she was capable of performIng the demands of a research analyst on a full tIme basIs It acknowledged Dr PUrvIS' assertIOn of lImItatIOns WIth regard to tolerance for work actIvIty but stated that It had been provIded wIth no clImcal or obJectIve eVIdence to substantIate a dysfunctIOn of a seventy that necessItated an ongoIng absence from the workplace The Insurer noted Dr Dornan's conclusIOn that workIng would provIde no nsk to her or others and commented on the psychogemc element In her presentatIOn at Dr Dornan's office Based on the transferable CLAIM # 8010 17 skIlls educatIOn and traInIng done by the rehabIlItatIOn counsellor posItIOns were noted as beIng commensurate wIth her abIlIty to work, whIch Included a foreIgn student advIsor admInIstratIve assIstant, work study coordInator specIal educatIOn and a research assIstant. Based on all of the foregoIng, the Insurer advIsed her that she no longer satIsfied the defimtIOn of total dIsabIlIty under the contract wIth the Insurer and that, In order to assIst her financIally dunng the antIcIpated transItIOnal pen ad, her benefits would contInue untIl June 30 1999 The Insurer also offered her rehabIlItatIOn assIstance WIth resume preparatIOn and J ob search assIstance The claimant decIded to appeal that demal In response to that appeal the claimant was wntten a letter dated July 7 1999 from the Insurer In whIch It made reference once agaIn to the vanous medIcal reports on file as well as the Transferable SkIlls AnalysIs and F AE and concluded as follows "we find there IS a lack of clImcal eVIdence obJectIve findIngs or medIcal documentatIOn suggestIve of total dysfunctIOn as a result of a physIcal or psychologIcal dIsorder of the seventy to necessItate your contInued work absence" That July letter contaIned a copy of a letter from Dr Vincent to the Insurer dated June 10 1999 whIch read as follows ThIS unfortunate lady has congemtal absence of left upper 11mb - she hasn't worn prosthesIs In years SInce It was very uncomfortable and dIdn't add to her functIOn. BasIcally her whole functIOn upper 11mb WIse IS determIned by the condItIOn of her nght arm SInce 1994 she has had ongOIng problems wIth her nght shoulder She developed adhesIve capsulItIs whIch dId not respond to treatment (see your prevIOUS notes from me and vanous specIalIsts) Now she has chromc nght arm/shoulder/neck/upper back paIn and severe functIOnal lImItatIOn of her nght 11mb - on bad days she basIcally has no upper 11mb abIlIty - on good days she can do easy cookIng, lIght dustIng etc I can not ImagIne her returmng to work - unless she had a Job that rarely Involved the use of her nght shoulder/arm/hand - please phone me - I feel thIS lady IS IncredIbly legItImate REASONS FOR DECISION ThIS claimant's problems clearly arose because of the overuse of her nght arm and shoulder whIch was In turn caused by the congemtal absence of her left upper extremItIes There was no dIspute CLAIM # 8010 18 for the first several years of her claim concermng the fact of and the extent of her dIsabIlIty She was ImtIally dIagnosed wIth rotator cuff tendomtIs In late 1993 and early 1994 By mId 1994 the localIzed paIn In her shoulder seemed to have spread throughout her body and It was quened whether she had developed fibromyalgIa. On the basIs of those medIcal reports she was awarded long term dIsabIlIty benefits for thIrty months She was found at that tIme to be unable to perform the essentIal dutIes of her own occupatIOn as a PolIcy Analyst. In 1996 the Insurer was provIded wIth medIcal reports that stated the claimant was stIll expenenCIng extreme paIn and lImIted range of motIOn and was unable to perform the dutIes of any occupatIOn. Indeed, because she had to depend entIrely on her nght shoulder and arm, It IS not surpnSIng that It began to protest from the overuse and abuse The Insurer In an effort to substantIate or dIsprove her claim for benefits, arranged for a functIOnal abIlItIes test whIch concluded that the claimant's arm had lImIted mobIlIty and was detenoratIng. She contInued to suffer from severe paIn and It was the OpInIOn of the examIner that rehabIlItatIOn would be dIfficult. It was also hIS VIew that the claimant's condItIOn would only become worse wIth tIme An Independent medIcal consultant, In July of 1997 came to an entIrely dIfferent conclusIOn. Dr Dornan could find no eVIdence of her angInal InJury and, In fact, concluded that her symptoms were more lIkely psychogemc In nature and that her personalIty dnve and motIvatIOn should be assessed. It was hIS OpInIOn that she was physIcally fit to perform the dutIes of a sedentary Job such as a PolIcy Analyst and that a vocatIOnal assessment and work capacIty evaluatIOn be conducted to establIsh a comprehensIve dIagnosIs The claimant's descnptIOn of her physIcal state were set out In her actIvItIes of dally lIvIng questIOnnaire for the Insurer She restated her contInUOUS paIn and lImIted mobIlIty She had to resort to assIstance In the home to care for her famIly and perform her household chores CLAIM # 8010 19 At the Insurer's request she attended at a Task SpecIfic FunctIOnal EvaluatIOn In November of 1998 The evaluator felt the results of the tests were InCOnsIstent WIth her actual abIlItIes and that she had shown herself to be capable of carryIng small Items WIth no ObVIOUS dIfficulty and capable of dnvIng a van. ThIS report was followed by a medIcal report dated January 1999 that stated the claimant was permanently dIsabled from performIng her pre-dIsabIlIty Job Further the physIcIan stated that he could not ImagIne what work would be appropnate for thIS claimant consIdenng her paIn and lImIted mobIlIty That confusIOn led the Insurer to ImtIate surveIllance on the claimant to venfy her actual level of actIvIty at home That surveIllance showed the claimant was able to carry small Items such as a steppIng stool, clothIng Items and blankets She was seen dnvIng seen van In a safe and competent manner She was observed havIng a good tIme In the company offnends and dId not appear to need assIstance from them In dOIng thIngs around the house She was seen helpIng her spouse carry a cnb to the car and handIng hIm a black garbage bag. Dunng the move to her new house she made several tnps to the mOVIng van carryIng a lamp and a duffle bag. The problem In determInIng the claimant's nght to L TIP benefits lIes In reconcIlIng the seemIngly InCOnsIstent reports from the vanous doctors and F AE evaluators NotwIthstandIng the fact that her symptoms began In late 1993 the first IndIcatIOn that there was a possIbIlIty of rehabIlItatIOn IS found In the July 1996 report of Dr Hardy who suggested some lIght exerCIse to strengthen her muscles and some methods of relIevIng her symptoms of paIn. He also stated that If those efforts proved fruItless, there were alternatIve InVestIgatIOns and treatments to be consIdered. That report led to the F AE done In Apnl of 1997 whIch concluded that the claimant was extremely lImIted In her actIvItIes and that rehabIlItatIOn would be futIle gIven the detenoratIng nature of her dIsabIlIty Three months later after one VISIt, Dr Dornan arnved at a completely dIfferent conclusIOn about her physIcal condItIOn but suggested Instead that her problems had a psychogemc basIs He dId not, however suggest that she was fit to return to work at that tIme The next two medIcal reports on file uneqUIvocally state In clear terms that the claimant IS permanently dIsabled from returmng to work. Contrast that wIth the report from Task SpecIfic CLAIM # 8010 20 FunctIOnal EvaluatIOn whIch found her to be wIthm 77% of the physIcal capacIty range of a normal healthy person. In my VIew the only explanatIOn for the dIscrepancy m the reports must be found m the famIlIanty of the report wnters wIth the claimant. Dr Doman saw the claimant once and he was focussed on a status report of her ongmal dIagnosIs of rotator cuff tendomtIs Not surpnsmgly after all of the tIme that had passed smce she was last reqUIred to perform the repetItIve work that had precIpItated the tendomtIs, her symptoms had all but dIsappeared. He could find no resIdual problems from that condItIOn and felt her contmumg complamts of pam and restncted movements were more psychologIcal than physIcal and that her motIvatIOn should be assessed. The problem wIth hIS conclusIOns IS that they are the result of a very short assessment of her physIcal condItIOn and do not seem to take mto consIderatIOn the problem of the effects of the repetItIve nature of the movements that caused the ongmal problems m her nght shoulder His conclusIOns are consIstent WIth those of the assessors at Task SpecIfic FunctIOnal EvaluatIOns who found her fit to return to her pre-mjury job However once agam, that assessment was based on a total test tIme of7 5 hours and dId not factor m the effects of repetItIve motIOn on her nght arm and shoulder I have no doubt that Mrs M.B can do the tasks mvolved m her pre-mjury posItIOn as a PolIcy Analyst, at least m the short term. The questIOn IS really whether she IS able to perform the job tasks for a sustamed penod of tIme such that she should be consIdered melIgIble for further benefits NeIther Dr Doman nor the Task SpecIfic tests address that Issue On the other hand, the contrastmg reports appear to be more forceful m theIr support ofMrs M.B 's claim Dr Vincent has been consIstent m her VIew of the claimant's mabIlIty to return to the workplace For the first thIrty months of her dIsabIlIty It was accepted by all that she was unable to return to work. With the defimtIOn change m 1996 Dr Vincent reIterated her opmIOn that the claimant could not work. Dr PUrvIS was doubtful anyone could find a job to fit wIthm her restnctIOns Mr Weatherly observed the claimant m her own envIronment and concluded that she was an unlIkely candIdate for rehabIlItatIOn gIven the detenoratmg condItIOn of her arm and shoulder CLAIM # 8010 21 That takes me to the vIdeo surveIllance of the claimant. In Its final decIsIOn to deny the claim, the Insurer relIed, In part, on the actIvItIes the claimant was seen to be capable of perfonmng. It showed her carryIng small Items, drIVIng a van and enJoYIng the company of her frIends None of those actIvItIes are In my VIew InCOnsIstent WIth Dr Vincent's OpInIOn of the claimant's abIlItIes When she went off work InItIally she was In severe paIn and found It dIfficult to do almost anythIng. Even carIng for her chIldren and brushIng theIr hair was problematIc If she dId somethIng one day she paid for It the next. Not surprISIngly as tIme passed, the paIn decreased and her mobIlIty Increased. That Improvement IS most lIkely the result of rest. AVOIdIng repetItIve motIOns no doubt reduced the straIn on her shoulder and arm and now allows her to perform sImple and non-repetItIve actIvItIes An InabIlIty to perform the dutIes of any occupatIOn does not mean that a person must be unable to perform any actIvIty at all That would be such a strIct test that very few people would ever be found to be elIgIble for L TIP benefits beyond the first thIrty months The test must be reasonably applIed and take Into consIderatIOn the actual condItIOn of the claimant In the real world of today In thIS case the claimant only has her rIght arm and shoulder to help her perform the actIvItIes of dally lIvIng and the workIng dutIes ofaJob Because of the overuse of that rIght sIde, she developed problems related to the straIn on her rIght sIde of carryIng all of the load. The acute symptoms of the straIn contInued for some tIme and even some three years later her condItIOn was found to be essentIally unchanged wIth respect to paIn and mobIlIty The fact that she was observed carryIng small Items or drIVIng a van does not necessarIly mean that she can resume the dutIes of a Job In the workplace It sImply means that she can do some thIngs There IS no eVIdence before me that she IS ready to assume the regular and repetItIve dutIes of a posItIOn In the workforce The eVIdence I do have clearly shows that repetItIve movements of her rIght arm and shoulder have resulted In an InCapacItatIng condItIOn that has lasted, In one form or another for many years The challenge would be to find a posItIOn that does not reqUIre any repetItIve motIOn on any contInuous basIs and that does not compromIse her rIght sIde to the extent that she becomes even more restrIcted than she has been. The Importance of aVOIdIng another Injury to her rIght sIde IS ObVIOUS Any Job that would CLAIM # 8010 22 place her In a posItIOn of nskIng another penod of extreme paIn and lImIted mobIlIty such as the one she has expenenced SInce 1994 would clearly be contraIndIcated. DECISION In the cIrcumstances, It IS my OpInIOn that she remaInS totally dIsabled from performIng the essentIal dutIes of any occupatIOn and her appeal succeeds Dated thIS 2nd day of October 2001 ~ .' ~ - - ~ . '- ~ . Loretta Mikus CLAIM # 8010